Concept and Legal Classification of Advertising Claims
Advertising claims are pieces of information, statements, or indications used in the course of business activities in connection with promoting goods or services. They are a central element of advertising communication and are subject to comprehensive legal requirements and restrictions in Germany and the European Union. The regulation aims to protect consumers from misleading, unfair, or unverifiable statements, as well as to ensure undistorted competition between companies.
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Legal Foundations of Advertising Claims
Act Against Unfair Competition (UWG)
The Act Against Unfair Competition (UWG) forms the central legal basis for advertising claims in Germany. According to Section 5 UWG, statements in advertising are inadmissible if they are misleading or if essential information is withheld. The provisions of the UWG concern, among other things:
- The accuracy and clarity of advertising claims
- The verifiability of advertising statements
- The prohibition of deception regarding essential characteristics of products or services
Moreover, the UWG implements European requirements from Directive 2005/29/EC on unfair commercial practices, so that similar rules also apply in other EU member states.
Product-Specific Information Requirements and Special Laws
Advertising claims may be subject to further legal restrictions, particularly through product-specific regulations, such as:
- Food Law (LMIV): The Food Information Regulation (EU) No. 1169/2011 sets out specific labeling and information obligations for advertising statements about food.
- Medicinal Products Advertising Act (HWG): Advertising of medicinal products and medical devices is subject to specific requirements prohibiting misleading or unauthorized efficacy claims.
- Price Indication Ordinance (PAngV): When displaying prices in advertising, detailed regulations regarding the statement of final prices, base prices, and additional costs must be observed.
- Telemedia Act (TMG) and Consumer Rights Directive: In the field of e-commerce, specific information requirements apply, for example under the TMG and the regulations on the right of withdrawal.
European and International Provisions
In addition to national law, European directives and regulations, as well as international self-regulation standards (e.g., ICC Advertising Code), shape the legal requirements for advertising claims.
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Types and Forms of Advertising Claims
Advertising claims can take various forms, including in particular:
Statements of Fact
Statements about objectively verifiable circumstances—such as product origin, ingredients, or prices—are considered statements of fact and must be demonstrably correct.
Value Judgments and Superlatives
Advertising claims in the form of subjective opinions or value judgments (e.g., “especially tasty”, “high quality”) allow for greater creative freedom but may not create the impression of stating facts if they are, in fact, mere opinions.
Covert Advertising and Disclosure Obligations
Advertising statements that are not recognizable as such (so-called surreptitious advertising) are prohibited under Section 5a (6) UWG. Influencer marketing and native advertising must also be labeled as advertising if a commercial purpose is present.
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Misleading by Advertising Claims
Requirements for Misleading Practices
A statement is misleading if it is likely to give the target market groups incorrect notions about essential product characteristics, e.g., price, quality, origin, environmental friendliness, or the existence of certifications.
Misleading Claims According to Section 5 UWG
According to Section 5 (1) UWG, statements regarding the following points are particularly misleading if they are not truthful:
- Product availability
- Attributes and characteristics
- Pricing and price benefits
- Place of manufacture or origin
- Comparison with competing products
Prohibited Omissions and Transparency Requirements
According to Section 5a UWG, it is also prohibited to withhold essential information in advertising where knowledge of such information is crucial for the consumer’s transactional decision.
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Verifiability and Burden of Proof in Advertising Claims
Any entrepreneur making advertising statements generally bears the burden of proof for their accuracy (so-called ‘objective accuracy’). This applies especially to health-related advertising or special quality claims (e.g., “medically tested”, “environmentally friendly”). Evidence must be available at the time of the advertisement and must be producible upon request in the event of a dispute.
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Consequences and Enforcement in Case of Violations
Cease-and-Desist and Elimination
In the case of inadmissible advertising claims, competitors or entitled associations may assert claims for injunctive relief. If advertising has already taken place, there are often also claims for removal and retraction against the advertiser.
Damages and Disgorgement of Profits
Consumers or competitors may, under certain conditions, have a claim for damages or disgorgement of profits (Section 10 UWG) against those who have used unlawful or misleading advertising claims.
Fines and Regulatory Measures
Certain violations, particularly in the field of food, pharmaceutical, or environmental law, may be sanctioned with regulatory requirements and fines.
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Special Requirements in Selected Industries
Food and Beverages
Especially strict requirements apply to advertising claims in the food sector, such as for health claims, ingredients, origin information, and nutritional values. Infringements are rigorously prosecuted by market surveillance authorities.
Financial Services and Insurance
In the financial sector, advertising claims are subject to strict information and risk disclosure requirements to prevent misguided incentives and consumer deception.
