## Facts

- A confectionery manufacturer produced seasonal figures (e.g., Easter bunnies and Santa Claus) made of puffed rice bound together and coated with a thin layer of chocolate.
- The products were not “pure” chocolate under compositional rules governing cocoa and chocolate products, but their appearance could lead consumers to mistake them for regulated chocolate figures.
- A regulation prohibited marketing any food whose sensually perceptible characteristics (including appearance, smell, or taste) made it confusable with specified cocoa/chocolate products, imposing a total market ban rather than permitting sale with labeling.
- An association dedicated to combating unfair competition sued for injunctive relief, arguing the products were confusable with listed chocolate figures and therefore could not be sold.
- Civil courts, including the Federal Court of Justice, granted injunctions that effectively barred the manufacturer from marketing the products.
- The manufacturer filed a constitutional complaint alleging that the regulation and the judgments applying it violated the constitutional freedom of occupation.

## Issues

1. Whether an absolute prohibition on marketing foodstuffs confusable with listed cocoa/chocolate products violates constitutional freedom of occupation when consumer-protection aims could be met through less restrictive means.
2. Whether judgments enforcing injunctions under that prohibition violate the manufacturer’s freedom of occupation.

## Decision

- The court held the regulation unconstitutional and void to the extent it imposed an absolute marketing ban on confusable foodstuffs.
- The court set aside the Federal Court of Justice judgments that enforced the ban and remitted the cases for further proceedings.
- The court ordered the government to reimburse the complainant’s necessary expenses.

## Legal Principles

- Restrictions regulating the manner of practicing an occupation are permissible only if justified by reasonable public-interest grounds and proportionate (suitable, necessary, and reasonable in relation to the burden imposed).
- Consumer protection against confusion, deception, and health risks is a legitimate public interest that can justify occupational regulations.
- A total exclusion of products from the market is a severe interference and is unconstitutional where clear labeling or other less restrictive measures can adequately protect consumers.
- Constitution-conforming interpretation is unavailable when a provision’s text and structure clearly establish an absolute ban and provide no textual basis for a narrower, rights-compliant construction.
- Judgments that rely on an unconstitutional norm violate the affected fundamental right and must be vacated.

## Conclusion

The court invalidated a categorical food-law marketing prohibition as disproportionate under occupational freedom, holding that consumer-protection objectives generally must be pursued through less restrictive tools such as labeling when they can achieve comparable protection without excluding products from the market.


Schokoladenosterhase (Chocolate Candy Case), 53 BVerfGE 135 (Ger. Fed. Const. Ct. 1980)