Co-Autor: Tim-Jonas Löbeth
In its ruling of 11 July 2024, the Federal Court of Justice (BGH) set new standards for labelling requirements under the CLP Regulation (EC No. 1272/2008). Companies that place hazardous substances and mixtures on the market are currently faced with the challenge of carefully reviewing their labelling and redesigning it if necessary.
Background and decision of the BGH
The case centred on nicotine-containing liquids whose packaging boxes did not display the required labelling elements together – hazard pictogram, signal word, hazard statements and safety statements. While individual elements (e.g. pictogram and signal word) were placed next to each other, others (hazard and safety statements) were located on different sides of the packaging. The plaintiff, a competition association, objected to this as a violation of Article 32 (1) of the CLP Regulation and demanded an injunction under the UWG (Unfair Competition Act).
The Federal Court of Justice upheld the competition association’s claim and clarified that all of the aforementioned labelling elements must be directly visually connected on the label. It is not sufficient for them to be scattered randomly on the packaging. Instead, consumers must be able to see all safety instructions at a glance. In the court’s view, the requirements of the CLP Regulation are mandatory and not merely recommendations or “target provisions”. According to the Federal Court of Justice, the “easy readability” of the elements and their “connection” are central protection objectives of the Regulation.
Competition law context and legal basis
The ruling once again highlights the close link between the CLP requirements and the injunctive relief claims under competition law pursuant to the UWG. In light of Section 8 (1) sentence 1, Section 3 (1), Section 5a (1), (2) and Section 5b (4) UWG, a violation of the labelling requirements constitutes essential information that has not been brought to the consumer’s attention, both under the old and the new versions.
Specifically, if the labelling context is missing or if safety instructions are spread across different pages, this constitutes a misleading omission of essential information within the meaning of competition law provisions. This can trigger warnings and legal proceedings, as the lack of context can obscure or downplay the dangers and risks of a product for consumers.
The Senate further stated that exemptions to CLP labelling must be interpreted narrowly. Only if the product is distributed to a clearly definable, expert user group, exemptions would be considered. However, the fact that the liquids are sold exclusively to adults was not sufficient for the Senate to accept an exemption. The special tobacco regulations for liquids did not preclude the applicability of the CLP Regulation either. Instead, the Senate clarified that the requirements apply in addition to each other to fully consider the health protection of broad sections of the population. The same should also apply to other products that are subject to several legal acts.
Summary: What does this mean in practice?
The Federal Court of Justice ruling once again emphasises the central importance of CLP labelling for consumer health protection and highlights its enforceability under competition law. Companies that distribute hazardous substances and mixtures to the general public, regardless of their industry, must design their labelling in such a way that all hazard and safety information is “coherent” and visible at a glance. Violations can quickly lead to legal disputes with real financial and reputational risks.
Companies should therefore analyse their labels and packaging design promptly and, if necessary, adapt them to the stricter requirements. This includes reviewing existing stock as well as the design of future product launches. At the same time, comprehensive internal training on the new requirements for product management, design and sales is recommended to make processes future-proof.
