Judicial assessment of advertising claims for disinfectants – The criterion of ‘skin-friendliness’
According to a ruling by the Federal Court of Justice (BGH, Case No. I ZR 108/22), a manufacturer’s claim that a disinfectant is ‘skin-friendly’ is impermissible. The court held that such a statement is incompatible with the strict requirements of competition law because it misleads the targeted public and violates advertising bans under pharmaceutical law. The following contribution explains which legal standards are paramount when advertising disinfectants and what leeway remains for companies.
Admissibility of health-related claims in connection with biocidal products
Standard of the prohibition on misleading advertising
According to Section 5(1) of the UWG (Act Against Unfair Competition), any commercial practice is inadmissible that contains false statements or statements capable of deception concerning essential characteristics of a product. This particularly includes claims that create expectations about the safety or harmlessness to health of a product that are not objectively justified.
Disinfectants are generally biocidal products whose primary purpose is to eliminate microorganisms, bacteria, and viruses or to prevent their multiplication. This already implies that they must contain ingredients specifically targeting microorganisms. However, these mechanisms of action also carry the potential to trigger physiological reactions on human skin—such as skin irritations or allergic reactions. Professional standards and relevant studies show that even seemingly mild disinfectants can, under certain circumstances, affect the condition of the skin.
Objective understanding by consumers
In the specific case, the BGH affirmed the lower courts: If a disinfectant is advertised as ‘skin-friendly’, consumers understand this to mean that they can expect no adverse effects on their skin. Such a quality promise conveys a degree of gentleness to the skin that, given the product’s active ingredients, cannot be maintained. Without scientifically validated evidence or approval compliant with legal requirements, such a claim cannot be upheld.
In addition, under Article 72(3) of Regulation (EU) No. 528/2012 (BPR), health-related advertising statements for biocidal products and disinfectants are prohibited even if the advertiser subjectively believes the claim to be correct or it is based on individual study results.
Legal limits to product advertising – especially under pharmaceutical and competition law
Distinction from permissible statements
Statements such as ‘skin-friendly’, ‘gentle to the skin’, or ‘free from side effects’ require evidence-based substantiation, which is rarely feasible in practice. Even references to dermatological tests are not sufficient on their own, as they do not adequately inform the public and often lack the methodological generalizability required.
Disclosure obligations and labelling law
The relevant regulations require that advertising for disinfectants clearly distinguishes between the product’s actual, documented properties and positive value statements. Not only competition law, but also the law on biocidal products and the law on advertising medicinal products provide comprehensive consumer protection. Companies must therefore ensure both transparency and scientific substantiation of their claims when labeling and advertising their products.
Significance of the BGH decision for manufacturers and distributors
The judgment highlights the existing restrictions on health-related advertising claims in the field of biocidal products. Manufacturers and distributors of disinfectants are required to comply with the applicable advertising restrictions to avoid the risk of costly injunctive proceedings and warnings. Detailed documentation of product compatibility and, if necessary, regulatory approval of claims are as essential as continuous review of advertising statements in light of new regulatory requirements.
Manufacturers and advertisers can infer from the BGH decision that a transparent, scientifically grounded marketing approach is indispensable in the sensitive area of biocidal products.
For companies engaged in product advertising for disinfectants or similar biocidal products, careful legal review of the advertising statements used is advisable. For questions regarding permissible claims and advertising measures, the lawyers at MTR Legal are available for individual assessment.
