Advertising with wild berries for drinks without wild berries is not permitted
Vienna (OTS/VKI) – The Association for Consumer Information (VKI) had sued DrinkStar GmbH on behalf of the Ministry of Social Affairs because of misleading product presentation. Specifically, it was about the soft drink “Gröbi Waldbeere”, which did not contain any wild berry juice, even though wild berries were depicted realistically on the bottle label. The Vienna Commercial Court (HG) had already recognized this as misleading under competition law and the Vienna Higher Regional Court (OLG) had confirmed the judgment. Now the Supreme Court (OGH) also rejected DrinkStar GmbH’s appeal. The judgment is therefore legally binding.
The well-known soft drink “Gröbi” is available in several flavors, including “Gröbi Wild Berry”. Its bottle label is decorated with lifelike images of local fruits such as blackberries, blueberries and raspberries. On the website, the drink is described, among other things, with the description “This is what home tastes like. Enjoy berry-good. Like a basket of fruit freshly picked in the forest“ touted.
In fact, “Gröbi Waldbeere” does not contain any components of wild berries, neither in the form of juice (concentrate) nor in the form of natural flavors of the fruit. The VKI saw this as a misleading product presentation and filed a lawsuit. The HG Vienna already followed the legal opinion of the VKI and prohibited DrinkStar GmbH from this type of advertising because the product does not contain any juice or juice concentrate of the fruits depicted. “The court ruled that such a presentation would be inadmissible even if the drink contained natural flavors of the fruits depicted,” explains Dr. Barbara Bauer, lawyer at VKI, the verdict.
As a result, the Vienna Higher Regional Court confirmed this decision and stated that correcting the list of ingredients does not change the ability to mislead, as large groups of consumers do not read it or do not read it with much attention. The Vienna Higher Regional Court did not accept DrinkStar GmbH’s objection that consumers would only understand the fruits depicted as an indication of the flavor. Nor does Gröbi Waldbeere meet the requirements of the Food Code for soft drinks. In the court’s opinion, this does not exclude the possibility of the product presentation being misleading.
The extraordinary appeal brought against this by DrinkStar GmbH was rejected by the Supreme Court.
“The VKI checks and inspects numerous products every year through the food check we set up. We also regularly take legal action against misleading claims. This ruling is another important contribution to the implementation of factual product information in marketing in the food industry,” emphasizes Dr. Barbara Bauer concludes.
SERVICE: The full text of the judgment is available at www.verbraucherrecht.at/Groebi032024.
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