Advertising food supplements is subject to strict regulation - legal requirements and 2026 guide, with a free initial assessment of your specific case
Strict legal rules on advertising food supplements: health-related advertising, food law, HCVO, pharmaceutical law
Advertising food supplements (NEM) is subject to the strict legal rules governing food advertising, or the even stricter rules governing medicinal product advertising. As demand for vitamins, minerals and herbal preparations continues to grow, manufacturers and retailers face the key question of how to promote products effectively without breaching legal requirements.
The reason for the strict regulation is consumer protection. Food supplements are either foods. In that case, they are subject to the strict consumer-protection requirements of food law governing food advertising. However, food supplements are often also associated with health-related or even medicinal effects. A food supplement may qualify as a medicinal product based solely on the content of such advertising. In that case, the particularly strict rules of medicines advertising law apply. Unlawful claims—for example, claims that suggest a cure or are not scientifically substantiated—can be challenged immediately by means of a competition-law cease-and-desist letter and an application for an interim injunction.
Legal certainty in advertising offers businesses several advantages:
- Avoid legal risks: clear, legally compliant messaging can prevent cease-and-desist letters, product recalls, fines and lengthy court proceedings.
- Building consumer trust: Responsible, transparent advertising conveys credibility and professionalism.
- Competitive advantage: Businesses that advertise in a legally compliant way build a stronger position over time than brands that attract negative attention with misleading claims.
Definition of “food supplement”
Food supplements contain substances such as vitamins and minerals, which are also found in ordinary foods in concentrated form. They may also contain plant or animal ingredients, for example as garlic powder or fish oil. Food supplements are intended to supplement the normal diet. They are concentrates of nutrients or other substances with a nutritional or physiological effect, offered in measured doses, for example as capsules, lozenges, tablets, pills, sachets of powder, liquid ampoules, bottles with dropper inserts and similar dosage forms. Under Article 2(a) of Directive 2002/46/EC on food supplements and Section 1 NemV, food supplements are classified as foods. However, these definitions are irrelevant when determining whether food supplements are subject to the general rules of competition and food law or the particularly strict rules of medicinal product law.
The legal framework for advertising food supplements
UWG
All food supplements are subject to the German Act Against Unfair Competition (UWG), particularly its rules on misleading advertising and unfair commercial practices. The principles developed by the courts on health-related advertising are particularly relevant to food supplements.
Example: Violation of § 5(1), sentence 1 UWG: Food supplements must not be misleadingly presented as medicines. Displaying the warning “For risks and side effects, read the package leaflet and ask your doctor or pharmacist” is therefore misleading, as it creates the false impression that these products are medicines (OLG Dresden, judgment of 15 January 2019 – 14 U 941/18).
Medicines law
Advertising a food supplement that is classified as a medicinal product is subject to the strict principles governing the advertising of medicinal products.
HCVO
When advertising food supplements as food, particular attention must be paid to the „Health Claims Regulation“ - HCVO -. The HCVO is intended to provide consumers with clear information. Advertising is health-related if the treatment being advertised targets health. It is also health-related, however, if it concerns aesthetic goals and the treatment involves an intervention in physical integrity, for example fat removal through cryolipolysis (OLG München v. 5.7.2018 - 29 U 1866/17 - Bye-bye-Hüftgold).
German Food and Feed Code (LFGB)
Food supplements are also subject to the rules of the LFGB.
Food Information Regulation – LMIV
The Food Information Regulation (LMIV) must also be observed for food supplements, which are classified as food. The LMIV prohibits the use in food advertising of information that could mislead consumers about a food’s characteristics, effects or properties. This also applies to medical properties attributed to a food. Article 7(1) LMIV prohibits various forms of misleading information. Under Article 7(4)(a) LMIV, this prohibition also applies to advertising.
Distinction: Are food supplements foods or medicinal products?
