Beauty and the Health Claims-Beast – a Legal Face Lift for Beauty Marketing

The case involved collagen drinking ampoules. As a drink, the product is considered a food and therefore falls under the scope of the HCR. The BGH reviewed six specific statements from the defendant’s website describing and advertising the product and assessed each of the statements individually which led to deviating results for the specific claims.

Key holdings:

• As always, context is decisive, i.e. whether a statement is a health claim depends on how a normal, informed and reasonably observant consumer understands that statement in its specific advertising context.
• No automatic carve-out: while the (non-binding) EFSA opinion states that claims about skin structure or elasticity do not necessarily relate to physiological functions, such claims are not automatically outside art. 10 para. 1 HCR. They require a case-by-case assessment.
• No ‘beauty free pass’: if a statement is understood as health‑related by the relevant public, it is a health claim even if phrased as a beauty claim.

Regulatory Framework

The HCR applies to nutrition and health claims in commercial food labelling, presentation and advertising. A health claim is one that states, suggests or even indirectly implies that there is a connection between a food category, a food or one of its constituents on the one hand and human health on the other. Health claims are prohibited unless they meet the Regulation’s general and specific requirements, have been scientifically assessed by the European Food Safety Authority (“EFSA”), authorised by the European Commission, and included in the EU Register of authorised nutrition and health claims.

Context is key

In the judgment, all six statements were considered “claims” in the sense of Art. 2 para. 2 no. 1 HCR because they were not limited to obligatory information under community or national law such as an ingredient list. The statements linked the ingredients to the slogan “beauty from within” implying the “unique composition of ingredients” to be the root of this. By this, they did not merely list (obligatory) ingredients but went beyond that.

Two statements purely describing skin structure were even interpreted as referential to the product in context with the heading “sustainable beauty through positive collagen balance”. Therefore, descriptive elements cannot be separated from their advertising frame.

What stayed safe and what crossed the line

Three statements were upheld because they focused on appearance and product composition. They claimed “beauty from within” based on a unique collagen complex plus skin-relevant nutrients, lasting efficacy and product uniqueness regarding “beauty effects”, allegedly backed by placebo-controlled blind studies and that lasting beauty results from a positive collagen balance in the dermis which (rich in collagen and hyaluronan) governs skin appearance, firmness and elasticity. According to the court, these statements did not constitute health claims and therefore fell out of the scope of the HCR.

The court ordered an injunction regarding the following three claims, as average consumers would read them as health‑linked (translations and underlining by the authors):

1. “[…] 80% of young, healthy skin consists of collagen.”
2. “[…] Peptides […] stand available to the normal collagen metabolism in deep skin layers. Studies proved the bioavailability and the transport of collagen-peptides […]”
3. “[…] Clinical trials show improvements in moisture, elasticity, roughness, and density.”

According to the court, “healthy skin” inherently invokes a health reference. The second statement was – in the context of the heading – to be understood as health referential, even more when seen in combination with a statement about bioavailability. The last statement referencing moisture, elasticity, roughness and density is to be understood regarding the skin’s health by medical laypersons. This is interesting in comparison to one of the statements that stayed safe (“through positive collagen balance to lasting beauty […] collagen is part of […] which is crucial for appearance, tone and elasticity”) which was considered to focus on appearance instead of health. While EFSA does not view statements about structure and elasticity of the skin as necessarily health-referential, the court held that the EFSA guidelines are not binding and that the consumer’s understanding is essential and to be determined individually. These claims were prohibited because they are not included in the list of authorised health claims.

Why context matters

The defendant’s website opened with “how important collagen is for our body and skin structures.” According to the court, that set a health-related frame. Within that frame, the first three statements stayed cosmetic, the others clearly slipped into the health-context. Nevertheless, the BGH did not (like the second instance) construct an “argumentative chain” that let the health-related frame consume all statements. The court assessed each sentence individually but always with the local headings and nearby text in view.

Skin structure, elasticity and bioavailability

The BGH contradicted the former instance and other earlier lower-instance judgments in different cases by stating that there is no reason to exclude statements about skin structure and elasticity from the scope of art. 10 HCR. Regarding claims about the bioavailability of certain nutrients, the court ruled that they are not a health claims per se. Yet, they become health claims if connected to a statement about a physiological function (“normal collagen metabolism,” “barrier function”) or to health outcomes.

Beauty Claims

Finally, the court clarified that “beauty claims” can be health claims. The BGH emphasised that it is of utmost relevance how the average consumer understands the statement. If the consumer sees a health-reference in a “beauty claim”, such claim ultimately needs to be treated as a health-claim.

Bottom line

This judgment is a reminder to write advertising texts with a clear cosmetic focus, to separate health-related concepts from purely aesthetic benefits and to only refer to health-related claims as far as they comply with HCR. Keep the following points in mind:

• The term “health claim” is to be understood in a broad way: if an average consumer sees a link to health or body functions, the statement constitutes a health claim.
• The setting and context of marketing statements matter – in a legal review, a court will take into account headings, adjacent text and the website’s opening frame. Therefore, non-health-related claims should not be made in immediate vicinity to claims about health benefits, especially if they refer to similar processes. Otherwise, such health frame might “consume” them and render them health claims, too. Similarly, surrounding disclaimers or beauty language will not ‘rescue’ a sentence that leans into health or body functions.
• Statements that constitute health claims need to meet the HCR’s requirements: check whether the specific health claim is part of the list of authorised claims, otherwise request the claim to be assessed by EFSA or leave it out of the ad.
• Avoid phrases such as “young and healthy skin,” “clinically proven to improve skin elasticity,” or “improves skin density,” when the scientific evidence about the causal connection between the foodstuff and the specific body function has not yet been assessed or even been denied by EFSA.
• Strictly appearance-related language such as “helps skin look more supple” and nutrient-related claims supported by the product’s formulation in non-advertising language are generally less risky (“healthy-looking” / “smoother-looking” skin vs. “healthy” skin).