Today I have to address a topic that is currently more than just bothering me, causing me more than just sleepless nights.
Last week I received a cease and desist letter from the Chocolate Wonderland, containing a cease and desist fee and a cease and desist declaration that I am supposed to sign by January 2nd.
The club, with its managing director Ferdinand Selonke, accuses me of the following violations:
They advertise the food product “Dark Chocolate Talers – without sugar 55% (Dammenberg)” on the Internet under the subdomain https://schoko-wunderland.de/produkt/dunkle-schokoladentaler-ohne-zucker-55-dammenberg/ (accessed and printed on December 11, 2023, between 3:38 p.m. and 3:46 p.m.) .
What is objectionable about this advertisement is that you advertise the product with the statements "sugar-free" and "without sugar" in the product name and description. This information constitutes misleading information pursuant to Art. 7 I, IV of the Food and Drug Administration Regulation (LMIV), as the advertised product actually contains sugar or fructose. Furthermore, this advertising statement also violates Art. 8 I of the Food and Drug Administration Regulation (HCVO) in conjunction with the annex "Nutritional Information and Conditions of Use," which states:
“A claim that a food is sugar-free, and any claim likely to have the same meaning for the consumer, may only be made where the product does not contain more than 0.5 g of sugar per 100 g or 100 ml.”
For the product, enter the following value in the nutritional table: Carbohydrates: 47.4 g/100 g – of which sugars: 5 g/100 g
Unfortunately, the association, led by managing director Mr. Selonke, failed to come up with the simplest explanation: that the variety is sugar-free and only the information in the nutritional table is incorrect. Therefore, the sugar-free claim is correct!
As a second offense, the club accuses me of:
They also advertise on the Internet under the subdomain https://schoko-wunderland.de/produkt/bio-zartbitter-worry-free-erdbeere-79-dammenberg/
(accessed and printed on December 11, 2023, between 3:56 p.m. and 4:00 p.m.) for the food product "Organic Dark Chocolate – Worry-Free Strawberry 79% (Dammenberg)." You advertise this product with the "organic" label.
However, at no point is the inspection body responsible for the product clearly indicated with its assigned identification number in connection with the use of the term "organic." According to Article 32 (1) (a) in conjunction with Article 30 (1) of the EU Organic Regulation 2018/848, when advertising a product with claims referring to organic production, such as "organic" or "eco," the code number of the inspection authority/body responsible for inspecting the company is mandatory.
The aforementioned provisions are also intended to regulate market conduct in the interest of market participants, so that their violation is simultaneously unfair within the meaning of Section 3a of the Unfair Competition Act (UWG) and must therefore be avoided in accordance with Section 8 of the UWG.
This constitutes anti-competitive behavior.
We request that you submit a legally binding cease-and-desist declaration to the association by January 2, 2024, using the attached form.
So let me summarize:
- My first offense was a typo in the nutritional information , writing 5g sugar instead of 0g . A mistake that put me at a competitive disadvantage .
- My second offense is that I forgot to include the text: Organic Control Body: FI-EKO-201 for an organic chocolate from Dammenberg (which is indeed organic). The association, where Mr. Selonke is the managing director, was able to clearly see from the product photo that the variety is organic.
Everyone should form their own opinion on this matter. I welcome any feedback and encouraging words directly to me ( kim@schoko-wunderland.de) . Because now I'm faced with high legal fees, have to pay the cease-and-desist fee, and take the matter to court.
What kind of world do we live in where a club punishes a man so harshly for making a typo?! I just want to make the world a little better for children (and adults) with multiple allergies!
And then to be punished so harshly by a man who puts law before right!