Advertising with climate neutrality
The German Federal Court of Justice (BGH) does not follow the decisions of the Regional Court of Kleve (LG Kleve judgment of 22/06/2022, 8 O 44/21) and the Higher Regional Court of Düsseldorf (OLG Düsseldorf judgment of 06/07/2023, I 20 U 152/22).
The BGH has clearly tightened the requirements for advertising with the term “climate neutral”. A well-known manufacturer of fruit gums and liquorice had advertised with the term “climate neutral” on its products, referring to a website for further information as follows:
For the lower courts, offsetting measures are sufficient for climate neutrality
The LG Kleve had dismissed the claim – climate neutrality is not emission-free and can also be achieved through compensation measures. The Higher Regional Court followed the Regional Court; consumers understand “climate neutral” as a balanced CO₂ emissions balance of the company, which can be achieved through the manufacturing process as well as through compensation measures. Nowadays, goods and services are advertised as climate–neutral, such as air travel, for which only compensation payments can help to achieve climate neutrality. This does not constitute misleading advertising in accordance with Section 5 (1) UWG (German law of unfair competition).
Special legal requirements for environmental protection terms
According to the case law of the BGH, the strict requirements for the correctness, unambiguity and clarity of the advertising statement, which are decisive for health-related advertising, also regularly apply to advertising with environmental terms and symbols. The risk of being misled is particularly high in the case of environmental and health–related advertising.
Precedence of reduction over compensation of CO₂ emissions
The term “climate-neutral” is ambiguous because it can be understood both as avoiding CO₂ emissions and in the sense of offsetting the company’s CO₂ emissions. An explanation is therefore necessary for clarification, because the reduction and compensation of CO₂ emissions are not equivalent measures for achieving climate neutrality.
Due to the special legal requirements for advertising with environmental claims, it is not sufficient to inform consumers outside of advertising. Informative references must always be made in the advertising itself.
Aufgrund der besonderen rechtlichen Anforderungen an Werbung mit Umweltaussagen genügt eine Aufklärung der Verbraucher außerhalb der Werbung nicht. Aufklärende Hinweise müssen grundsätzlich in der Werbung selbst erfolgen.
To the point
The BGH has clearly specified the requirements for advertising with environmental claims. Companies should already be guided by the requirements of the Empco Directive.
Source: Judgment of the First Civil Senate of 27/06/2024 – I ZR 98/23 – (bundesgerichtshof.de)