Within the European Union, Regulation 2018/848 of 30.05.2018 (hereinafter: EU Organic Regulation) regulates the advertising of organic products, in particular for agricultural food production. Advertising with inaccurate labels or seals constitutes an unfair and therefore illegal form of advertising under national competition law. However, if the requirements of the regulation are met, it is always “fair” advertising.
Requirements of the EU Organic Regulation
According to the regulation, organic labels may only be advertised if the organic control number of the company that carried out the last production operation is visibly displayed on the product and the product complies with all production, cultivation and reporting requirements of the EU Organic Regulation and is manufactured accordingly. In addition, the type of agriculture from which the advertised product originates (EU, non-EU, EU/non-EU) must be stated. With the exception of agricultural foodstuffs, national legislation allows “organic” to be used in advertising if the products are free from harmful substances and residues or only contain these in small quantities below the legally permitted limits.
Pitfalls with private quality marks
Even if the advertised product actually meets the requirements, the advertising may be unlawful under Section 3 para. 3 No. 2 UWG if it is made without authorization. It is then prohibited to falsely claim to be an authorized trademark user. The use of self-created seals is particularly risky. Creating your own seals is generally permitted. However, if this creates the impression of an official organic seal, this can lead to unjustified consumer confidence in the quality of the labeled products. After all, the average consumer assumes that the seal has been tested by an independent third party according to recognized standards and subsequently awarded. The decisive factor is the overall impression, which gives the impression of an official seal regardless of the graphic similarity (OLG Munich, judgment of December 1, 2021, Ref.: 6 U 1973/21).
Practical example: Misleading advertising with “premium water in organic quality”
The Higher Regional Court of Frankfurt a. M. (OLG Frankfurt a. M., judgment of April 29, 2021 – Ref.: 6 U 200/1) has ruled that Danone may no longer refer to “Volvic” water as “premium water in organic quality” and has banned numerous advertising claims to this effect. The reason given was that the water had to be treated due to an increased arsenic content. This does not correspond to consumer expectations of “premium mineral water in organic quality”. Rather, consumers imagine this term to mean water that is significantly purer and untreated compared to other products in the same category. The advertising statement about the “organic quality” of the mineral water was therefore misleading. Neumarkter Lammsbräu, which also sells a mineral water with an organic seal, had filed a lawsuit. The various private organic labels on the market have led to different criteria and confusion among consumers. However, the decision is not yet legally binding.
The organic labeling of mineral water, for example, is not regulated by the EU Organic Regulation. However, there are discussions at European level as to whether the term “organic” for mineral water should be included in the EU Organic Regulation. In any case, the expectations of the target public are decisive. For example, if a product is advertised as biodegradable, the consumer expects the product to be faster, better and, above all, completely biodegradable. If, in reality, certain additional requirements must first be met in order to achieve this goal, this must be made clear by means of a clear reference (OLG Düsseldorf, judgment of June 5, 1986 – 2 U 16/86).
