In a legal dispute between the Wettbewerbszentrale, Katjes (OLG Düsseldorf, judgment of July 6, 2023 – 20 U 152/22) and the jam manufacturer Mühlhäuser (OLG Düsseldorf, judgment of July 6, 2023 – 20 U 72/22), the OLG Düsseldorf ruled on the requirements for a company’s duty to inform consumers when advertising with the term “climate neutral” and assessed the facts differently in both decisions.
Legal dispute over “climate-neutral” advertising: Katjes and Mühlhäuser in court
The Wettbewerbszentrale argued that both companies should stop advertising with “climate neutral” as this was misleading. The consumer could assume that the production process was actually climate-neutral, which is not the case. Even if the advertising in the food magazine was aimed more at a specialist audience, consumers could also subscribe to the magazine. The Wettbewerbszentrale also argued that additional information from the companies was necessary, as climate neutrality was only achieved through compensatory measures. In this case, the food producers had supported climate protection projects abroad in order to achieve a balanced CO2 footprint. Nevertheless, the Düsseldorf Higher Regional Court ruled that Katjes may continue to advertise its confectionery as “climate neutral”, while the jam manufacturer was prohibited from doing so. This was justified by the fact that Katjes, unlike the jam manufacturer, had fulfilled its duty to inform the consumer.
Climate neutrality through compensation measures
According to the court, the average consumer is aware that climate neutrality refers to a balanced carbon footprint, which can be achieved both through offsetting measures such as trading in certificates and through avoidance. The court emphasized that consumers understand that products and services can be advertised as “climate neutral” even if they are not completely emission-free, such as air travel. Therefore, not all advertising with the term “climate neutral” is inadmissible. Rather, it depends on transparency and communication to the consumer.
Breach of the duty to inform
A claim for injunctive relief may exist if the advertiser breaches its duty to provide information in accordance with Sections 5, 5a UWG. Precisely because consumers know that a balanced carbon footprint can also be achieved through offsetting measures, there is a particular interest in information on how the advertised climate neutrality of the product is achieved. This is essential information. After all, climate protection is becoming increasingly important for consumers and has a considerable influence on their purchasing decisions.
Katjes provided the necessary information via a QR code in the advertisement of a food magazine. This led to a website of “ClimatePartner.com”, where the necessary information could be found. The court found that Katjes had sufficiently fulfilled its information obligations. The space in the newspaper advertisement was limited, so that the QR code was sufficient. In the Mühlhauser case, on the other hand, there was a lack of information both in the advertisement and on the product packaging about how the advertised climate neutrality was achieved. Mühlhäuser ultimately lost the case. The judge argued that the decisive factor was whether the companies provided consumers with sufficient information about how the “climate neutral” label was achieved.
