Advertising: Slogan “As important as the daily glass of milk!” does not mislead the consumer

On 12 February 2015 (I ZR 36/11) the German Federal Court of Justice (BGH) held that the slogan “As important as the daily glass of milk!” for advertising a fruit quark does not qualify as a misleading advertisement under the German Unfair Competition Act (UWG).

In the underlying case the defendant Ehrmann, a dairy factory, produced and sold the fruit quark “Monsterbacke”, which was advertised with the aforementioned slogan. The plaintiff, the Centre for Protection against Unfair Competition (Zentrale für die Bekämpfung unlauteren Wettbewerbs), was of the opinion that the defendant violated unfair competition law by not mentioning that the sugar content in its product was higher than the sugar content in milk and further by not fulfilling the requirements of Health-Claim Regulation No. 1924/2006 (Regulation) since the slogan contains information relating to the nutritional value and health. Hence the plaintiff sought an injunction.

However, the BGH took a different view. Firstly, the Court held that there is no misleading of the consumer, as the consumer knows that the composition of a fruit quark is different than the one of milk. The comparison between milk and the fruit quark quite obviously does not refer to the amount of sugar in those products, especially taking in regard that a fruit quark consists of more fruit sugar by its nature than milk does. The consumer rather cares about the main feature of milk, i.e. its capability of supporting bone growth. In this context, the Court points out that the “Monsterbacke” consists of at least the same level of calcium as milk. 

Secondly, the Court ruled that consumers do not understand the slogan in question as a nutrition claim, but rather as a health claim as defined in Art. 2 II No. 5 of the Regulation. It argued that the slogan is based on the idea that children and teenagers should drink one glass of milk per day to support their health. However, if the defendant actually violated its obligations to give the necessary information with regard to the health claim is a matter of fact. Hence the BGH remitted the case to the competent Higher Regional Court (OLG).