Federal Court of Justice (BGH): Cease and desist letter due to lack of indication of the basic price when selling food supplements in capsule form

A recent judgment of the Federal Court of Justice of 23 March 2023 (ref. I ZR 17/22) deals, inter alia, with the obligation to indicate the basic price for a food supplement offered via an online shop.

The plaintiff sold food supplements, including amino acid products in capsule form, via its stationary retail shops and an online shop until it discontinued its business operations. In contrast, the defendant operated a pharmacy that also offered various amino acid products in capsule form for sale via an online shop, but without indicating the basic price. The plaintiff therefore sued for injunctive relief, arguing that when advertising pre-packaged food supplements, the basic price must always be indicated in close proximity to the total price.

In its judgment of 23 March 2023, the Federal Court of Justice confirmed the opinion of the Court of Appeal and found that the advertised amino acid product was a pre-packaged product offered by weight and that, as a result, the obligation to indicate the basic price pursuant to Sec. 2 para. 1 sentence 1 PAngV in the version applicable until 27 May 2022 (old version) applied. Pursuant to Sec. 2 para. 1 PAngV old, which essentially corresponds to Sec. 4 para. 1 sentence 1 PAngV new, a person who offers goods to consumers on a commercial or business basis or regularly in any other manner in pre-packages, open packages or as sales units without wrapping according to weight, volume, length or surface area must, in addition to the total price, also indicate the price per unit of quantity including VAT and other price components (basic price) in the immediate vicinity of the total price.

An offer according to weight already follows from the corresponding special legal obligation to indicate the net quantity of a food product under Art. 9 para. 1 lit. e of the EU Food Information Regulation. The defendant was also not exempt from this obligation pursuant to Art. 23 para. 1, 3 in conjunction with Art. 23 para. 1 lit. No. 1 lit. c Annex IX EU Food Information Regulation. According to this provision, the indication of the net quantity is not obligatory for foodstuff that are normally marketed by number of pieces, provided that the number of pieces is easily visible from the outside and easy to count or is otherwise indicated on the labelling. The Court of Appeal correctly found that the amino acid products in capsules at issue were not marketed by number of units. The exemption provision of Art. 23 para. 3 in conjunction with No. 1(c) of the Annex to the Directive does not apply. No. 1(c) Annex IX to the EU Food Information Regulationonly covers "lumpy" products where, from the consumer's point of view, the lump ¬- as in the case of fruit, vegetables or eggs ¬- constitutes the "natural" unit of measure. Amino acid products, on the other hand, are generally offered in various forms, such as powder, liquid or tablet. According to the public's perception, amino acid products in different pharmaceutical forms are not different foodstuffs. Contrary to the opinion of the appeal, marketing by number could not be assumed on the grounds that amino acid products were food supplements. It could not be inferred from the wording of Sec. 1 para. 1 no. 3 NemV, according to which food supplements are foodstuffs marketed in dosed form, that they are marketed in quantities. Sec. 1 para. 1 no. 3 NemV mentions, in addition to "chunky" dosage forms such as capsules or pills, dosage forms such as liquids and powders.

The ruling of the Federal Court of Justice is of considerable practical relevance. Even at a higher court level, there has been disagreement about how food supplements offered in capsule form must be labelled. The OLG Celle (judgment of 9 July 2019 - 13 U 31/19) and the OLG Cologne (judgement of 26 March 2019 ¬ 6 W 26/19), for example, were of the opinion that food supplements that are already portioned or whose daily dose is indicated in tablets are offered by number of units. The Federal Court of Justice now refrains from this very individual approach with regard to the specific preparation and its individual composition. Instead, the judges in Karlsruhe clarify that the starting point for the exemption from the labelling obligation is only the foodstuff itself, not its form of presentation, which can be freely chosen by the manufacturer. If a food supplement is also offered in other dosage forms in addition to the capsule form, this (uniform) food is not a food that is normally marketed by number of units.

Co-Authors: My Anh Cao und Christoph Behm