Hamburg Regional Court: Health Advertising for "Gamer" Energy Drink Inadmissible

In its decision of 19 January 2023 (Case No.: 312 O 256/21), the Regional Court of Hamburg had to deal with the admissibility of various statements advertising an energy drink in which the drink was said to increase the ability to concentrate and react. The question arose as to whether such statements could constitute an infringement of Art. 10 para. 1 Regulation (EC) No. 1924/2006 ("Health Claims Regulation”; "HCR"), especially since this regulation generally prohibits advertising with health claims, which the Regional Court of Hamburg in its decision affirmed.

The plaintiff is an association registered under Sec. 4 German Injunctions Act ("UklaG”). The defendant is the manufacturer and distributor of a beverage powder for the preparation of energy drinks, which is particularly popular in "gamer" circles. The defendant advertised the powder on its website with the promise that it increases power, performance, concentration, responsiveness, focus and energy, which is "particularly important in the gaming sector". The plaintiff was of the opinion that such advertising claims constituted a breach of Sec. 2 UKlaG in conjunction with Art. 10 HCR as well as a breach of Sec. 8, 3, 3a German Unfair Competition Act ("UWG”) in conjunction with Art. 10 HCR. The claims were specific health claims within the meaning of Art. 10 HCR, which first had to be scientifically proven. The defendant, on the other hand, took the view that the advertising claims in question were merely non-specific (and therefore permissible) claims within the meaning of Art. 10 para. 3 HCR.

In its decision, the Regional Court of Hamburg followed the plaintiff's argumentation and categorised the advertising claims in dispute in accordance with Sec. 2 UKlaG in conjunction with Art. 10 para. 1 HCR as inadmissible. The court argued that the advertising claims contained specific health claims, especially as a link was established between the consumption of the product and the performance and cognitive functions of the body, which fell under the prohibited claims within the meaning of Art. 10 para. 1 HCR. With regard to the statement relating to the ability to react, the reference to health arises from the fact that the drink is said to have a positive effect on concentration. The claim relating to reactivity also constituted a specific health claim, as reactivity is a specifically measurable physical function. However, such statements were not included in the list of permissible claims under Art. 13 para. 3 HCR and were also not permitted under the transitional provisions of Art. 28 para. 5 HCR. Moreover, health claims may only refer to the nutrient for which they are authorized, whereas the advertising at issue did not refer to the caffeine contained in the drink but to the drink in general. According to the Hamburg Regional Court, the statements were therefore inadmissible overall.