Misleading Product Descriptions: New OLG Rulings Reveal Pitfalls for Online Retailers
Anyone who sells products in online stores naturally wants to describe and promote them in the best possible way. However, certain formulations and graphics can be legally problematic, as recent rulings from higher regional courts make clear. Online retailers should know the limits of what is permitted in order to avoid expensive warnings.
In recent weeks, two interesting rulings have been issued that are highly relevant for online retailers when designing product descriptions. They highlight typical pitfalls where supposedly effective advertising formulations or pictorial representations may be legally inadmissible. Online retailers should proactively understand these boundaries.
OLG Hamburg: Misleading Advertising for Sun Protection as "Innovation"
The Hamburg Higher Regional Court (judgment of November 16, 2022, Case No. 5 U 42/22) addressed the advertising of a sunscreen product. The defendant promoted this product as an “innovation” and emphasized protection from “HEV Blue Light” with a striking blue graphic. In the advertisement, HEV Blue Light was visually presented as equally important as UVB and UVA rays.
The court deemed this misleading for the target audience. While protecting the skin against HEV Blue Light is generally beneficial and can be advertised, this specific type of advertising created a false impression. It suggested that HEV Blue Light protection is as crucial and necessary as protection against UV radiation.
The scientific consensus, however, is that UV radiation is by far the more significant factor in harmful skin changes, including sunburn, premature aging, and skin cancer. HEV Blue Light, on the other hand, plays only a minor role. Furthermore, the advertising using the term “innovation” was also misleading. It implied that this was the first sunscreen with HEV protection ever on the market, when the actual innovation was merely a new type of filter against UV and blue light.
OLG Schleswig: Misleading Information About Engine Oil
The Higher Regional Court of Schleswig (judgment dated January 25, 2023, Case No. 6 U 73/21) examined the advertising of an oil manufacturer for a specific motor oil. The manufacturer used the terms “OEM” and a Mercedes-Benz label in its advertising on packaging and in brochures.
Here, the court also found that the target audience of motor oil owners was misled. By using “OEM” (Original Equipment Manufacturer), the characteristic (erroneously) as an original part of a vehicle manufacturer was claimed. In reality, the advertised oil was from a supplier, not directly from Mercedes. For more insights on this, you can refer to our article on white label vs. OEM contracts.
According to the court, the use of the Mercedes-Benz labeling itself was not inherently misleading. However, without the explicit addition of “release”, the average customer would understand it as an endorsement or approval of the oil by Mercedes. In fact, the labeling only described the specifications that the oil met.
Key Takeaways: Caution with Superlatives and Visual Effects
Both cases illustrate that online retailers must exercise caution, especially when advertising health, care products, or technical items like engine oils. Superlatives such as “innovation”, “revolution”, or “our new standard” require critical examination. They often suggest a beneficial progress that does not objectively exist.
Visual advertising messages are also tricky, as they can easily create a false overall impression. For example, graphically equating different product features (UV vs. blue light; OEM vs. supplier) gives a misleading impression of their actual significance.
Instead, online retailers should focus on clear, concrete, and verifiable information about product features. Flowery advertising language and showmanship carry the risk of a warning. The goal should be to provide customers with a realistic picture of the product, thereby avoiding legal pitfalls. This approach helps avoid competition law issues in digital marketing.
Conclusion: Advertising Should Not Exaggerate Expectations
These new OLG rulings serve as prime examples that online retailers should carefully review their advertising claims. Particular caution is advised regarding promotional phrases and comparative illustrations. These can easily constitute misleading advertising if they attribute properties or benefits to a product that it does not objectively possess.
Overall, advertising must not promise more than the product actually delivers. If expectations are overstated, there is a significant risk of costly warnings. Therefore, realistic product information should always be paramount, rather than exaggerated praise in words and pictures. This approach offers a promising and legally secure way to advertise.