OLG: Alcohol is not "digestible" in beer

Stuttgart Higher Regional Court prohibits advertising by the Swabian Härle brewery
Beer must not be advertised as "wholesome". Such advertising is not compatible with EU requirements and is therefore anti-competitive, judged on Thursday, November 3, 2016, the Higher Regional Court (OLG) Stuttgart (Az .: 2 U 37/16). Accordingly, the European Court of Justice (ECJ) in Luxembourg and the Federal Administrative Court in Leipzig had already ruled on wine.

In 2015, the Härle brewery in Leutkirch in the Allgäu in Swabia advertised three types of beer as "digestible", for example the "Härle Gold" with an alcohol content of 5.1 percent as "digestible, easy to drink - but not difficult". The “Association for Social Competition” based in Berlin considered this to be inadmissible and sued.

The background to this is the “Health Claims Regulation” of the EU from 2006. According to this, health-related advertising for drinks with an alcohol content of more than 1.2 percent by volume alcohol is prohibited.

In the dispute over supposedly digestible wine, the ECJ had already emphasized that this applies even if the statement is true in itself; it is enough that "the mere maintenance of good health is suggested despite the potentially harmful consumption" (judgment and JurAgentur announcement of September 6, 2012, ref .: C 544/10). The Federal Administrative Court then ruled that wine should not be advertised and marketed as "digestible" (judgment and JurAgentur report of February 14, 2013, ref .: C 23.12).

The OLG Stuttgart has now transferred this case law to beer. The word "digestible" is usually understood as "easily digestible", "beneficial" or even "healthy". Ultimately, this means the “long-term promise” that the food advertised in this way is at least in no way harmful. Such a promise is not compatible with EU law.

However, the EU regulation allows exceptions for terms that are traditionally used with certain foods. With "digestible" beer that is "not remote", the Stuttgart judges explained. However, such an exception requires formal approval. So far, this is not the case. Against his judgment, the OLG approved the revision to the Federal Court of Justice (BGH) in Karlsruhe.

At least on the Internet, the brewery now uses the description "full-bodied, tasty - but not difficult" for its "Härle-Gold". mwo / fle

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