Under Art 6(1) of Regulation (EC) No 1924/2006 (the Health Claims Regulation),¹ nutrition and health claims must be based on and substantiated by generally accepted scientific evidence. Infringements of this provision are punishable in Austria under the Food Safety and Consumer Protection Act (LMSVG). As the Regional Administrative Court of Tyrol² confirmed, an "organic herbal detox tea" falls foul of this requirement:

"Detox" Contradicts the Generally Accepted State of Scientific Knowledge

Background

The appellant was convicted at first instance for selling "Organic Herbal Detox Tea" in her shop. The Austrian Agency for Health and Food Safety (AGES) identified the term "detox" (Entschlackung) as a health claim that is not supported by the generally accepted state of scientific knowledge. In her appeal, the appellant herself argued that the concept of "detoxification" does not exist in conventional medicine and therefore cannot constitute a health claim at all — on the basis that what does not exist need not be proven.

Decision

The LVwG Tyrol rejected this line of argument, holding that the word "detox" (Entschlackung) does constitute a health claim. The decisive criterion for whether a health claim exists is the perception of the general public — "that is, the impression formed upon cursory reading by a not insignificant portion of the target audience, having regard also to the overall impression conveyed by the communication."³

The court further relied on the German Federal Court of Justice (BGH) Detox decision.⁴ In that case, the BGH had confirmed that the product name "Detox" for the respondent's tea did not merely refer to general, non-specific benefits for health or health-related well-being within the meaning of Art 10(3) of the Health Claims Regulation, but rather constituted a specific health claim within the meaning of Art 10(1) of that Regulation. What applies to "detox tea" therefore applies equally to "detoxification tea."

At first instance, the appellant had also been convicted in respect of the claims "diuretic", "vitalising effect…", and "good for the stomach". However, the LVwG was required to set aside those penalties due to formal deficiencies in the penalty notice.

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Sabadello Legal advises and represents manufacturers of food products and food supplements, among other areas. Our clients include food law start-ups as well as established SMEs and international corporations. If you have questions about food law, we would be happy to assist. We advise on food law (LMSVG), labelling and compliance, and product controls — from risk analysis and regulatory communication through to defending against official measures and administrative penalties.

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Sabadello Legal
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Disclaimer

This article is for general information purposes only. It does not constitute individual legal advice.

Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on foods.↩
LVwG-2023/50/2911-3 of 24 January 2024.↩
Referring to VwGH 93/10/0143 of 18 October 1993.↩
BGH of 29 March 2017, case no. I ZR 71/16.↩

Detox Tea and the Health Claims Regulation