At a glance
- The target audience’s understanding counts
- Ambiguous claims must be true in every meaning
- Secure evidence before launch
Misleading advertising is the most common reason for warning letters in Germany. Not only outright lies are prohibited, but any statement that creates an impression among the target audience that does not correspond to reality and is likely to influence their commercial decision.
The yardstick
What matters is not what the advertiser meant, but how an average, reasonably well-informed and observant member of the target group understands the statement. Ambiguous statements must be correct in every obvious meaning. Courts apply particularly strict standards to health and environmental claims.
Typical cases under Section 5 UWG
- characteristics and effects: “clinically tested”, “100% natural”, unsupported efficacy claims
- superiority claims: “No. 1”, “market leader” – only with a clear and lasting lead the advertiser can prove
- tests and awards: no source given, outdated tests, highlighting a good partial result
- geographical and commercial origin: “Made in Germany”, regional claims
- price: inflated reference prices, hidden extra costs – see price advertising
- availability: bait offers, “in stock” despite shortages
- business identity: size, age, qualifications, certifications
- likelihood of confusion with competitors’ products or marks
- dual quality of goods in different Member States
Misleading by omission (Sections 5a, 5b UWG)
Withholding information that consumers need for an informed decision is unfair. For specific offers, Section 5b UWG lists material information, such as main characteristics, identity and address of the trader, total price, terms of payment and delivery, and withdrawal rights. A separate case is failing to disclose the commercial intent (Section 5a(4) UWG) – advertising must be recognisable as such.
Burden of proof
In principle, the claimant must prove that a statement is misleading. For facts only the advertiser knows, the advertiser bears a secondary burden. For health-related claims, the burden effectively shifts: whoever advertises with scientific statements must be able to substantiate them. Tip: collect and date evidence for every factual claim before launch.
Selected case law
- BGH, 27 June 2024, I ZR 98/23 (“climate neutral”): ambiguous environmental terms must be explained in the advertisement itself.
- BGH, 17 May 2018, I ZR 252/16 (“bekömmlich”): describing beer as “digestible” is an impermissible health claim.
- CJEU, 26 September 2024, C-330/23 (Aldi Süd): an announced price reduction must be based on the lowest price of the previous 30 days.
