Wettbewerbszentrale v. Katjes Fassin GmbH + Co. KG (“climate neutral”)

The Zentrale zur Bekämpfung unlauteren Wettbewerbs (Wettbewerbszentrale), a German nonprofit association for fair competition, brought a claim against confectionery manufacturer Katjes Fassin GmbH + Co. KG, challenging an advertisement published in the trade journal Lebensmittel Zeitung on February 19, 2021. The advertisement promoted Katjes fruit gummies with the words "[s]eit 2021 produziert Katjes alle Produkte klimaneutral" ("since 2021, Katjes produces all products climate-neutrally"). The promotion was accompanied by a "klimaneutral" ("climate neutral") label and a reference to the website of carbon offset provider ClimatePartner, accessible via URL and QR code. Plaintiffs alleged that this was misleading, as the production process itself was not CO₂-neutral; Katjes instead compensated its emissions by purchasing credits for climate protection projects through ClimatePartner. The Landgericht Kleve dismissed the claim, finding the advertisement not misleading for the trade readership of the journal. On appeal, the Oberlandesgericht Düsseldorf upheld the dismissal, finding that the term "klimaneutral" was understood by consumers as referring to a balanced CO₂ accounting achievable through either reduction or compensation. The court explained that the reference to ClimatePartner's website provided sufficient clarification. On June 27, 2024, the Federal Court of Justice (Bundesgerichtshof, BGH) reversed the decision. The BGH found the advertisement misleading under § 5 Abs. 1 of the Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG). The BGH held that the term "klimaneutral" is inherently ambiguous: it can be understood either as actual CO₂ reduction in the production process or as mere compensation through offset credits. Because reduction and compensation are not equivalent measures — with reduction taking priority over compensation ("Grundsatz des Vorrangs der Reduktion gegenüber der Kompensation") — the ambiguity itself constitutes active misleading without adequate in-advertisement clarification. The court further held that, given the particularly high risk of misleading consumers in environmental advertising (analogous to health-related advertising), clarification must appear in the advertisement itself; a reference to an external website via QR code is insufficient. The BGH ordered Katjes to cease and desist from advertising in the challenged form. This is Germany's first ruling by the Federal Court of Justice on the permissibility of "climate-neutral" advertising claims and has since become the leading authority cited in all subsequent German greenwashing litigation.