Fatburner,
not to be used in
advertising.
Fatburner,
not to be used in
advertising.
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The term “fatburner” is an inadmissible health claim for food supplements. The Bamberg Higher Regional Court has ruled that the term “fat burner” in connection with dietary supplements is a specific health claim, the use of which is misleading.
Violation of the Health Claims Regulation
Strict regulations apply to the advertising of health claims on foods . These arise primarily from the EU Health Claims Regulation (HCVO) and Food Information Regulation (LMIV). The threshold for a health claim is quickly reached. This includes all statements that declare, suggest or even only indirectly express that there is a connection between the food and health. The OLG Bamberg has ruled Judgment of 04.12.2024 – Ref. decided that the term“fat burner” in connection with dietary supplements constitutes such a claim.
The claim “Figura Fatburner” on the product packaging of a food supplement is a specific health claim […] It suggests that the product in question increases fat burning and thus contributes directly to weight reduction
The defendant was a company that sells health and diet products, cosmetics and pharmaceuticals of all kinds. The subject of the dispute was a dietary supplement that the company marketed as“Figura Fatburner“. The front part of the packaging contained the following addition:
With choline and chromium for fat metabolism.
The following information was found on the back of the packaging:
Fat metabolism is a highly complex system that also includes fat burning. Everyone knows that physical activity and a calorie-reduced diet play an important role in this. But you can do even more
Figura Fatburner capsules contain active ingredients* that support fat metabolism
*Choline contributes to normal fat metabolism. Chromium contributes to a normal metabolism of macronutrients (fat, protein, carbohydrates)
Consumer protection association intervenes
A consumer protection association objected to this presentation and sent the company a warning letter. The Bamberg Higher Regional Court ruled that this was the law. The company’s defense was that the term“Figura Fatburner” was covered by the approved health claims for choline and chromium. The statement was to be considered in general and in context. These objections did not prevail before the court.
Fat burner is a specific health claim
The court stated that the term “fat burner” is generally understood as a substance that directly promotes the body’s own fat burning. The term establishes a direct link between the intake of the product and weight reduction through the reduction of excess body fat. These are simple English terms that the average consumer understands as “fat burners” in this composition. The essence of the statement is that by taking the product, increased fat burning can be achieved by accelerating the fat and energy metabolism.
From the court’s point of view, the case could not be assessed differently if the claims were placed in the context of the overall product presentation. According to the court, the company did not explicitly advertise accelerated or increased fat burning. However, the court deduced that the claim“but you can do even more” creates the expectation in the average consumer that the product at least has a beneficial effect on fat burning.
The core of the claim is that taking the product can increase fat burning by accelerating fat and energy metabolism.
This establishes a direct causal link between the intake of the food and a function of the human organism, namely fat metabolism.
Specific vs. general information
In contrast to specific claims, general health claims do not refer to a specific effect or property. They merely suggest a general connection with health. One example is the claim“Good for your health“. Such claims cannot be included in the list of authorized health claims as they do not demonstrate any specific effects. They may only be used if they are supplemented with an approved specific claim. Accordingly, the company’s argument was that the claim“fat burner” was of a general nature. Its use should be permitted on the basis of the specific health claims for chromium and choline. This did not convince the court.
Effect goes beyond approved health claims
The court took into account the fact that the product contained other ingredients that were also said to have an independent beneficial effect on fat burning. In addition, it interpreted the flat stomach depicted on the front of the product as a further indication of a direct fat-reducing effect. As a result, this was a specific health claim that was not included in the list of permitted claims under the Health Claims Regulation (HCVO). The term“fat burner” has a meaning that goes beyond the permitted claims for choline and chromium. This attributes an effect to the food that it does not have. According to the Food Information Regulation (FIR), this is misleading.
Conclusion
The relativization of an alleged effect by stating approved health claims for individual components of the food is not able to change the overall impression in such a way that the accusation of misleading is no longer applicable. It remains the case that it must be carefully examined for each individual case whether a product name creates an expectation in the average consumer that is also permitted as such for the food.
In order to avoid costly cease and desist letters and unnecessary costs for the design of legally non-marketable product names, companies should therefore seek advice at an early stage and have the planned product design of food products checked for legal admissibility.
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