OLG Nuremberg specifies requirements for price reduction advertising with “best price” claims
Advertising with so-called “best prices” is an extremely sensitive area in competition law that presents companies with a variety of challenges. The Higher Regional Court (OLG) of Nuremberg, in its judgment of 2.10.2024 (Ref. 3 U 4602/24), has set new standards for the transparency obligations when using a “best price” promise and has thus specified the requirements for the design of price advertising in light of the law against unfair competition.
Background of the decision
In the case at hand, a company advertised on its online shop with the indication of a “best price” for certain products without disclosing which reference price this statement referred to or over what period the advertised advantage existed. A competitor considered this to be misleading consumers about the extent and actual substance of the advertised savings and asserted competition law claims.
General requirements for price advertising
The court emphasized that misleading price comparisons are inadmissible under Section 5 (1) of the German Unfair Competition Act (UWG) if they are likely to influence the economic decision-making of an average consumer. The decisive factor is whether the advertising claim provides the consumer with a clear and accurate understanding of the scope and basis of the price reduction or whether this is left unclear.
Reference to the reference price
According to current case law, it must be clear to the consumer which comparison price the “best price” promise refers to. If the original sale price is clearly set apart from promotional prices, the advertisement requires a comprehensible explanation as to whether the promoted “best price” refers, for example, to a price history from the shop itself or to competitors’ offers.
Temporal component and transparency requirement
The OLG Nuremberg emphasizes that the timing and duration of a price reduction are also relevant to the decision. If a product is offered for only a short period at a certain (higher) price and is then advertised as a “best price”, this may give consumers a false impression. Therefore, the price development must be presented transparently, for example by indicating when and for how long the higher reference price was valid.
Implications of the decision in competition law
The decision strengthens consumer protection and clarifies the standards for the admissibility of “best price” advertising in online commerce. Companies advertising price advantages are required to communicate all parameters of the price reduction openly. Otherwise, there may be a warning letter for anti-competitive behavior.
Risks of non-transparency
Ambiguous, sparse, or misleadingly worded advertising claims can result not only in competition law claims for injunctions but also claims for damages and the initiation of regulatory procedures. The decision underscores the responsibility of companies to assess the economic significance of their advertising statements with the necessary care.
Price advertising in the context of the Price Indication Ordinance (PAngV)
In light of the PAngV, it must always be ensured that advertised prices are stated clearly and comparably for the consumer. When presenting price reductions, the ordinance requires precise information on final prices and, where relevant, on the lowest price in the last 30 days (§ 11 PAngV).
Conclusion and outlook
With its judgment, the OLG Nuremberg provides another building block for interpreting the prohibition of misleading advertising in connection with price advertising and clarifies unresolved delimitation issues concerning the transparency obligations when using “best price” statements. Companies advertising their offers in this way must now take even greater care not to leave consumers uncertain about the base values or the duration of the price reduction.
The associated legal challenges affect not only questions of market fairness, but may also entail issues of corporate liability and, in some cases, tax implications.
For companies, investors, and executives who operate in the market with advertising claims about price advantages or other sensitive information, it is advisable to closely monitor recent developments in competition law and, if necessary, obtain legal support from experienced lawyers with in-depth market knowledge. The attorneys at MTR Legal provide clients with comprehensive advice on regulatory developments in commercial and competition law in order to minimize risks and realize market opportunities in compliance with the law.
