German Food Information Regulation (LMIV) – Legal requirements for food advertising, with a free initial assessment of your case

The FIR restricts food advertising

For foods, and in particular food supplements, the advertising restrictions in the Food Information Regulation (FIR) must be observed in addition to the Health Claims Regulation. The FIR prohibits the use of information in food advertising that could mislead consumers about the food’s characteristics, effects or properties. This also applies to medicinal properties attributed to a food. Under Article 7(1) FIR, various forms of misleading information are prohibited. This prohibition on misleading consumers also applies to advertising (Article 7(1)(a) FIR).

Violations of the LMIV are often pursued by means of a competition-law warning letter or an application for an interim injunction.

Prohibition on misleading claims about diseases under Article 7(3) LMIV

Key principles of the LMIV

Under Article 7 of the Food Information Regulation (LMIV), information about food (defined in Article 2(1)(a) LMIV in conjunction with Article 2 of Regulation (EC) No 178/2002—the General Food Law Regulation) must not be misleading. This prohibition on misleading claims also applies to advertising (Article 7(1)(a) LMIV). 

Under Article 7(3) of the Food Information Regulation, foods must not be attributed with properties of preventing, treating or curing a human disease. This is intended to prevent food from being regarded as a substitute for medicinal products that enables effective self-treatment. The prohibition on misleading claims also applies to advertising.

Disease-related claim within the meaning of the Food Information Regulation

A claim is disease-related if it directly or indirectly suggests to the consumers addressed that the food being advertised can help prevent, treat or cure a human disease (OLG Frankfurt, judgment of 12 September 2019 - 6 U 114/18 – Anti-Hangover-Drink).

A specific disease does not have to be named. Clear descriptions of a disease are sufficient—for example, where symptoms are described and an indirect link is made to a particular disease, rather than merely pointing to a health-promoting effect. If a food supplement is prominently advertised with the claim “urinary tract and prostate disorders,” this constitutes a disease-related claim (KG Berlin, 4 October 2022 – 5 U 1023/20 – Krankheitsbezogene Werbeaussagen für ein Nahrungsergänzungsmittel zur Einnahme bei Harnwegs- und Prostatastörungen).

A disease is any disruption of the normal condition or functioning of the body, even if it is only minor or temporary (OLG Frankfurt, 12.9.2019 – 6 U 114/18 – Anti-Hangover-Drink). Even minor or temporary disruptions of the body’s normal condition or functioning that can be cured—that is, eliminated or alleviated—and that are not merely normal fluctuations in performance constitute diseases. Advertising is disease-related as soon as information prompts an average consumer to associate it with diseases. It is not necessary for the consumer to have a specific disease in mind (OLG Munich, 15.12.2022 – 29 U 386/21 – ZU JEDEM ANTIBIOTIKUM).

Conditions that are not diseases are natural physiological states. Not considered a disease

Examples of impermissible disease-related claims under Article 7 LMIV. Misleading claims include

Essential for pharmacists and drugstore operators:

“Advertising for Health and Beauty with Legal Certainty”



The practical guide to medicines advertising law and advertising for food supplements, health claims, foods for special medical purposes, medical devices and cosmetics – available from bookshops or Amazon

Advertising for health-related products is subject to particularly strict regulation. Courts impose high standards on health-related claims. Advertising for medicinal products 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 litigation is particularly high for these products. This book explains the current legal position and includes hundreds of examples from case law.

Contents:

• Selection of terms, texts and media
• Advertising with Trademarks
• General principles of competition law, misleading and comparative advertising, advertising with prices and discounts
• Search engine optimisation and search engine advertising, social media and influencer marketing
• General requirements for health-related advertising
• Prohibitions and restrictions under medicines advertising law
• Advertising for medicinal products, pharmaceutical price controls, and advertising discounts and benefits
• Advertising medical devices
• Advertising food supplements, especially HEALTH CLAIMS
• Advertising for foods for special medical purposes
• Advertising for cosmetic products

Back to table of contents

1st edition, November 2024, 408 pages, XchangeIP Verlag, available from bookshops or Amazon

ISBN 978-3-00-079406-3

Prohibition on misleading consumers about characteristics under Article 7(1)(a) of the Food Information Regulation (LMIV)

Food information must not be misleading under Article 7, particularly with regard to the food’s characteristics, including its nature, identity, properties, composition, quantity, durability, country or place of origin, and method of manufacture or production. These characteristics also include the amount to be consumed.