Distinction from medicinal products
A product can legally be either a food or a medicinal product, but not both (§ 2(3) No. 1 AMG and Article 2, third paragraph, point (d) of the General Food Law Regulation). Correct classification is often difficult, particularly for food supplements. If a food supplement is legally classified as a medicinal product, the strict rules on advertising medicinal products apply. The intended purpose determines whether a product is classified as a medicinal product or a food, as perceived by the average consumer who is reasonably well-informed, reasonably observant and circumspect (BGH, judgment of 6.5.2004 - I ZR 275/01 - Sports Nutrition II).
Examples: Food supplements presented as medicinal products
Advertising a food supplement using the warning “For risks and side effects, read the package leaflet and ask your doctor or pharmacist” constitutes unlawful advertising of a presentation medicinal product (OLG Dresden v. 15.1.2019 – 14 U 941/18 – Medicinal product warning in advertising for food supplements or cosmetics).
A product for building muscle mass, in turn, is not necessarily a presentation medicinal product. A product’s muscle-building effect does not invariably indicate a medicinal purpose. Rather, such a product may serve to meet the specific physiological needs and resulting nutritional requirements of a particular group, such as elite, strength or endurance athletes, and therefore qualify as a dietary food within the meaning of Section 1(2) No. 1(b) DiätVO (BGH, judgment of 6.5.2004 - I ZR 275/01 - Sports Nutrition II).
Examples: Food supplements classified as functional medicinal products
Capsules containing the active ingredient melatonin are functional medicines because of melatonin’s pharmacological effect, despite being labelled “food supplements” (OLG Celle, 2 February 2017 – 13 U 153/15 V – Melatonin capsules as functional medicines).
Functional medicinal products are, however, only products whose pharmacological properties have been scientifically established and which are actually intended to make a medical diagnosis or affect physiological functions. Substances that act on the human body but do not have a significant effect on metabolism are not functional medicinal products (Court of Justice of the European Union, judgment of 15 November 2007 – C-319/05 Commission v Germany, Garlic Extract Powder Capsule).
Examples: Food supplements as foods
Where a product consists primarily of a substance that is also naturally present in a food, it has no significant effect on metabolism if, when used normally, its effects on physiological functions do not go beyond those that a food consumed in a reasonable quantity may have on those functions (BGH, judgment of 26. 6. 2008 – I ZR 61/05 – L-Carnitin II). Such food supplements are foods, not medicinal products.
The CJEU ruled that garlic-extract powder which, at the recommended dose, contained the same amount of allicin as 7.4 g of raw fresh garlic could not be classified as a medicinal product. The powder’s physiological effects could also be achieved by consuming the corresponding amount of garlic as a food (CJEU, judgment of 15 November 2007 – C-319/05 Commission v Germany, Garlic Extract Powder Capsule).
The practitioner’s handbook on advertising law for medicinal products, food supplements, health claims, foods for special medical purposes, medical devices and cosmetics
Buy now and avoid costly warning letters
Advertising for health-related products is subject to particularly strict legal regulation. Courts set high standards for health-related claims. Advertising for medicines and other remedies, medical devices, food supplements, foods for special medical purposes and cosmetics is also restricted by specific laws and regulations. The risk of cease-and-desist notices and legal disputes is particularly high for these products. This book sets out the current legal position using several hundred examples from case law.
Back to table of contents
1st edition, November 2024, 408 pages, XchangeIP Verlag, available from bookshops or Amazon
ISBN 978-3-00-079406-3
Examples of impermissible advertising claims for food supplements
Violations of the Health Claims Regulation
Violations of the Health Claims Regulation are particularly often challenged in advertising for food supplements.
Examples:
- Calling a food supplement a “fat burner” is an unlawful claim about a particular property covered by the Health Claims Regulation. It gives the average consumer the impression that the food has the particular property of positively affecting fat burning (see Koblenz Higher Regional Court, 30 Jun 2021 – 9 U 1268/20 – Fat Burner).
- The statement „For everyone longing for gentle help with a good night’s sleep.“ in relation to a passionflower-containing food supplement with melatonin (OLG Düsseldorf, 20.4.2023 – I-20 U 65/22 – online advertising using health claims for a melatonin-containing food supplement).
