The Hamburg regional court has banned Emporgy GmbH from advertising a powder for preparing energy drinks by saying that the drink improves concentration and performance. The court thus upheld a lawsuit brought by the Federal Association of Consumer Organizations (vzbv). The advertising contained prohibited information. The verdict is not yet legally binding.

That's what it's about: Energy drink for gamers with special properties

The beverage manufacturer had advertised the product Emporgy Mango Passionfruit Flavor on its website - a caffeine-containing powder for preparing so-called energy drinks. The “lifestyle drink gives you the power, performance and concentration you need for your desired activities,” it said, among other things. Better focus and the right concentration are crucial, especially in gaming. That's exactly why the Emporgy Focus Booster was developed." The vzbv had criticized that these and other statements were inadmissible and scientifically unbacked health advertising.

Violation of EU regulations

The court agreed with vzbv's opinion that the advertising violated the European Union's Health Claims Regulation. Accordingly, companies are only allowed to advertise health-related claims that have been tested and approved by the European Food Safety Authority. This is intended to protect consumers from misleading and scientifically unsubstantiated information.

According to the court, the disputed formulations are health-related claims because they establish a direct connection between consumption of the product and improved concentration and ability to react. The necessary approval is missing for these claims.

Health-related claims may only refer to the nutrient for which they are approved. The advertising with its effect on concentration and responsiveness did not refer to caffeine, but to the drink in general. Caffeine wasn't even mentioned in the disputed passages.

Details about the verdict

Date of judgment: January 19, 2023
File number: 312 O 256/21 - not legally binding
Court: Hamburg Regional Court

The judgment. Image: vzbv
The judgment. Image: vzbv

Source:

Federal Association of Consumer Organizations
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