The advertisement for a medication against diarrhea with the claim “L. stops diarrhea” is impermissible if the medication does not stop the diarrhea within a few hours. The 6th Civil Senate of the Schleswig-Holstein Higher Regional Court, responsible for competition law matters, prohibited the use of the slogan in a recently published judgment.
Facts of the case: The defendant is a pharmaceutical provider. Among other products, it distributes the preparation L. in Germany, whose active ingredient consists of freeze-dried lactic acid bacteria. It advertised the medication, among other things, with the claim “L. stops diarrhea”. In its advertising, it referred to a scientific study which showed that the duration of diarrhea, when treated with L., was reduced by an average of 1.3 days to just under two days compared to a group that had received placebos.
The plaintiff association, whose purpose is to uphold fair advertising in the healthcare sector, issued a warning to the defendant for misleading advertising, arguing that it was not proven that the medication stopped diarrhea, meaning the effect occurred quickly, immediately, and unequivocally. The defendant rejected the warning. From its perspective, the advertising slogan merely creates the expectation among consumers that the diarrhea would be “noticeably alleviated” within a few hours. Consequently, the association filed a lawsuit for an injunction against the advertising.
Grounds for judgment: The advertising claim “L. stops diarrhea” is misleading and thus constitutes an impermissible commercial practice under the Act Against Unfair Competition (UWG). The slogan creates in the consumer the – undisputedly disappointed – expectation that the diarrhea would be completely stopped within a few hours (certainly not only after 2 days), meaning that all symptoms would have disappeared by then. If the diarrhea is not completely stopped within a few hours, but only noticeably alleviated, this expectation is not met. The court does not follow the defendant's argument that the term “stop” merely denotes the beginning of a process. According to common linguistic usage, for example, a car does not “stop” at a traffic light merely by slowing down as it passes the light, but only when it actually comes to a complete halt at the light.
Even though the defendant has, in the interim, replaced the slogan "L. stops diarrhea" with "L. combats diarrhea" in its internet advertising, this does not eliminate the risk of repetition, which is a prerequisite for the injunctive relief claim. This is particularly true as the original slogans are still used in print advertising.
Higher Regional Court of Schleswig-Holstein, Judgment of January 30, 2014, File number 6 U 15/13
Source: Press release, Higher Regional Court of Schleswig-Holstein
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
