New OLG rulings on product descriptions in online trade

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 by 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 by higher regional courts that may be relevant for online retailers when designing product descriptions. They point out typical pitfalls where supposedly effective advertising formulations or pictorial representations may be legally inadmissible.

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) had to deal with the advertising of a sunscreen product of a cosmetics company. The defendant touted this as an “innovation” and highlighted the protection from “HEV Blue Light” with an eye-catching blue graphic. In advertising, HEV Blue Light was visually placed on a par with UVB and UVA rays.

The court saw this as misleading the target public. It is true that protection of the skin against HEV Blue Light makes sense in principle and can be advertised. However, the specific type of advertising creates the false impression that this protection is just as important and necessary as protection against UV radiation.

In fact, however, the scientific consensus is that UV radiation is by far the more significant factor in harmful skin changes such as sunburn, premature aging and skin cancer. HEV Blue Light, on the other hand, plays only a minor role. The advertising with “innovation” was also misleading, as it suggested that it was the first sunscreen with HEV protection ever on the market. However, the actual innovative content of the product lies only in 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) dealt with the advertising of an oil manufacturer for a motor oil. The latter used the terms “OEM” and a Mercedes-Benz label when advertising the oil on its packaging and in brochures.

Here, the court also saw a misleading of the targeted public of motor oil owners. With “OEM” (Original Equipment Manufacturer) the (false) characteristic as an original part of a vehicle manufacturer is claimed. In reality, however, the advertised oil came from a supplier, not from Mercedes itself.

According to the court, the use of the Mercedes-Benz labeling was not per se misleading. Without the addition of “release”, however, it would be understood by the average customer as a release of the oil by Mercedes. In fact, however, the labeling only describes the specifications that the oil meets.

The judgments show: Caution with superlatives and image effects

Therefore

Both cases make it clear that online retailers should exercise caution, especially when advertising health and care products such as sunscreens or technical products such as engine oils. Superlatives such as “innovation”, “revolution” or “our new standard” must be critically examined. They often suggest beneficial progress that does not objectively exist.

Image-supported advertising messages are also tricky, as they can often create the wrong overall impression in the viewer’s mind. For example, the graphic equation of 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 give the customer a realistic picture of the product. Then legal pitfalls can also be avoided.

Conclusion: Advertising should not exaggerate expectations

The new OLG rulings show in an exemplary manner that online retailers should carefully check their advertising claims. Caution is advised, especially with regard to promotional phrases and comparative illustrations. These can easily constitute misleading if the product is attributed properties or a benefit that it does not objectively have.

Overall, advertising must not promise more than the product actually delivers. If expectations are overstated, there is a risk of costly warnings. Therefore, realistic product information should be in the foreground, not exaggerated praise in words and pictures. This is a promising and legally secure way to advertise.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.