Federal Court Rules Against Misleading Packaging Both Online and Offline
Consumers often face disappointment due to packaging that appears to contain more goods than it actually does. The highest court in Germany, the Federal Court of Justice (BGH), has taken action against these so-called bulging packages.
The court in Karlsruhe has ruled that if a product packaging is only about two-thirds filled, it is an illegal bulging package, regardless of whether it is sold in a store or online. According to the presiding judge, Thomas Koch, a packaging that does not match its actual content misleads consumers no matter the sales channel.
In this case, L'Oreal, a cosmetics and body care company, advertised a men's shampoo on their website alongside an image of a plastic tube with a screw cap. The issue was that the tube only contained shampoo up to the end of the visible part, while the image suggested it was almost fully filled. The Consumer Center Baden-Württemberg claimed this advertising was misleading.
Law in Germany strictly regulates packaging. The Measurement and Calibration Act states that misleading packaging cannot be manufactured or marketed. Previous rulings considered a packaging a bulging package when it contained less than two-thirds of the filling.
Lower courts were initially unsuccessful with the case. The Higher Regional Court (OLG) Düsseldorf deemed the packaging only about two-thirds full and a bulging package in a store context. However, they argued that online consumers couldn't see the packaging's real size, which made no difference since the amount shown was correct per milliliter. The BGH disagreed. According to Koch during the April hearing, the Karlsruhe Senate would likely not accept this assessment.
Therefore, the judgment from the highest German civil court also changed. The BGH overturned the previous decisions and instructed L'Oreal to stop this behavior. A company spokesperson said they respected the BGH's decision and were waiting for the final judgment, including the grounds for the decision. "The Consumer Center is suing over a packaging we removed from the market more than four years ago and haven't sold in this form for more than two years," they added.
Germany is not the only country with packaging regulations. The Unfair Commercial Practices Directive in the EU bans misleading omissions, actions, and statements, including misleading packaging. The EU Packaging and Packaging Waste Directive requires packaging to be designed and manufactured so it can be reused, recycled, or recovered.
The decision of the Karlsruhe Senate, according to the managing director of the Consumer Center Baden-Württemberg, Cornelia Tausch, will encourage consumers. She expressed hope that the position of consumers would be further strengthened by the new EU packaging law, which aims to reduce packaging waste by at least 15% in the EU by 2040. The new regulations, which minimized packaging weight and volume for manufacturers, were also confirmed by the European Parliament.
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