Co-Author: My Anh Cao
A decision by the Higher Regional Court of Karlsruhe from 9 November 2022 (Ref.: 6 U 322/21) deals with the advertising of a disinfectant hand foam with claims regarding skin compatibility.
The plaintiff is an association for combating unfair competition. The defendant sells various products. It advertised a disinfectant hand foam with the claims "Gentle on the skin", "Skin-friendly product solution as a foam" and "Consumers are convinced – 100% confirm skin compatibility". The plaintiff was of the opinion that the advertising was in breach of Article 69 para. 2 sentence 1 of the Biocidal Products Regulation and Article 72 para. 3 of the Biocidal Products Regulation. The defendant opposed this and argued that the disinfectant product did not give rise to any misconceptions about the risk potential among the target public, but referred to the effect of skin compatibility and was therefore true.
The Karlsruhe Higher Regional Court ruled on 9 November 2022 (Ref.: 6 U 322/21) that the Mannheim Regional Court had correctly dismissed the legal claim. The advertising claims in question were not prohibited as "similar references" pursuant to Article 69 para. 2 sentence 1 of the Biocidal Products Regulation and Article 72 para. 3 sentence 2 of the Biocidal Products Regulation. The regulations prohibit the presentation of biocidal products that are misleading with regard to the risks of the product for human and animal health or for the environment or its effectiveness. Statements about skin-friendly and skin-compatible properties do not fall under the prohibition of "similar indications" within the meaning of Art. 72 para. 3 sentence 2 of the Biocidal Products Regulation, as they concern a specific product effect on a specific human organ and do not trivialise the risk potential in a generalised manner with statements comparable to the indications expressly prohibited in the regulation. The statements at issue lack a similar degree of generalised trivialisation.
By stating "gentle on skin", the average consumer expects that the use of the hand sanitiser, in comparison to other sanitisers, is in some way and to an unspecified extent gentle on the skin of the hand, does not irritate it and has a gentle and pleasant effect. The consumer does not infer from the statement that the product has a positive effect on the health and well-being of the skin. From the point of view of the target public, the attribute "gentle on the skin", just like the claim "skin-friendly", does not generally exclude (also adverse) effects on skin health. The public would understand the claims to mean that the skin disinfectant takes into account the health or well-being of its skin. The public would relate the attributes specifically to the organ that comes into contact with the product when used as intended and not generally to the other effects on humans and the environment. Therefore, the claims are not similar to the terms listed in Article 73 para. 3 sentence 2 of the Biocidal Products Regulation and therefore are not misleading. These considerations would also apply to the claims "skin-friendly product solution as foam" and "consumers are convinced – 100% confirm skin compatibility".
This is important | To Do: The decision of the Karlsruhe Higher Regional Court is welcomed. If a disinfectant is particularly kind to the skin compared to other disinfectants, then this information is particularly important for consumers whose skin is regularly exposed to disinfectants (e.g. in the healthcare sector). The court also correctly assessed the understanding of the relevant average consumer, who will relate such advertising claims solely to the skin-friendly effect.
