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Misleading advertising - Free from harmful substances does not mean compliance with limits

posted 5 years ago

Advertising featuring the term “schadstofffrei”, i.e. free from harmful substances, is misleading if the product, despite not exceeding acceptable limits, has some concentration of harmful substances.
Misleading advertising violates competition law. We at the commercial law firm GRP Rainer Rechtsanwälte note that actions are misleading if they give rise to misconceptions among a substantial proportion of the relevant public, e.g. regarding certain characteristics of a product.
One example of this is when a product is promoted as being “schadstofffrei”, even though it does in fact have some concentration of harmful substances and merely complies with legal limits or requirements set out by private institutions. Consumers have been said to understand the term “schadstofffrei” as it appears in advertising to mean that the goods advertised do not contain any trace of harmful substances, which is to say they cannot contain any substance that might even only in theory be liable to harm consumers. That was the verdict of the Oberlandesgericht (OLG) Stuttgart, the Higher Regional Court of Stuttgart, in a judgment from October 25, 2018 (Az.: 2 U 34/18). According to the ruling, advertising something as being free from harmful substances is also misleading if it gives the impression that there has been comprehensive testing for harmful substances, even though the product has not in fact been tested for the presence of certain harmful substances.
In the instant case, the vendor had promoted a mattress as being “schadstofffrei”, despite it containing small amounts of antimony. Yet consumers were said to expect from the advertising a product that is completely free from harmful substances. The OLG Stuttgart held that it is irrelevant whether the concentration of harmful substances present is considered by industry experts to be negligible. It stated that consumers are not obliged to follow the risk assessment of specialist experts; the former arrive at their market choices independently and are the only ones entitled to set standards when it comes to their decisions. The prohibition on misleading claims, descriptions and statements is meant to safeguard them from making consumer choices on the basis of misconceptions. The Court went on to note that consumers have in recent years moved towards adopting a more critical stance vis-à-vis limit values, especially in relation to harmful substances, and are therefore looking to quality standards above and beyond sound science. Accordingly, the OLG Stuttgart concluded that free from harmful substances is not to be equated with compliance with limits.
Misleading advertising violates competition law and can therefore lead to formal warnings or injunctions suits. Lawyers with experience in the field of competition law can offer advice.



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