Example (OLG München, 5 August 2021 – 29 U 1726/21 – “Snacking for Beauty”) It is misleading to advertise a food supplement containing a high dose of cholecalciferol (vitamin D) in gummy bear form with

“Snacking for beauty”

if the amount recommended by the German Federal Institute for Risk Assessment (BfR) to be taken under medical supervision is reached after eating just two gummy bears. This is because the term “snacking” suggests enjoying them one at a time, over a short period.

Misleading claims about food category

The characteristics of a food also include its membership of a product category (BGH, 13 July 2023 – I ZR 68/21 – Bakterienkulturen). It is therefore misleading to describe a product as a “food for special medical purposes” if it does not meet the requirements for foods for special medical purposes.

Example  Advertising capsules for irritable bowel syndrome using the words “for dietary management” suggests that the product is a food for special medical purposes. The advertising is misleading if the product does not meet the requirements for such a product (BGH, 13 July 2023 – I ZR 68/21 – bacterial cultures; likewise KG Berlin, 2 January 2024 – 5 U 1015/20 – Marketing a food for special medical purposes for herpes simplex).

Prohibition on misleading claims about effects or properties a food does not have under Article 7(1)(b) LMIV

Under Article 7(1)(b) of the Food Information Regulation, food advertising must not be misleading by attributing effects or properties to the food that it does not possess. However, the strict requirements for health-related advertising do not apply here. Scientific substantiation of the advertised effect is nevertheless required if the advertisement refers to studies and consumers understand it to mean that the product’s efficacy has been scientifically proven. For the purposes of the Food Information Regulation, a single study may provide sufficient scientific evidence if it is based on convincing methods and findings (Higher Regional Court of Munich, 20 May 2021 – 29 U 536/20 – Beauty Drink).

Example (Higher Regional Court of Munich, 20 May 2021 – 29 U 536/20 – Beauty Drink)A “Beauty Drink” marketed as a food supplement and containing the active ingredients collagen peptide (Verisol) and glucosylceramide (Ceramosides Powder Neutra) was advertised in the magazines “freundin” and “Harper’s BAZAR” with the following text:“About the ingredients in ‘A4 […]’:

“Collagen gives structure to the middle layer of the skin (dermis), while ceramides are an important component of the outer layer (epidermis), which in young skin stretches tightly over the dermis like a sail. Ceramides keep the skin hydrated, thereby keeping collagen fibres elastic, and have been shown to reduce wrinkle formation, according to the findings of a new study”,

By referring to a “study,” the statement leads consumers to expect scientific evidence for the claimed effect of the combination of ceramides and collagen. Since no such study existed, the statement was misleading.

Specific requirements for environmental claims under the EmpCo Directive

Strict requirements for environmental claims and sustainability labels under the “EmpCo Directive” from 27.9.2026

Advertising claims such as “sustainable” or “environmentally friendly packaging” will be subject to the stringent requirements of the “EmpCo Directive” from 27 September 2026. Cease-and-desist notices may be issued over environmental claims and sustainability labels.

Read here: Requirements for environmental claims and sustainability labels under the EmpCo Directive

Who is responsible for misleading food advertising under the LMIV?

Under Art. 8(1) LMIV, the food business operator under whose name or business name the product is marketed is responsible for information about a food. It is not decisive which food business operator offers the product to the end consumer or between which parties a purchase contract for the food is concluded, but rather the name under which it appears on the consumer market. This is intended to relieve retailers of responsibility for circumstances outside their business or sphere of influence; their responsibility is limited to the sphere of influence they control (OLG Düsseldorf, 6 August 2015 – I-2 U 11/15 – Hängewangen). The operator of a teleshopping channel may also be jointly responsible as a food business operator under Art. 8(1) LMIV if, during a teleshopping broadcast, the presenter asks the manufacturer's representative leading questions so that the representative can make unlawful claims (see OLG Düsseldorf, 6 August 2015 – I-2 U 11/15 – Hängewangen).



Author: Thomas Seifried, Lawyer specialising in medicinal product advertising law and Specialist lawyer for intellectual property law