Violation of the Biocide Regulation – Judgment of the CJEU of June 20, 2024, Case C-296/23
Advertising biocide products such as disinfectants as skin-friendly is misleading and therefore inadmissible. This was clarified by the Court of Justice of the European Union (CJEU) in its ruling on June 20, 2024 (Case C-296/23).
Biocide products can pose certain risks to health and the environment. The Biocide Regulation stipulates that advertising for these products must not be misleading, and risks must not be concealed or downplayed. Such advertising violates the Biocide Regulation and competition law. This can lead to warnings, cease-and-desist claims, and damages claims, according to the commercial law firm MTR Legal Rechtsanwälte, which provides advice in competition law, among other areas.
“Skin-Friendly” Disinfectant
The CJEU case concerned a biocide product, specifically a disinfectant offered by a drugstore chain. The product label included attributes such as “skin-friendly” and “organic.” The German Center for Combating Unfair Competition viewed these claims as inadmissible advertising and a violation of the Biocide Regulation.
Article 72 of the Biocide Regulation specifies that a product must not be represented in a way that is misleading regarding the risks to human or animal health, the environment, or its efficacy. Advertising for a biocide product must therefore never include statements such as “non-toxic,” “environmentally friendly,” “animal-friendly,” “low-risk biocide product,” or “similar indications.”
Risks Must Not Be Downplayed
The disinfectant in question was advertised as “skin-friendly.” The German Center for Combating Unfair Competition also viewed this term as inadmissible and pursued a cease-and-desist claim up to the German Federal Court of Justice (BGH). The BGH referred the matter to the CJEU to clarify whether the term “skin-friendly” falls under “similar indications” that are prohibited under the Biocide Regulation.
CJEU: Statement Misleading and Inadmissible
The CJEU ruled that the inadmissibility of advertising does not depend on whether a statement is general and sweeping or more specific and less generalizing. Under the Biocide Regulation, “similar indications” include any reference in advertising that downplays or negates risks or attributes certain positive properties to the products, thereby misleading consumers. This can occur through both general and specific statements.
Such misleading claims could lead to improper product use. For example, the term “skin-friendly” could imply positive effects and downplay risks. It could trivialize harmful side effects of the product or even create the misleading impression that using the product has a positive effect on the skin. Thus, the statement is misleading and therefore inadmissible.
Statements Do Not Need to Be General in Nature
The CJEU emphasized that, according to Article 72(3), second sentence of the Biocide Regulation, the term “similar indications” includes “any indication in the advertising of biocidal products that – like the indications mentioned in this provision – presents these products in a way that is misleading regarding the risks of these products to human or animal health, the environment, or their efficacy by downplaying or even negating these risks, without necessarily being general in nature.”
Following the CJEU’s decision, it is clear that prohibited indications do not have to be general but may also include more specific claims.
Advertising must not mislead consumers. If it does, this constitutes a violation of competition law. Such violations can result in warnings, cease-and-desist claims, and damages claims. In case of doubt, expert legal advice should be sought.
MTR Legal Rechtsanwälte provides advice on competition law and in the defense or enforcement of claims.
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