- For a food supplement containing vitamins C, D and B6 and zinc, the terms “healthy immune system” are not synonymous or equivalent in meaning to the authorised claim under the Health Claims Regulation, “normal immune system”. “Healthy” as opposed to “normal” suggests that the food supplement also has an effect when the consumer is not healthy (Munich Higher Regional Court, 21 Dec 2023 – 29 U 4088/22 – Healthy Immune System).
Breaches of the UWG
Advertising for food supplements also often violates the Act Against Unfair Competition (UWG).
Example: Violation of § 5(1) sentence 1 of the German Unfair Competition Act: Food supplements must not be misleadingly presented as medicinal products. The warning “For risks and side effects, read the package leaflet and ask your doctor or pharmacist” is therefore misleading, as it creates the false impression that these products are medicinal products (Higher Regional Court of Dresden, judgment of 15 January 2019 – 14 U 941/18).
Violations of the Food and Feed Code (LFGB)
Food supplements are also subject to the prohibition on misleading consumers under the LFGB.
Example: Breach of the prohibition on misleading consumers under § 11 LFGB (in conjunction with § 4 No. 11 UWG): Despite the clearly legible notices on the packaging stating that the product consists of “food supplement tablets”, a product may be classified as a (presentation) medicinal product if its prominently displayed name, typography and colours remind consumers of familiar medicinal products, and if it is sold exclusively through pharmacies (OLG Köln, judgment of 12. 10. 2007 - 6 U 56/07 Donaprevent).
Special requirements for environmental claims under the EmpCo Directive
Strict requirements for environmental claims and sustainability labels under the “EmpCo Directive” from 27 September 2026
As of 27.9.2026, advertising claims such as “sustainable” or “eco-friendly packaging” will be subject to the strict requirements of the “EmpCo Directive”. You may face cease-and-desist notices over misleading environmental claims and sustainability labels.
Read here: Requirements for environmental claims and sustainability labels under the EmpCo Directive
Legal risks and consequences of violations
Businesses that violate the strict rules governing advertising for food supplements risk serious legal and financial consequences. Even minor wording errors can prove costly.
Cease-and-desist notices from competitors, qualified trade associations and qualified entities
Competitors keep a particularly close eye on their rivals’ market conduct. Many have themselves already received cease-and-desist notices and are therefore alert to unlawful advertising for food supplements.
Cease-and-desist letters from qualified trade associations and qualified entities
Qualified trade associations (e.g. the Verband Sozialer Wettbewerb e.V. or Wettbewerbszentrale) and qualified entities may also issue cease-and-desist notices under competition law. These associations often take action on the basis of information provided by their members.
Legal action
Unsuccessful cease-and-desist letters are often followed by court proceedings, usually in the form of preliminary injunction proceedings.
Fines and penalties
Finally, impermissible advertising may also result in fines imposed by the authorities, since the relevant provisions also provide for administrative fines.
Author: Thomas Seifried, Lawyer specialising in medicinal product advertising law and Specialist lawyer for intellectual property law
Received a cease-and-desist letter for advertising food supplements?
Cease-and-desist letters from competitors and trade associations
Competitors and industry associations take action against unlawful advertising for food supplements and challenge it by sending a cease-and-desist letter under competition law, requiring the recipient to give a cease-and-desist undertaking backed by a contractual penalty. Court proceedings are usually brought as applications for preliminary injunctions. Details matter in these cases. Get in touch.
Thomas Seifried, lawyer specialising in food supplements -
Free initial assessment of your specific case
Competition law attorney Thomas Seifried has over 20 years’ experience in competition and advertising law and has been a specialist attorney for intellectual property law since 2007. Thomas Seifried advises and represents pharmacists and companies distributing health products, food supplements, cosmetics and medical devices. Thomas Seifried is the author of the practitioner’s handbook “Advertising for Health and Beauty with Legal Certainty” and is a contact for leading media outlets on advertising law. As an attorney specialising in the law governing advertising of medicinal products, he advises and represents clients nationwide, both out of court and in court, with notable successes before regional and higher regional courts.