Court:

District Court of Bonn, Decision of 19 April 2004, 9 O 603/03

Topics:

Warning defect

Design defect

Assumption of risk

Liability for food products

Facts:

Between November 2002 and February 2003, the claimant, a 49-year old overweight woman, ate one 400gr pack of liquorice mix a day ("Matador-Mix") produced by "Haribo", a leading German candy manufacturer. On 22 February 2003 the claimant had a breakdown and was diagnosed with a heart rhythm disorder. She stayed in hospital for three weeks and subsequently underwent a three-week rehabilitation treatment.

The claimant alleged that the heart rhythm disorder was caused by her consumption of the defendant's liquorice. The risks of glycyrrhizin, a high blood pressure releasing substance contained in liquorice, had been known to experts for some time, the claimant argued. The defendant should therefore have warned of the risks of excessive consumption of liquorice and should have stated the presence of glycyrrhizin on the package. Moreover, the claimant argued, the defendant's offering liquorice in big packs of 400gr encouraged excessive consumption of liquorice.

The defendant denied any causal link between the consumption of its liquorice and the heart condition. The claimant had already suffered from high blood pressure before her breakdown, and the condition could also have been caused by a drug called "Ena-Puren" which the claimant had been using for some time. The defendant further disputed that its liquorice was defective even if the heart condition had indeed been caused by the claimant's consumption of liquorice.

Legal Questions:

Contributoy negligence

Decision:

The District Court of Bonn dismissed the claim, both on the basis of the German Product Liability Act and negligence. The Court said it was irrelevant whether the consumption of liquorice caused the heart rhythm disorder.

No defect

Even if there was a causal link this would not mean that the liquorice is defective. The presentation of the product was, in the view of the Court, accurate. There had been no obligation to indicate the presence of glycyrrhizin on the label because the concentration of glycyrrhizin was below the level for which German food law and the recommendations of the Ministry of Health require labelling.

The Court went on to state that the manufacturer also had the general obligation to warn consumers - over and above statutory labelling requirements - of product risks "where this was necessary for clear and sufficient information". Such a necessity did not exist where the public was aware of the risks inherent in a product. Manufacturers therefore did not have to warn consumers of risks which can result from excessive consumption of food as those risks were generally known and accepted by the public. It did not matter, the Court held, that the public was unaware of the precise risks of glycyrrhizin. It was sufficient that the public was aware of the fact that excessive consumption of sweets can generally pose a health risk.

The fact that Haribo offered the liquorice in 400gr packs did also not, in the opinion of the Court, constitute a (design) defect. Offering smaller packs of the liquorice mix would not have guaranteed less consumption. It was normal that sweets are sold in such big packs and manufacturers needed not anticipate that consumers would eat such big packs in one day.

Contributory negligence

Even if one would have to assume a product defect, there would be no liability, the Court said. For the claimant's conduct constituted contributory negligence to such an extent that the defendant could not be held responsible for the injury at all.

Comments:

The case confirms the general line of German courts (so far) that consumers are themselves responsible for excessive consumption of unhealthy food, drink or tobacco products. They know and accept, so the argument, the risks of an unhealthy diet. Already in 2001 the Hamm Court of Appeal[1] held that a brewery had no obligation to warn the consumers of the dangers of excessive consumption of alcohol. The Frankfurt Court of Appeal[2] and the District Court of Bielefeld[3] both dismissed tobacco claims on the basis that the cigarettes only contained substances that the relevant legislation permits and that the public is aware of the risks of smoking. And in 2003 the Düsseldorf Court of Appeal[4] rejected a claim against Mars in which the claimant alleged that his diabetes was caused by the consumption of chocolate. Food manufacturers, according to the argument in this case, were not bound to maximise the health benefit of their products.

There may be two ways for claimants to argue for liability in cases of 'unhealthy' food and drink products. One way would be to prove that such food and drink products contain ingredients that are known to be harmful and that should not, by law, be in those products. Another, more viable, way would be to prove that - apart from the question of statutory compliance - there is a reasonable alternative design for the product in question. In the present case, that is, liquorice need not contain glycyrrhizin because it would have exactly the same qualities when a different, safer substance was used.

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[1] OLG Hamm, 14. February 2001

[2]OLG Frankfurt, 1. February 2001

[3] LG Bielefeld, 25. January 2000

[4] OLG Düsseldorf, 20 December 2002