The German Federal Supreme Court issued a decision on whether a company can advertise an energy drink and vodka mixed beverage with the designation “Energy & Vodka.”

On October 9, 2014, the German Federal Supreme Court (Bundesgerichtshof – BGH) held that it is permissible to use the term “ENERGY & VODKA” for an alcoholic mixed beverage. According to the court, the term “Energy” is not classified as a “claim” under Art. 2 para. 2 no. 1 of Regulation (EC) No 1924/2006 on nutrition and health claims made on food1 (“Health Claims Regulation”). The court explained that the term “Energy” does not imply that the food product itself has particular characteristics, but merely provides objective information about the characteristics of a class of food products.

Facts of the Case

The claimant was an industry association known as the “Protective Association of the Spirits Industry” (Schutzverband der Spirituosen-Industrie e.V.). The defendant distributed alcoholic and non-alcoholic beverages, including mixed beverages containing vodka and one other ingredient.

The claimant petitioned to forbid the defendant from distributing a mixed beverage containing vodka with the product designation “Energy & Vodka,” arguing that the product designation is both a nutritional and health claim, in violation of the Health Claims Regulation.

Rationale for the Decision

The German Federal Supreme Court denied the claimant’s request for injunctive relief based on Art. 4 para. 3 subpara. 2 of Regulation (EC) No 1924/2006. According to the court, the term “Energy” is not a “claim” under Art. 2 para. 2 no. 1 of Regulation (EC) No 1924/2006.

According to Art. 2 para. 2 no. 1 of Regulation (EC) No 1924/2006, “claim” means any message or representation in any form which states, suggests, or implies that a food has particular characteristics.

According to the court, a “claim,” as defined under Art. 2 para. 2 no. 1 of Regulation (EC) No 1924/2006, does not exist when the message or representation merely refers to a characteristic of a food that is inherent to all food products within that same product category. In such a case, there is no steering effect that justifies the restriction.

In the view of the court, the product designation “ENERGY & VODKA” does not imply that the beverage itself has special characteristics. The stimulating effect referred to under the designation “Energy” is merely a feature inherent to all energy drinks and is not a unique characteristic of the specific product.

In line with recital 5 of Regulation (EC) No 1924/2006, however, generic descriptors (denominations) that have traditionally been used to flag a unique characteristic of a class of foods or beverages that could imply an effect on human health, such as “digestive” or “cough drops,” should be exempt from the application of this Regulation.

It remains to be seen whether future cases will follow this decision of the German Federal Supreme Court.