Oppenhoff & Partner represents Opfermann Arzneimittel GmbH in successful proceedings before the Federal Court of Justice concerning dietary foods

Distribution of supplementary balanced dietary products now only possible subject to strict preconditions

The sued enterprise had advertised and distributed the supplementary balanced dietary product "Glucosamin Naturell Forte" whose active ingredient glucosaminsulfate is also contained in a comparable concentration in various other food supplements that are available on the market. In these proceedings, the claimant had objected to the defendant’s distribution of the product as a “supplementary balanced dietary product”.

The key question was whether or not the consumption of food supplements represents a “modification of normal nutrition” within the meaning of the so-called subsidiary clause of Sec. 1 para. 4a sentence 2 at the end, German Ordinance on Dietary Foods [Diätverordnung, DiätV]. The Federal Court of Justice [Bundesgerichtshof, BGH] affirmed this (docket No. I ZR 8/11 – prior instance: Higher Regional Court [Oberlandesgericht, OLG] Hamburg 3 U 14/09). Consequently, in cases where patients possibly cover their medically-determined nutrient requirements through food supplements, the distribution of a corresponding preparation as a supplementary balanced dietary foodstuff no longer comes into consideration. Please click here for the court decision [in German].

Oppenhoff Partner Dr. Thomas Utzerath represented and advised the claimant Opfermann Arzneimittel GmbH throughout the court instances. Federal Court lawyer Dr. Achim von Winterfeld was counsel before the Federal Court of Justice.

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