Media Law Column by Gerald Ganzger
The Austrian Supreme Court (OGH) has ruled in two cases brought by the Association for Consumer Information (VKI) under the Unfair Competition Act (UWG) that the term "CO2-neutral" was misleadingly used in the contested advertisements (by a brewery and an airline). This was because essential circumstances were omitted from the advertisements in question.
Similarly, the German Federal Court of Justice (BGH) ruled in a case brought by the Centre for Combatting Unfair Competition against a German confectionery manufacturer. The company claimed in an advertisement that it had been producing all products "climate-neutral since 2021." Readers could access information about this alleged climate neutrality via a website link or by scanning a printed QR code.
Only through this additional information did consumers learn that the company's claimed climate neutrality was achieved solely through the purchase of CO2 certificates or by supporting third-party climate projects. The BGH deemed this advertisement misleading and emphasized that "particularly strict requirements apply to environmental advertising." Similar to health-related advertising, it must be extremely precise regarding accuracy, clarity, and unambiguity. According to the BGH, the term "climate-neutral" is ambiguous and could also be understood to mean that "the production of the products itself is already climate-neutral."
The company's clarification via the website or QR code was deemed insufficient. The BGH explicitly demands that complex and not easily comprehensible terms such as "climate neutrality" be communicated clearly and understandably to consumers. The considerations made by the German BGH in this decision largely align with the Austrian OGH's legal reasoning in similar "greenwashing" cases.
Thus, particular caution must also be exercised in Austria when advertising with the term "climate-neutral." It will likely be required that terms used in advertising be clearly explained within the advertisement itself and not solely through "external sources."
