The ruling of the Federal Court of Justice (BGH) dated January 23, 2025 (Case No.: I ZR 197/22) concerns advertising statements regarding the skin compatibility of a disinfectant hand foam.
The case involves a competition law dispute between the German Centre for Combating Unfair Competition e.V. and a German subsidiary of a Swedish corporation, which, among other products, distributes disinfectant hand foam in Germany.
The defendant had advertised the disinfectant hand foam in question, which it sold, in a food magazine with the statements “Gentle on the skin,” “Skin-friendly product solution as foam,” and “Consumers are convinced – 100% confirm skin compatibility.” The advertised product, which is free from alcohol and fragrances, contains only lactic acid as the active ingredient in a concentration of 1.75 g/100 g.
According to the plaintiff – the Centre for Combating Unfair Competition – this advertising constitutes a violation of Regulation (EU) 528/2012 on the placing on the market and use of biocidal products (Biocide Regulation), and therefore, it has demanded an injunction against the defendant pursuant to Section 8 para. 1 Sentence 1 in conjunction with Sections 3 para. 1, 3a of the German Unfair Competition Act (UWG).
According to Article 72 para. 3 Sentence 2 Biocide Regulation, advertising for a biocidal product must not contain the terms “biocidal product with low-risk potential,” “non-toxic,” “harmless,” “natural,” “environmentally friendly,” “animal-friendly,” or any similar indication. Such advertising is misleading, as per Article 72 para. 3 Sentence 1 Biocide Regulation.
The plaintiff's claim was rejected both at first instance by the Regional Court of Mannheim (judgment of October 20, 2021, Case No.: 14 O 107/21) and on appeal by the Higher Regional Court of Karlsruhe (judgment of November 9, 2022, Case No.: 6 U 322/21). The Higher Regional Court of Karlsruhe ruled that although the hand disinfectant foam was a biocidal product under Article 3 para.1 lit. a Biocide Regulation, the defendant did not violate Article 72 para. 3 Sentence 2 Biocide Regulation with the contested advertising statements. The court found that the statements were not “similar indication” within the meaning of this provision and were not misleading within the meaning of Article 72 para. 3 Sentence 1 Biocide Regulation.
Following the plaintiff’s appeal, the BGH was required to address this issue. Contrary to the lower courts, the BGH ruled that the advertising statements “Gentle on the skin,” “Skin-friendly product solution as foam,” and “Consumers are convinced – 100% confirm skin compatibility” are indeed considered “similar indication” under the misleading advertising prohibition in Article 72 para. 3 Sentence 2 Biocide Regulation, and therefore overturned the judgment of the Higher Regional Court of Karlsruhe.
The BGH based its decision primarily on the judgment of the Court of Justice of the European Union (CJEU) of June 20, 2024 (Case No.: C-296/23). In that case, the CJEU – in a different matter – had answered the BGH’s reference question regarding the interpretation of the term “similar indication” in Article 72 para.3 Sentence 2 Biocide Regulation by stating that it encompasses any indication that presents the product in a misleading way, in the sense that risks are downplayed or even denied. The indication does not necessarily have to be of a general nature.
Based on this case law of the CJEU, the BGH classified the three contested statements as “similar indication” under the misleading advertising prohibition. It justified this decision primarily by stating that all three statements highlight a positive attribute of the advertised disinfectant without mentioning any associated risks. By emphasizing the positive attribute, the statements were deemed capable of downplaying the risks of the biocidal product. Furthermore, the emphasis on the positive attribute contradicted the objective pursued by the Biocide Regulation: minimizing the use of biocidal products. This could lead to excessive use of the disinfectant. In line with the CJEU's case law, which states that the indication's general or specific nature is irrelevant, it was deemed immaterial that the statements did not downplay the risk potential in a general sense, but rather specifically addressed the skin's perception and reaction.
Furthermore, the BGH points out that, although the Biocide Regulation generally differentiates based on the degree of danger of biocidal products, such differentiation is already excluded in the context of the misleading advertising prohibition by the clear wording of Article 72 para. 3 Sentence 2 Biocide Regulation. Therefore, the potentially lower risk of the product in question is irrelevant. Even products with less harmful effects can pose dangers to humans, animals, or the environment if handled improperly or excessively.
Finally, the BGH notes that Article 72 para. 3 Sentence 2 Biocide Regulation is based on an abstract risk of misleading advertising, and therefore, a concrete instance of misleading advertising in a specific case is not relevant. As such, the specific target audience of the advertisement is not of importance. The fact that the contested advertisement appeared in a food magazine, which particularly targets professionals in the food industry, is therefore irrelevant.
With this decision, the BGH consistently follows its ruling of October 10, 2024 (Case No.: I ZR 108/22). In that case, following the CJEU, the BGH had ruled that the statement “skin-friendly” in the advertising of a biocidal product constitutes a “similar indication” under the prohibition of Article 72 para. 3 Sentence 2 Biocide Regulation.
Co-Author: Farina Simon
