In its decision of 20 April 2023, Az. I ZR 108/22, the Federal Court of Justice (BGH) referred a question to the European Court of Justice (ECJ) regarding the interpretation of Art. 72 (3) sentence 2 of Regulation (EU) No. 528/2012 (Biocidal Products Regulation) and raised the question:
‘Are ‘similar statements’ within the meaning of Article 72 (3) sentence 2 of Regulation (EU) No. 528/2012 only those statements contained in an advertisement which, in the same way as the terms explicitly listed in this provision, in a blanket manner trivialise the properties of the biocide with regard to the risks of the product for human or animal health or the environment, or its efficacy, or do the term ‘similar indications’ include all terms which, with regard to the risks of the product for human or animal health or for the environment or its efficacy, have a similar, but not necessarily generalising, trivialising effect as the specifically listed terms?“.
The drugstore chain dm had advertised a disinfectant with 0.049 per cent sodium hypochlorite (NaClO) by weight as skin-friendly, which the German Centre for Protection against Unfair Competition objected to as misleading and unlawful. Both the Higher Regional Court of Karlsruhe and the Federal Court of Justice were of the opinion that the term ‘skin-friendly’ does not fall under Art. 72 (3) sentence 2 of the Biocidal Products Regulation as a similar term because it does not qualify the risk potential of the product or its effects or their harmfulness, but would be merely a very general description of the product effect on a specific organ, namely the human skin.
The ECJ has clearly rejected this and made it clear that both general and specific statements that play down the risks of biocidal products can be misleading. With regard to the term ‘similar statements’, the ECJ states in paragraph 30 that these statements are used in relation to the information listed in that sentence and in paragraph 32 that the wording of Article 72 (3) sentence 2 of the Regulation does not indicate that the prohibition on their use in advertising for biocidal products would be limited only to general statements. The context in which Article 72(3) sentence 2 of the Regulation is set also shows that an essential part of the system introduced by the Regulation is, in particular, the effective communication of information on the risks associated with biocidal products, so that advertising must enable consumers to obtain sufficient information on the risks associated with the use of the products and to assess these correctly in order to make an informed choice. This would also follow from the labelling requirements for such products (Art. 69 (1) in conjunction with recital 53 of the Regulation and the hazard and precautionary statements according to Directive 1999/45 and Regulation No. 1272/2008). In addition, Art. 69 (2) of the Biocidal Products Regulation formulates in just one sentence the prohibition that the label of biocidal products must not be misleading with regard to the risks of these products for human or animal health or for the environment or their effectiveness and must not contain any information that is obviously misleading, as listed in Art. 72 (3) of the Regulation. Therefore, Article 72(3) of Regulation No 528/2012 is a general rule for the advertising of biocidal products that is based on the reaction of consumers to the perception of the risks of these products for human or animal health or for the environment and applies regardless of the actual risks and properties of these products.
The aim of the regulation was to balance the free movement of biocidal products with a high level of protection for human and animal health and the environment. To that end, the legislature had sought to regulate in a detailed and comprehensive manner the wording of information on the risks associated with the use of biocidal products in advertising for those products, expressly prohibiting certain statements and generally seeking to prohibit any advertising statements that were misleading with regard to the risks of such products.
It would appear from the written observations of the European Commission that statements referring to the absence of risk or a low risk or to certain positive effects of these products in order to play down or even negate these risks would encourage excessive, careless or incorrect use of these products, which would run counter to the aim of minimising their use.
Therefore, the ECJ clearly states in paragraph 46 of the judgment that the claim ‘skin-friendly’ is a claim that has a positive connotation at first glance and avoids mentioning any risks, and is likely to relativise the harmful side effects of this product or to suggest that this product could even be beneficial for the skin. The claim ‘skin-friendly’ for a disinfectant is therefore misleading within the meaning of Article 72(3) of Regulation No 528/2012, so that a ban on its use in advertising for this product is justified.
In response to the question referred for a preliminary ruling, the ECJ replied in point 48 that the term ‘similar indications’ within the meaning of this provision includes any indication in advertising for biocidal products which, like the information referred to in this provision, presents these products in a manner that is misleading with regard to the risks of these products for human or animal health or for the environment or their effectiveness, by playing down or even negating these risks, but without necessarily being of a general nature.
The Federal Court of Justice must now decide on the specific case, taking into account the criteria set by the ECJ.
In paragraph 44, the ECJ also explicitly stated that statements that neither trivialise nor exclude risks posed by biocidal products to human or animal health or to the environment, or with regard to their efficacy, generally do not fall under the prohibition of use in the advertising of biocidal products as provided for in Article 72 (3) of this Regulation.
