14. November 2013
A court in Germany recently held that a travel company’s advertising failed to fulfil German advertising law obligations to provide basic information to consumers. Information on the company’s address and identity were missing. Here is an overview of company obligations concerning advertising.
German advertising law and the duty to provide information
It can be derived from § 5a of the German Unfair Competition Act, that the obligation to provide basic company information in advertising exists if – (a) products or services are offered; and (b) they are offered in such a way that an average consumer can enter a transaction.
This generally means that the obligation to provide information arises once there is sufficient information in an advertisement about the characteristics or price of a product or service which enable a consumer or decide whether to make a purchase or not.
The Higher Regional Court of Schleswig-Holstein stressed in a recent case that the duty to provide information exists when the fundamental contractual provisions are made public (case ref.: 6 U 28/12). In this particular case, it was sufficient that the contractual conditions that were made available enabled the consumer to make a decision to purchase.
It follows from this that advertisements containing images and so-called reminder advertisements do not have to fulfil the information requirements.
What does the duty to provide information entail?
An advertisement to which the duty to provide information applies must contain the following:
1. Main characteristics
An advertisement must contain all the main characteristics of the product or service.
The main characteristics of a product are those which are likely to influence a consumer’s purchasing decision. Such characteristics include: availability, the nature, quality and finish, the composition, the advantages and risks, the date of manufacturer, the number.
2. Identity of the seller
The seller must provide details of their address and identity. Under certain circumstances the seller must also provide information on the company for which they are acting.
Details of the price of a product or service must also be provided in an advertisement. If it is not possible because of the nature of the product to display a price in advance, details of how the price is calculated must be provided.
All additional fees such as postage, packaging and shipping must also be displayed; or if this is not possible, consumers’ attention must be drawn to the fact that such costs will be charged.
Information must be provided on the general conditions that apply to a purchase. These include conditions for payment, delivery and contractual performance, as well as details on the complaints procedure.
5. Right to withdraw
Finally, information must be provided on a consumer’s right to withdraw from a transaction or to terminate a contract; including details of the legal consequences of opting to terminate a contract.
If you fail to provide the correct information in your advertising you risk receiving warning letters from competitors. Warning letters are expensive, but with solid legal advice they can be avoided.
If you would like assistance in ensuring that your advertising campaign fulfils the legal obligations on providing information to consumers, contact our team of expert German lawyers.
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Categories: Advertising Law