Protein Claims on Food Products: BGH Referral to the CJEU and Its Significance for the Internal Market
The use of protein-related statements on food packaging has for several years been among the most sensitive issues in labelling practice. What may, at first glance, appear to be a purely design-related question in fact concerns, in a central way, the interaction between the Food Information to Consumers Regulation (FIC Regulation) and the Health Claims Regulation (HCR).
By order dated 20 November 2025, the Federal Court of Justice (Bundesgerichtshof, BGH) referred this issue to the Court of Justice of the European Union (CJEU) for clarification (Case I ZR 2/25; pending before the CJEU as Case C-758/25). The referral concerns a constellation that is widespread in practice: a permissible claim such as “High Protein” is supplemented by additional statements, for example specific gram values.
This raises, for the first time at European level, the question whether such statements may be classified as a permissible specification of an authorised claim, or whether the system established by the FIC Regulation imposes a clear limit in this respect.
The Current Position: A Clear Line, but Limited Scope for Flexibility
From a German perspective, the starting point is comparatively clear. Article 30(3) of the FIC Regulation is understood in the case law as an exhaustive provision. Accordingly, only certain nutritional information may be repeated outside the mandatory nutrition declaration. Protein does not fall within those items. Isolated references to protein content outside the table are therefore generally regarded as impermissible where they are presented with particular emphasis.
That approach was recently confirmed, for example, by the Higher Regional Court of Stuttgart (judgment of 30 January 2025 – 2 U 145/23). The court made clear that a separately highlighted protein quantity—such as an amount stated per cup—is not covered by Article 30(3) of the FIC Regulation and may therefore infringe the food-labelling regime.
For practice, it is crucial that the assessment turns less on the substantive accuracy of the statement than on the context in which it is presented. The FIC Regulation is intended to ensure that nutritional information is communicated in a consistent and comparable framework. The selective highlighting of individual values fits within that system only to a limited extent.
The Open Question: Permissible Specification or Impermissible Supplement?
It is precisely at this point that the BGH referral intervenes. The Court is asked to clarify whether, under EU law, a permissible claim may be specified by additional statements, even though those statements are not expressly provided for in the relevant annexes to the Health Claims Regulation.
For practitioners, this is not a merely theoretical issue. Many labelling concepts are built precisely on the combination of a claim and explanatory additional information, intended to render an abstract claim more tangible for consumers.
German case law to date has tended to regard this as an impermissible extension. The BGH, however, considers the classification under EU law to require clarification and has therefore chosen to make a reference for a preliminary ruling.
Implications for Businesses in the Internal Market
The CJEU’s decision will not be confined to Germany. It will shape the application of the relevant provisions in all Member States and thus have a direct impact on the design of Europe-wide labelling strategies.
At present, the situation remains inconsistent for many businesses. While the legal framework is harmonised, enforcement practice is not yet fully aligned. In Germany, the issue is treated comparatively strictly, whereas in other markets greater restraint in enforcement may, in some cases, be observed.
This creates a tension for manufacturers and distributors active across several jurisdictions. On the one hand, there is a legitimate interest in a uniform product presentation. On the other hand, that presentation may be assessed differently depending on the market concerned.
In such constellations, the key question is often less whether a particular design can be defended in principle, and more whether it is robust across all relevant markets. The BGH referral therefore concerns not only the permissibility of individual statements, but also the ability to organise labelling consistently within the internal market.
Typical Practical Issues
In advisory practice, it is apparent that many businesses are currently grappling with the same issues. A central concern is often the assessment of existing packaging. Highlighted protein statements outside the nutrition declaration are vulnerable under current German case law, even where they are factually correct.
The same applies to the combination of “High Protein” with specific quantity statements. Whether such a presentation may be lawful will depend directly on the forthcoming CJEU ruling.
Another recurring issue concerns percentage statements or other relational indications. These are particularly problematic where it is unclear what they refer to. For the assessment of protein claims, the proportion of the overall energy value is decisive. Divergent presentations may be misleading and may create additional legal risk.
Finally, businesses operating across multiple sales markets face the question of a uniform strategy. Until clarification is provided under EU law, this will generally require a differentiated assessment that takes account of the relevant national enforcement practice.
Assessment and Outlook
The BGH referral marks an important step towards a more precise delineation between permissible consumer information and impermissible promotional emphasis. It concerns an area in which practical product design and the regulatory framework are particularly closely intertwined.
In the short term, the situation remains characterised by a degree of restraint. The existing case law sets a narrow framework to which businesses must continue to orient themselves.
In the longer term, the CJEU’s decision offers the opportunity to define this interface more clearly. That may result either in a confirmation of the existing line or in a more differentiated approach. In either event, it should enhance legal certainty within the internal market.
Advice in the European Context
Current developments demonstrate that questions of food labelling can no longer be addressed in a purely national context. They require an assessment in light of European law and its practical application.
We advise manufacturers, distributors and brand owners on the review of existing labelling and on the development of robust concepts for the European market. The objective is to develop solutions that comply with current legal requirements while also appropriately anticipating future developments.