OGH: All Flavour, No Fruit in Misleading Juice Ad

Jul 19, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has made it clear that using flavouring in soft drinks is misleading if consumers would expect real fruit juice judging from the packaging.

The defendants manufacture and market a soft drink which bears on its label lifelike images of a whole lime, a slice of lemon, and three mint leaves together with the wording ‘Bio Limo leicht’ (organic light lemonade) and ‘Zitrone Limette Minze' (lemon lime mint).

The organic lemonade contains a natural mint flavour and a natural lime flavour, but these are only constituents of a blend of different natural citrus flavours. The drink is also advertised in online shops, including on the websites of two supermarkets, as follows: ‘Its fruit content consists of organically grown fruit’, and ‘The combination of sparkling [...] mineral water and organically grown lemon, lime, and mint (...)’.

The plaintiff sought an injunction against the defendant for misleading advertising under Section 2(1)(2) of the Austrian Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb, UWG). The injunction seeks to prevent the defendant from giving the false impression that the organic lemonade the company markets contains actual fruit or herbal ingredients. In fact, its ingredients are present only in the form of flavouring.

The court of first instance dismissed the case. The court of appeal prohibited the defendants from continuing to advertise their drink unless the company clearly stated that the drink did not contain actual lime juice and/or mint extract.

The defendant’s product featuring the striking and realistic image of a slice of lemon, a whole lime, and four mint leaves, does in fact lead the average consumer to expect that the drink consists of lemon juice, lime juice, and mint leaves, largely in their natural form.

The correct list of ingredients on the back of the bottle as well as the fact that the use of flavourings in soft drinks is legal in Austria would not prevent consumer deception created by the eye-catching label. The decision of the court of appeal was therefore confirmed by the OGH.

OGH 4 Ob 25/24s (23 May 2024)