Misleading advertising — CO2 footprint reduction wine ‘Footprint organic wine’

A Consumer Protection Agency (Verbraucherzentrale) brought an action against a major nationwide discount supermarket chain (Netto Marken-Discount), concerning the supermarket chain’s private brand BioBio’s prominent front-label slogan of a wine reading “FOOT PRINT reduces your CO₂ footprint” (“FOOT PRINT REDUZIERT DEINEN CO₂ FUSSABDRUCK”). The environmental benefit, however, related only to the glass bottle, which was produced using a high proportion of recycled glass and renewable electricity. The wine itself was not produced using a particularly low-emission method.

On July 14, 2023, the Regional Court ruled in favor of the consumer association, prohibiting the supermarket chain from continuing the use of the slogan. The court found the practice as misleading advertising under § 5(2)(1) UWG, given that the slogan can create a false impression among average consumers that the wine itself was produced in an environmentally friendly manner, rather than just the bottle.

On November 15, 2023, the Higher Regional Court of Nuremberg (Oberlandesgericht Nürnberg) upheld the lower court’s decision. The court rejected the argument that information on the back label could cure the misleading front-label claim. Where an environmental claim is presented prominently as eye-catching advertising (blickfangmäßige Werbung), a misleading impression must be corrected by a clear and unambiguous qualification that itself participates in the visual prominence of the claim. The “ECO2Bottle” symbol did not sufficiently connect the back-label explanation to the prominent CO₂ claim.

The court emphasized that environmental advertising is subject to particularly strict standards, given the importance of environmental characteristics to consumer purchasing decisions and the potential ambiguity of environmental terminology. Because the claim was at least capable of being understood as referring to the wine itself, that ambiguity was sufficient to establish misleading advertising.