Higher Regional Court of Schleswig’s decision on company’s climate neutral claims regarding bin liners

The plaintiff contests the distribution of bin liners in a package with a label ‘climate neutral’ as well as the indication that the product supports Gold Standard certified climate protection projects in order to achieve the UN climate goals. On July 2021, the Regional Court of Kiel found the advertising claim to be misleading pursuant to §§ 5 para. 1 and §5a para. 2 of the Act against Unfair Competition. It stated that the average consumer understood the claim ‘climate neutral’ in relation to all of the defendant’s products. But because the defendant produced non-climate neutral products as well, this was inaccurate. Furthermore, the Regional Court stressed that climate neutrality could be achieved through various means. In order for the consumer to make an informed decision, it was essential that they received information on the manner through which climate neutrally was achieved in an unproblematic way. The Regional Court did not find the indication on the support of Gold Standard certified climate protection projects as sufficient in this regard. The Regional Court found the indication of a website or a QR code on the packaging which included the relevant information to be necessary. This was not the case, as the information on the climate protection projects could only be found on further sub-websites. The Regional Court thus found that this did not meet the disclosure requirements, and moreover, that it suggested that the whole company was climate neutral even though this was not the case. However, on June 2022, the Higher Regional Court of Schleswig overturned this judgment. It did not find the design of the packaging to be misleading pursuant to § 5 para. 1 of the Act against Unfair Competition. Furthermore, it did not find the missing information on the packaging as to how climate neutrality was achieved as misleading by omission pursuant to § 5a of the Act against Unfair Competition, because it held that the means of achieving climate-neutrality was not essential information. More specifically, the Higher Regional Court held that the claim ‘climate neutral ‘did not suggest that the company exclusively produced climate neutral products. Furthermore, it stated that ‘climate neutrality’ was an unambiguous statement and that it meant that the products advertised with it had a balanced carbon footprint. Lastly, it held that the claim ‘climate neutral’ did not mean that the balanced balance was achieved completely by avoiding emissions during the production. This applied all the more if the claim was combined with a clearly visible indication that climate protection projects were supported in order to achieve climate neutrality. It stated that explanatory notes on the type and scope of the compensation measures were not required. Thus, it did not find that the advertising claim ‘climate neutral’ for a product was misleading per se. This was all the truer if at the same time it was pointed out that climate neutrality was achieved through compensation measures.