We recycle ourselves! - OLG Frankfurt a.M. on mislea-ding advertising of an ecological cleaning agent

The decision of the Federal Court of Justice (BGH) in the ‘climate-neutral’ case on the competition law requirements for advertising with ambiguous, environmentally-related terms is now being implemented by the courts of first instance. After the Higher Regional Court of Cologne commented on CO2-neutral travel, the Higher Regional Court of Frankfurt a.M. now also considers ambiguous advertising statements on the environmental compatibility of recycling material from the yellow bag, on the defendant's recycling efforts and on climate neutrality to be misleading and also applies the standards to web links to further information (Higher Regional Court of Frankfurt a. M. (6th Civil Senate), judgement of 12/19/2024 - 6 U 33/24).

Advertising statements on pollutant content and carbon footprint
The dispute between two manufacturers of ecological laundry detergents and cleaning products before the Frankfurt Higher Regional Court centred on advertising statements made by the defendant about its dishwasher detergent bottles. Specifically, it concerned the statements that these were the ‘first recycled bottles’ from the defendant itself, that it would recycle them itself, and that ‘recycled PE’ from the yellow bag could always contain residues of synthetic fragrances, heavy metals, pesticides, etc.

In addition, the defendant used the ‘climate neutral’ logo of the company ClimatePartners on its homepage, behind which a website with further information could be called up by clicking on it. The plaintiff considered the advertising claims and the presentation of the information on ‘climate neutrality’ to be misleading.

 

Ambiguous environmental term ‘recycled PE’ not sufficiently explained

The Higher Regional Court of Frankfurt a.M. has now largely ruled in favour of the plaintiff. The term ‘recycled PE’ was ambiguous in the specific context. It could either refer to already recycled polyethylene or the source material or plastic (‘PE’) from the Yellow Bag. If, as the defendant had to accept, the statement was understood in relation to the already finished recyclate, this would be misleading, because this material would in any case not harbour a higher risk of containing heavy metals and/or pesticides if the starting material was sufficiently processed as usual by the plaintiff and in accordance with the state of the art. The defendant should have clearly and unambiguously resolved this ambiguity in the advertising itself.

Environmental contribution must be more than just symbolic

The court also considers the defendant's statement that it recycles itself to be misleading because consumers would expect that a significant return system already exists and that the specific product depicted has outer packaging that consists at least to a significant extent of recycled material. However, the defendant had set up a maximum of 150 return boxes in small and smaller organic markets and the proportion of self-recycled bottles was therefore well below 1%. In addition, a large number of the new bottles advertised were made entirely from virgin plastic.

Clear references to links to further information necessary

The court also commented on the specific presentation of further information on climate neutrality by means of a link behind the climate neutral logo, which was not relevant to the decision. Although a link is permissible in principle, it must be sufficiently clear and unambiguous. However, the public would not expect or regularly simply find out that a corresponding link was hidden behind the logo. A clear reference to the link is therefore necessary.

Conclusion: Requirements for environmental claims further specified

The Higher Regional Court of Frankfurt a.M. continues the case law of the Federal Court of Justice on ‘climate neutral’ and shows that there is a fundamental risk that environmental terms, in this case ‘recycled PE’, have more than one meaning. This ambiguity must therefore be taken into account in environmental advertising and clarified on the spot. Anyone using a link to further information must make sufficient reference to this.