It's a lolly, not the Black Death - court tosses out liquorice claim

In good news for food manufacturers, courts internationally are continuing to toss out claims against manufacturers where the damage is allegedly caused by over-consumption, as the latest German case shows.

Margit Kieske was overweight and on medication for high blood pressure when she developed a serious liquorice habit. Every day for four months she ate a 400g bag of Haribo's Matador Mix assorted liquorices, even after she began suffering from chest pains and felt unwell. To her credit, she did see a doctor who prescribed a blood pressure medication and referred her to a cardiologist. Unfortunately she did not see the cardiologist in time. Her black lolly binge only ended when she was rushed to hospital with an irregular heart rhythm. She was diagnosed with hypokalemia, which is low potassium levels in the blood. This can lead to high blood pressure, irregular heart rhythms, and death.

Liquorice contains glycyrrhizic acid which in high amounts can affect potassium levels. This is recognised in the medical literature. Once she'd recovered her health, Ms Kieske sued Haribo for negligence and under German product liability laws (which are based on the same European Union Product Liability Directive as our own Part VA of the Trade Practices Act) for Haribo's failure to warn her of the presence of glycyrrhizic acid in its liquorice and its effects, especially since the dangers of glycyrrhizic acid are not generally known. She also sued Haribo for selling king-size packets, which she said induced over-consumption.

Her claim faced a number of difficulties - including that her blood pressure medication could also cause low potassium levels. The manufacturer denied causation and relied on a guideline from the German Ministry of Health in 1991 that the presence of glycyrrhizic acid in a food product in the levels found in liquorice did not have to be declared.

In tossing out her claim, the Regional Court of Bonn said that even if the liquorice had been the sole cause of her hospitalization (and that wasn't proven) she could not succeed as her claim was based on her own, rather amazing, over-consumption. Indeed, the court went so far as to describe it as "liquorice abuse". It held

• the liquorice was not defective because it contained glycyrrhizic acid;
• manufacturers must warn of their products' risks only where they can reasonably expect the risk will arise from the normal use of the products;
• 400g of liquorice a day for four months is just not normal.

Manufacturers in Germany must list glycyrrhizic acid on food labels but only when its concentration in the liquorice is over 0.2 per cent, but as Haribo's product has a smaller concentration it was not obliged to.

Finally, the court felt that Haribo's decision to offer king-size packets was a normal and reasonable one. The court said that it was clear that a 400g bag was a family or pantry pack intended for more than one person. Further, Ms Kieske did not show that her consumption would have been any less if there were smaller packets. Even if the liquorice was packaged in 50g or 100g, there was no guarantee that she still would not have consumed multiple bags of liquorice daily.

When too much really is too much

Australia is yet to see these types of cases, but based on overseas experience, it seems unlikely that over-consumption cases would succeed here, particularly as courts and parliaments have been increasingly stressing personal autonomy as an important element in negligence law.

We've already looked at some previous overseas cases in which plaintiffs have sued for damages for their excessive consumption of foods high in sugar and fat. The German courts in particular have consistently rejected a number of claims involving over-consumption of chocolate, sugar, beer, cola and now liquorice.

What makes this decision particularly interesting is that it was based on the presence of an ingredient that the public generally has never heard of, let alone knows about. Even so, the court (using laws very similar to Australia's) has said that there was no failure to warn of the effects of something which in normal servings causes no harm. The court, like so many others, has emphasised the difference between normal and excessive use, and the consumer's control over his or her own diet, whether it's a balanced one or not.

Show me the decision

For German speakers, the decision is online a thttp://www.justiz.nrw.de/(Landgericht Bonn, 9 0 603/03 19.4.04).