In proceedings involving two supermarket chains brought under the Unfair Competition Act for alleged unfair commercial practices, the Supreme Court ruled that the slogan "HOFER PREIS, ALLES ANDERE IST OVERPRICED" (Hofer price – Everything else is overpriced) constitutes blatant advertising – a promotional statement without any credibility or validity.
CBD products continue to be widely available. In November 2020, the Court of Justice of the European Union ruled – for the first time – on the legality of CBD, clarifying in its judgment that CBD does not constitute a narcotic drug as defined in the United Nations Single Convention on Narcotic Drugs; this is the case irrespective of whether the CBD is produced synthetically or obtained naturally from the hemp plant – and from which parts (seeds and leaves vs. flowering and fruiting tops) (CJEU 19 November 2020, C-663/18). This ruling also has legal consequences for cosmetics and foodstuffs.
The question of who bears responsibility for ensuring that food is labelled in compliance with the law is an issue of practical importance: Is it the manufacturer or the retailer?
Harmonised European Union legislation that imposes an obligation to indicate the country of origin or place of provenance of foods does not preclude Member States from adopting additional national legislation providing for additional mandatory particulars regarding the origin or provenance. However, certain conditions must be met. In particular, there must be an objectively proven link between certain qualities of the food and its origin or provenance.
Bottled "natural mineral water sourced from the ***-rock spring", marketed under the trade name "Babywasser" (Baby water), may not be described by the terms "high quality water" and "boiling not required" as this is self-evidently misleading.
In general, the "cumulation principle" applies with respect to administrative criminal law. If several administrative offences are committed, each individual violation is fined without there being an aggregated penalty.
"Coenzyme Q10 Capsules", "L-Carnitine Tartrate (Lonza)" and "L-Carnosine Capsules", all three of which are designated as food supplements, shall not be attributed and advertised with the disease-related claim that the product in question or its contents may boost cardiac output from 8 % to 33 %.
In practice, the question often arises whether a retailer is responsible for infringements relating to the labelling of branded goods. Article 8 of the Food Information Regulation (Regulation (EU) No 1169/2011, "FIR") provides an answer to this question.
Clients often enquire whether an administrative penalty can be imposed once only or per product in connection with the placing on the market of products. Answering this question (which is rarely relevant in practice) is difficult and depends on the circumstances.
Under EU law, inter alia, the following signs are not to be registered as trade marks: "Trade marks which are contrary to public policy or to accepted principles of morality" (Article 7(1)(f) of Council Regulation (EC) No 207/2009). On this basis, registration of the device trademark "CANNABIS STORE AMSTERDAM" as an EU trademark was recently refused.