Federal Court of Justice and “climate neutral”

The Federal Court of Justice has ruled that advertising with an ambiguous environmental term (here: “climate neutral”) is only permissible if the advertising itself explains the specific meaning of this term.

Facts:

The plaintiff is the Central Office for Combating Unfair Competition. The defendant is a company that manufactures fruit gum and licorice products. The products are available from food retailers, kiosks and petrol stations. The defendant advertised in a food industry trade magazine with the statement: “Since 2021, [die Beklagte] has been producing all products in a climate-neutral way” and a logo showing the term “climate-neutral” and referring to the website of a “ClimatePartner”. The manufacturing process of the defendant’s products is not CO2-neutral. However, the defendant supports climate protection projects via “ClimatePartner”.

The plaintiff considers the advertising statement to be misleading. The target public understands this to mean that the manufacturing process itself is climate-neutral. At the very least, the advertising statement must be supplemented to the effect that climate neutrality is only achieved through compensatory measures. The plaintiff is claiming injunctive relief and compensation for pre-trial warning costs from the defendant.

Previous process history:

The landgericht dismissed the action. The applicant’s appeal was unsuccessful. The Court of Appeal was of the opinion that the plaintiff was not entitled to injunctive relief pursuant to § 8 para. 1, § 3 para. 1, Section 5 para. 1 UWG for misleading. Readers of the trade journal understand the term “climate-neutral” in the sense of a balanced CO2 emissions balance, as they are aware that neutrality can be achieved through both avoidance and compensation measures. A claim for injunctive relief also does not exist due to a violation of § 5a para. 1 and 3 UWG for withholding information on how the “climate neutrality” of the advertised product is achieved. This information is essential. However, the necessary information about the type and scope of any compensation could be obtained via the cooperation partner’s website, which is stated in the advertisement and can be accessed via a QR code printed in the advertisement. This is also reasonable for readers of the newspaper.

The plaintiff continued to pursue its claims with its appeal, which was allowed by the Court of Appeal.

Decision of the Federal Court of Justice:

The appeal was successful. The Federal Court of Justice ordered the defendant to cease and desist from advertising and to reimburse pre-trial warning costs. Contrary to the opinion of the Court of Appeal, the advertising complained of is misleading within the meaning of Section 5 para. 1 UWG. The advertising is ambiguous because, according to the findings of the Court of Appeal, the term “climate-neutral” can be understood by the readers of the trade journal – no differently than by consumers – both in the sense of a reduction of CO2 in the production process and in the sense of a mere compensation of CO2. The Court of Appeal did not take into account that in the area of environment-related advertising – as with health-related advertising – the risk of misleading is particularly high and that there is an increased need to inform the target public about the meaning and content of the terms and signs used. In the case of advertising that uses an ambiguous environmental term such as “climate neutral”, the specific meaning must therefore be explained in the advertising itself in order to avoid misleading consumers. Informative information outside of environmental advertising is not sufficient in this respect. An explanation of the term “climate-neutral” was necessary here in particular because the reduction and offsetting of CO2 emissions are not equivalent measures for achieving climate neutrality, but the reduction takes priority over offsetting from the point of view of climate protection. The deception is also relevant in terms of competition, as the advertising of a product with a supposed climate neutrality is of considerable importance for the consumer’s purchasing decision.

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.