In its judgment of 20 June 2024 (Ref.: C-296/23), the European Court of Justice (ECJ) dealt with a question referred by the Federal Court of Justice (BGH) concerning the interpretation of the term ‘similar indications’ within the meaning of Article 72 para. 3 sentence 2 of Regulation (EU) 528/2012 concerning the making available on the market and use of biocidal products (Biocidal Products Regulation).
Article 72 of the Biocidal Products Regulation governs the advertising of biocidal products at the Union level, with paragraph 3 stipulating a prohibition on misleading statements, which reads as follows:
“Advertisements for biocidal products shall not refer to the product in a manner which is misleading in respect of the risks from the product to human health, animal health or the environment or its efficacy. In any case, the advertising of a biocidal product shall not mention ‘low-risk biocidal product’, ‘non-toxic’, ‘harmless’, ‘natural’, ‘environmentally friendly’, ‘animal friendly’ or any similar indication.”
The background to the request for a preliminary ruling is a competition law dispute between the Centre for Protection against Unfair Competition (Wettbewerbszentrale) and a drugstore chain. The latter offered for sale the disinfectant ‘BioLYTHE’, which included the information ‘Skin-friendly - Organic - Alcohol-free’ on its product label. The Wettbewerbszentrale had pursued this under competition law with the aim of, among other things, prohibiting the drugstore chain from describing the disinfectant as ‘skin-friendly’. The BGH, which was seized with the question of the admissibility of this advertising claim after an appeal, suspended the proceedings by order of 20 April 2023 and referred the question to the ECJ for a preliminary ruling as to whether, under ‘similar indications’ within the meaning of the prohibition of misleading statements pursuant to Art. 72 para. 3 sentence 2 of the Biocidal Products Regulation only those advertising claims that, just like the information expressly mentioned in the regulation, play down the risks of the biocidal product in a generalised way, or whether it also covers information with a comparably trivialising, but not necessarily generalising content.
The ECJ answered this question to the effect that the term ‘similar references’ covers any reference in advertising for biocidal products that presents them in a way that is misleading in that it plays down or even A general character of the reference is not necessarily required. He justified this by stating that no such restrictive reference can be derived from the regulation itself. Thus, both a general and a specific advertising reference that plays down the risks of biocidal products could be misleading with regard to the existence of these risks.
The ECJ therefore ruled that the claim ‘skin-friendly’ was misleading because it was likely to downplay the harmful side effects of the product. Due to the positive connotation that the ECJ ascribes to the term, the claim even avoids mentioning any risks and also suggests a possible positive effect of the product on the skin. The average consumer is thus given the impression that the product may even be beneficial for the skin, which is why the ban on the term in advertising is justified on the grounds that it is misleading in accordance with Article 72 para. 3 sentence 2 of the Biocidal Products Regulation.
The ECJ ruling clarifies the interpretation of the term ‘similar indications’ within the meaning of Art. 72 para. 3 sentence 2 of the Biocidal Products Regulation. It covers both general and specific advertising claims for biocidal products that are misleading. The BGH must now decide the pending case taking into account the ECJ ruling.
Co-author: Farina Simon
