SK&S attorneys win case involving use of health claims in food advertisements

On 10 October 2018 the Court of Appeal in Warsaw ruled in favor of Bunge Polska Sp. z o.o. and dismissed most of the appeal of Unilever Polska sp. z o.o. against a judgment stating that Unilever committed an act of unfair competition in its advertising of Flora pro.activ margarine.

The disputed advertisement harmed the business interests of Bunge, a producer of the competitive margarine, Optima Cardio. Both margarines belong to the segment of functional food. The plant sterols contained in them help reduce blood cholesterol. In accordance with the provisions regulating the possibility of using health claims in the case of, amongst others, margarines which ensure a daily consumption of 1.5–2.4 g of plant sterols (parameters which are met by Flora pro.activ and Optima Cardio), it was permissible to inform the consumer about a scale of cholesterol reduction amounting to “7–10%” over 2-3 weeks.

However, in the advertisements for Flora pro.activ Unilever used messages suggesting that the product Flora pro.activ ensures a scale of cholesterol reduction greater than that permitted under EU regulations. As a result of the action brought by Bunge Polska Sp. z o.o. the Regional Court in Warsaw banned Unilever Polska sp. z o.o. from using this message and ordered it to publish statements informing consumers that the messages that it used were not in compliance with the law. The Courts of I and II instance agreed with the classification of the Flora pro.activ advertisement as an act of unfair competition. As a result of the advertisement Unilever Polska gained an unfair competitive advantage over producers which used messages which were in compliance with the law. For the duration of the proceedings an injunction was in operation which stopped Unilever Polska sp. z o.o. from broadcasting the disputed advertisement.

Bunge Polska sp. z o.o. was represented by legal counsel: Ewa Skrzydło-Tefelska, partner, Jacek Myszko, senior counsel, and Maciej Zwoliński, senior counsel; the team also included Mateusz Żuk, associate.

Judgment of the Court of Appeal in Warsaw, 10 October 2018, VII AGa 1166/18