Key Considerations of the Federal Court of Justice on Deceptive Packaging Sizes
On May 30, 2024, the Federal Court of Justice (BGH) once again addressed the question in case I ZR 43/23 under which conditions a so-called “slack fill” packaging qualifies as unlawful deception within the meaning of competition law. The assessment focuses on the competition law relevance of packaging whose actual content is conspicuously disproportionate to the package size. The ruling clarifies the requirements for product design and simultaneously raises further questions for manufacturers, distributors, and retailers.
The Legal Framework: Deception in Unfair Competition Law
Legal Codification in § 5 UWG
Section 5 UWG (Act Against Unfair Competition) makes it clear that commercial practices that are likely to deceive consumers about essential characteristics of a product are prohibited. The legislator explicitly recognizes the external appearance of goods, especially their packaging, as a potential instrument of deception. The term “slack fill” colloquially describes packages whose capacity is disproportionately large compared to the actual product contained.
Substantive Requirements for Information Transmission
The decisive criterion is whether the external design of the packaging—particularly its size—creates a misleading impression of the product quantity for the consumer. Deception occurs if the behavior of the average, adequately informed, and attentive recipient in the given situation can be influenced, thereby causing an erroneous commercial decision.
Systematic Classification in Light of Supreme Court Jurisprudence
Content and Scope of the BGH Ruling of May 30, 2024
In the present case, a competition association challenged that the contested product packaging contained roughly half the volume of the package capacity. The defendant producer referred to technical and functional reasons for the size of the enclosure.
The BGH ruled that technically motivated package sizes are not automatically exempt from the risk of deception. The decisive factor remains whether the packaging obscures the actual content and thereby fosters a false impression. Each specific case must be assessed based on consumer expectations. A technically necessary package volume can justify the size in individual cases but is not per se sufficient to exclude the assumption of a competition law violation due to deception.
Relation to Statutory Information Obligations
The BGH emphasizes that the presence of statutory mandatory information—such as the exact fill quantity indicated on the package front—does not necessarily exclude deception. The actual product presentation remains decisive for consumer expectations since, according to experience, many consumers do not actively pay attention to the stated fill quantity but base their purchase decision on the external appearance.
Implications for Corporate Practice and Compliance
Significance for Manufacturers and Retailers
The decision clearly illustrates that mere compliance with product-related labeling obligations does not always protect against claims under competition law. Companies are obligated to carefully design the external appearance and proportions of packaging to avoid creating misleading notions about the product content. Nevertheless, the question of object-specific differentiating factors—such as technical necessities in the manufacturing process—requires comprehensive evaluation and is not conclusively answered by the ruling.
Further Competition Law Issues
For companies operating with novel packaging concepts or innovative presentations, the scope for design remains narrowly defined. Current jurisprudence makes clear that any change to the familiar external appearance increases the risk of warnings from competing market participants due to unlawful deception. It is therefore advisable to maintain consistent and documented internal processes for reviewing product packaging and marketing measures.
Legal Certainty Amid Ongoing Changes in Legal Standards
The BGH ruling of May 30, 2024, establishes important guidelines in product responsibility and consumer protection without losing sight of individual case specifics. The competition law assessment of deceptive packaging sizes will continue to be shaped by case-by-case balancing, which must consider both technical requirements and the interplay with legitimate consumer expectations. Beyond the concrete case, such fundamental decisions provide starting points for developing internal compliance structures and risk-oriented product design.
For companies and investors operating in this demanding regulatory environment, a needs-based assessment of legal risks is indispensable. For more complex issues related to deceptive packaging, product presentation, or sales-related questions in competition law, the specialized teams at MTR Legal Attorneys operate nationally and internationally. For in-depth legal concerns, readers can find further information and contact details for individual legal advice in competition law.
