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Time and again, advertising claims are used by companies to make their products stand out from the competition. One supplier of organic eggs advertised with the statement “eggs from chickens proven to be salmonella-free” until the Celle Higher Regional Court put him in his place.
What is it about?
A supplier was selling organic eggs from Denmark in Germany. There was a sticker on the egg carton stating:
Eggs from chickens proven to be salmonella-free.
The background to this is that in Denmark, laying hen flocks have been tested for salmonella every two weeks since 2013. Because of this government control program, Denmark – alongside Sweden and Finland – has a special position in the EU when it comes to combating salmonella in animals and animal products.
A competition association objected to the claim “eggs from demonstrably salmonella-free hens” in the organic and free-range eggs was unfair because it violated the prohibition of misleading statements under food law and the general prohibition of misleading statements. The targeted public assumes on the basis of the statement that the advertised eggs are actually salmonella-free. Even if the hens are checked every two weeks, this does not mean that they can be warranted to be salmonella-free. The incubation period for salmonella is only 6 to 27 hours, rarely longer.
Decision on eggs from salmonella-free hens
The OLG Celle (Judgment of 11.11.2021 – Ref. 13 U 84/20 ) essentially confirmed the lower court, which had already prohibited the supplier of eggs from salmonella-free hens from making this statement.
The targeted consumers assumed from the advertising that the eggs advertised in this way came from hens whose freedom from salmonella had been proven by a corresponding test at the time the eggs were laid or, in any case, before the eggs were placed on the market. This is clear from the wording and the fact that the labels with the information also show the specific packing location with the respective packing date and a barcode.
The public therefore has the idea that the hens that laid the eggs in the carton are demonstrably free of salmonella. For the consumer, there is no evidence to suggest that it is actually only a matter of bi-weekly salmonella tests, in which not the individual hens but excrements from the flock are tested.
For such a statement to be admissible, every chicken would basically have to be tested every day to ensure that it is free of salmonella.
Conclusion
The advertising with eggs from salmonella-free chickens once again clearly shows that precise language must be used in advertising under competition law . If the advertising had been limited to truthfully depicting the type and scope of the salmonella tests, the advertising would probably not have been misleading.
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