Manufacturers often cheat with packaging that simulates more content than is actually inside – even though this is prohibited. The Federal Court of Justice has now clarified the dispute over deceptive packaging.
Packaging that pretends to contain more than it actually does is always a cause of dissatisfaction among consumers. The Federal Court of Justice (BGH) has now backed them in the dispute over so-called deceptive packaging.
A product package that is only about two-thirds full is an illegal deceptive package – regardless of whether it is on the store shelf or sold online, the court in Karlsruhe ruled. Packaging that is not proportionate to its actual filling quantity deceives consumers regardless of the distribution channel, said the presiding judge, Thomas Koch.
In this specific case, the cosmetics and personal care manufacturer L’Oréal had advertised a men’s wash gel on its website with a picture of the plastic tube standing on its lid, which was only filled with wash gel up to the end of a transparent part of the tube. The Baden-Württemberg Consumer Center criticized the advertising, saying it suggested that the tube was almost completely full and was therefore unfair.
In order to protect consumers from deceptive packaging, German law imposes strict rules on manufacturers. The Measurement and Calibration Act states that packaging that simulates more content than it actually contains may neither be manufactured nor placed on the market. In case law, the limit was regularly set at a filling quantity of around two thirds – if the content was less, it was generally assumed that the packaging was deceptive.
BGH annuls rulings of lower courts
The consumer center’s lawsuit was initially unsuccessful in the lower courts. The Higher Regional Court (OLG) in Düsseldorf found that the packaging was only about two-thirds full and would therefore be a deceptive package if it were on the store shelf. In this case, however, the violation was not noticeable to consumers, as they could not see the exact size of the packaging when buying online anyway.
The BGH understood the reasoning of the appeal court to mean that consumers cannot see how big or small a package is online anyway and therefore rely on the milliliter information. Since this information was correct, the OLG believes that there could be no deception, Koch explained at the oral hearing in April – but already indicated there that the Karlsruhe Senate did not share this assessment. It should actually make no difference where the tube is shown, said Koch.
The ruling of the highest German civil court was accordingly. The Federal Court of Justice overturned the decisions of the lower courts and ordered L’Oréal to cease and desist. When asked, L’Oréal said that it respected the Federal Court of Justice’s decision and was waiting for the ruling, including the reasons for the ruling, to be delivered. “The consumer center has complained about packaging that it took from stores more than four years ago,” said a company spokesperson. “We have not sold this packaging in this form for more than two years.”
Packaging rules also at EU level
With this ruling, the Karlsruhe Senate has strengthened consumers, said Cornelia Tausch, head of the Baden-Württemberg Consumer Center, after the announcement. “This should send a signal to all manufacturers to use packaging sparingly.” It is hoped that the position of consumers will also be strengthened by the new EU packaging regulations.
The new rules passed by the EU Parliament at the end of April stipulate, among other things, that manufacturers must minimize the weight and volume of packaging. The aim is to gradually reduce packaging waste in the EU by at least 15 percent by 2040 compared to 2018. After the vote in the plenary session of the European Parliament, all that remains is for the EU states to confirm the new regulations. This is usually a formality.
Source: Stern
