Germany: The Obligation Of Authorities To Publish Information On Food Law Violations Is Constitutional


More than 5 years ago, the incorporation of a new paragraph in Section 40 of the German Food and Feed Act (Lebensmittel- und Futtermittelgesetzbuch, "LFGB") caused one of the big outcries in German food law history:

The legislator added Paragraph 1a to Sec. 40 LFGB, which obliges competent national authorities to inform the public by stating the name of the food or feed, and the name of the food or feed business under whose name or company the food or feed has been manufactured or treated or has been put on the market in either cases of "reasonable grounds for suspecting" that food and feed companies exceed any statutory limit values or contravene with all other provisions within the LFGB's scope of application that aim for consumers' protection against health risks or misleading practices, or for compliance with hygienic standards and in which a fine of at least an amount of (only) €350 is therefore expected to be imposed.

Soon after the new provision entered into force, several German Federal States (Bundesländer) had already set up official websites for enabling the placement of information about infringements of food and feed law requirements for the general public. It was not long before the first entries were made into this new "public pillory". However, those entries predominantly related to smaller companies or culinary establishments. These were often hit out of the blue by the newly established provisions having failed to seek legal support in time to defend themselves against the publication respectively the objection as such and any possible fine associated with it.

While there is no uniform catalogue of fines available for food and feed law infringements in Germany, the imposition and fixing of a fine is within a legally defined framework at the sole discretion of the competent authority. Depending on the type of infringement an administrative offence may be punished by fines up to €20,000, €50,000 or even €100,000 (cf. Sec. 60(5) LFGB). You can take from these figures that it is rather the rule than the exemption to impose a higher fine than €350 on food and feed business operators in case of any infringement of the law. Apart from that it was already sufficient that such an amount was only "expected to be imposed" to trigger an entry in the public information register of the competent authorities. In contrast, all other value thresholds relevant for consequences arising out of an administrative offence (e.g. entry of the infringement in the commercial central register in case of a higher fine than €200) would require a legally binding fine notice.

The aspects that made the German food law scene stumble the most was that the publication of such infringements (1) did not even require an acute risk for consumers' health; and (2) were not subject to the discretion of the authorities but must be performed ex officio.

The questionable provision was, however, eventually only executed for a short period of time in the German Bundesländer. This is due to the fact that some German Higher Administrative Courts (Oberverwaltungsgerichte) as well as state governments have expressed doubts about whether Sec. 40(1a) LFGB is consistent with German constitutional law, especially with regard to the constitutional right of Occupational Freedom [Art. 12 of the German Constitution (Grundgesetz, "GG"]. The state government of Lower Saxony (Niedersachsen) even went one step further and filed an application for judicial review with the German Federal Constitutional Court in 2013. On 4 May 2018, the BVerfG finally published its decision on the case which is rather surprising for all critical voices.

Key points stressed by the BVerfG

The BVerfG declares that Sec. 40(1a) LFGB indeed interferes with Art. 12 GG (Right of Occupational Freedom). This is because the intended publications aim directly at the market conditions of individual businesses, influence consumer behaviour and thus change the market and competition situation of the business operator in question to its economic disadvantage.

This interference with Art. 12 GG can only be justified to a limited extend because Sec. 40(1a) LFGB does not fully comply with the requirements of the principle of proportionality: Although the provision in Sec. 40 (1a) LFGB pursues a legitimate goal (i.e. to enforce food and feed law effectively and to provide the consumer with a sufficient basis to form a self-dependent decision) and is suitable to meet this legitimate goal, the provision is not fully adequate/proportional.

This is due to the fact that the law does not provide any time restriction concerning the official publications; over time, the official publication becomes less and less proportional with regard to the legitimate goals of the provision. The longer such information is published, the bigger the discrepancy between the increasing strains on the business operator on the one hand, and the decreasing value of the information for the consumer on the other hand. The objective value of the disclosed information decreases the longer time has passed since the infringing act, becoming more and more difficult to draw conclusions to the current situation of the affected business operator. Thus, under constitutional law, it is necessary to adopt a provision including a time limit regarding publications.

Aside from this, Sec. 40(1a) LFGB is adequate/proportional as long as it is applied in a manner that ensures conformity with the German Constitution. This might be achieved by applying the provision in such a way that official publications are only made about "significant" infringements of the law. In addition, where infringements have already been rectified, the competent authorities must now immediately inform the public whether and when the infringement has been rectified in order to ensure the accuracy of the information and to avoid misconceptions on the part of consumers.

Practical consequences

According to the BVerfG, a time limit for publications according to Sec. 40(1a) LFGB must now be determined by the German Federal legislator. It is not sufficient to specify such a restriction via judicial decisions and/or administrative practice. Such a time limit shall be fixed by 30 April 2019 at the latest. Apart from the aforementioned, Sec. 40(1a) LFGB shall continue to apply in a manner that conforms with the constitution until such time limits are set.

This decision has a far-reaching impact on both food and feed business operators doing business in Germany as well as competent national authorities. From now on, Sec. 40(1a) LFGB "suddenly" has to be taken seriously again since the BVerfG explicitly addresses its validity. Therefore, affected businesses will be confronted with publicly available information on respective food and feed law infringements in the very near future - which might be severely harmful for their reputation and business activities. Also, authorities publishing information according to Sec. 40(1a) LFGB will most likely be faced with legal proceeding again in the future, e.g. if a business operator argues its infringement is not "severe" enough to justify such a publication. Obviously, the struggle has not been settled by the BVerfG - the show will go on!

The judgement is also highly interesting for non-German food or feed business operators if they market their products within Germany. The mere fact that they place their products on the German market is, of course, sufficient ground for German authorities to control and assess whether a product complies with the statutory limit values and other relevant food and feed law. If an infringement is detected, a non-German business might soon enough find its product name amongst the publicly available list. Therefore, especially under aspects of saving one's good reputation, it is more important than ever to fully comply with German food and feed laws and, of course, obtain legal advice in good time in case of receiving objections.

The English version of the official Press Release by the BVerfG can be found here.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
7 Nov 2019, Seminar, Birmingham, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

14 Nov 2019, Seminar, London, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions