The Court of Justice of the European Union (CJEU) has delivered a significant judgement regarding the interpretation of advertising restrictions for biocidal products under EU Regulation No 528/2012. The ruling addresses the scope of the term "any similar indication" in the context of misleading advertisements for biocidal products.
Background of the Case
The case originated from a request for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany). The request was made in the context of proceedings between Zentrale zur Bekämpfung unlauteren Wettbewerbs eV (ZBUW), an association for the protection against unfair competition, and dm-drogerie markt GmbH & Co. KG (dm), a major German drugstore chain.
The dispute involved the marketing of a disinfectant product named "BioLYTHE." The product's label included terms such as "Ecological Universal Broad-Spectrum Disinfectant," "Skin, hand and surface disinfection," "Effective against SARS-Corona," and "Skin friendly • Organic • Alcohol-free." ZBUW challenged these descriptions, arguing they violated the advertising rules for biocidal products under EU law.
Key Legal Provisions
The relevant legal framework includes Article 72 of Regulation (EU) No 528/2012, which governs the advertising of biocidal products. Specifically, it prohibits advertisements from including misleading claims regarding the product's risks to human health, animal health, or the environment. It also expressly prohibits certain terms such as "low-risk biocidal product," "non-toxic," "harmless," "natural," "environmentally friendly," "animal friendly," and any "similar indication."
Court's Judgement
The CJEU clarified the interpretation of the phrase "any similar indication." The Court ruled that this phrase includes any statement in the advertising of biocidal products that, like the expressly prohibited terms, downplays or denies the risks associated with the product, even if the statement is not general in nature.
The Court emphasised that the indications prohibited by the second sentence of Article 72(3) of Regulation No 528/2012 are inherently misleading because they suggest the absence of risk, contrary to the known risks biocidal products pose to humans, animals, and the environment.
Impact on the Dispute
The Court's interpretation directly impacts the labelling and advertising of "BioLYTHE" by dm. Specifically, the term "skin friendly," used in the product's marketing, was found to downplay the risks of the biocidal product and thus falls within the scope of prohibited statements under the regulation. Consequently, dm's advertising practices were deemed misleading and in violation of EU law.
Broader Implications
This judgement reinforces the EU's stringent standards for biocidal product advertising, aiming to ensure consumers are not misled about the potential risks associated with these products. The ruling underscores the EU's commitment to high levels of protection for human and animal health and the environment, consistent with the precautionary principle underlying Regulation No 528/2012.
The decision mandates that all advertising statements for biocidal products must accurately reflect their risks, providing consumers with clear and truthful information. This approach is intended to prevent any false sense of safety that could arise from misleading advertising claims, thus promoting safer use of biocidal products across the EU.