Environmental and Sustainability Claims (Green Claims)
Environmental advertising claims are increasingly scrutinized due to concerns about greenwashing. Statements such as “climate neutral” or “environmentally friendly” must be transparent, verifiable, and substantiated.
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Summary and Outlook
Advertising claims are a central tool of commercial communication and subject to a multitude of legal requirements. Legally compliant structuring of advertising claims is essential to protect both consumer interests and fair competition, as well as to avoid legal risks. Regulation is constantly evolving, especially through European legislative initiatives and increased scrutiny of digital advertising formats. Companies should continually stay informed on changes and regularly review their advertising statements for legal compliance.
Frequently Asked Questions
When is an advertising statement considered misleading?
An advertising statement is considered misleading under German and European law if it contains or withholds false or potentially deceptive information about essential features of a product or service. Essential features include, among others, the type, composition, quantity, attributes, possible uses, origin, or the results that may be expected from its use. According to Section 5 of the Act Against Unfair Competition (UWG), there is also deception if the overall impression created by the advertisement—particularly through design measures—results in a false impression for the relevant public. Exaggerations, omissions, or the use of vague terms can also be deemed misleading if they affect consumers’ purchasing decisions. The assessment is always made with regard to the actual expectations of an average informed, attentive, and circumspect consumer. Misleading advertising claims are anti-competitive and can entail injunctive relief and claims for damages.
What are the requirements for price information in advertising?
Price information in advertising is governed by the Price Indication Ordinance (PAngV). In principle, the final price must be stated for all consumer offers, i.e., the price including all taxes and other price components. Any applicable shipping costs must also be stated explicitly or at least be clearly specified or linked. If goods are offered in different quantities, the base price (for example, per liter or kilogram) must be provided to ensure price comparability. Special offers such as discounts, special promotions, or vouchers are subject to additional transparency requirements regarding their validity period, redemption conditions, and any restrictions. Violations of the PAngV constitute an administrative offense and can be challenged by competitors as well as consumer protection organizations.
What legal requirements apply to so-called “test winner” or “Stiftung Warentest” advertising?
Advertising with test results—such as claiming to be a “test winner” or sharing ratings from institutions like Stiftung Warentest or Öko-Test—is generally permissible from a legal perspective but subject to strict requirements. The advertised test source must always be clearly and easily identifiable, in particular the exact name of the test and the publication date. The advertising statement may not suggest that the tested product reflects current market conditions if the test is already outdated. If only certain positive test results are highlighted, these must be presented in the context of the overall test; emphasizing individual aspects or omitting important evaluation criteria can be misleading. Furthermore, test results may not be distorted or presented in a truncated form. A recent judgment by the German Federal Court of Justice (BGH) makes clear that for the average consumer, the advertising claim must be clearly understandable and verifiable for its truthfulness.
What are the information obligations for environmental advertising claims (“environmental advertising”)?
Environmental advertising claims—such as “climate neutral”, “environmentally friendly”, “biodegradable”, or similar—are subject to special transparency and substantiation obligations. As a rule, all environmental advertising must, pursuant to Section 5 UWG and relevant EU regulations, be substantiated by measurable and objectively verifiable facts. Blanket statements (e.g., “green”, “sustainable”) without a traceable basis are considered misleading unless specific explanations are provided. Companies must prove that the terms used correspond to the actual ecological properties of the product, for example, through studies, certificates, or independent tests. Further EU-level regulations (“Green Claims Directive”) are currently planned, likely further tightening the verification requirements and standards for environmental advertising. If companies do not fulfill their information obligations, they risk competition law measures and regulatory sanctions.
To what extent must restrictions and conditions of a promotional campaign be disclosed?
All essential restrictions and conditions applicable to a promotional campaign, discount, or voucher offer must be communicated clearly and transparently so that an average consumer can easily recognize and understand them. According to Section 4 No. 4 UWG, the requirement for transparency stipulates that, for example, minimum order values, validity periods, limited quantities, or exceptions to the redemption of a discount must be clearly stated in the advertisement itself—not only in the fine print or during the order process. Hidden or hard-to-find notices (e.g., footnotes at the bottom of the page or only appearing during checkout) are not sufficient and may be considered misleading. Violations carry the risk of warning letters and, under certain circumstances, nullity of the promotion towards consumers.
Do advertising statements made in comparison with competitors (“comparative advertising”) have to comply with special rules?
Comparative advertising is only permissible under Section 6 UWG if it is objective, factual, and truthful, and relates to verifiable and relevant features or prices of the respective products or services. The comparative presentation must not cause confusion between the companies or their brands, disparage or denigrate a competitor, or constitute imitation of products or trademarks. Statements must be clear, transparent, and comprehensible for consumers. If a competitor is named explicitly or implicitly, a heightened duty of care applies; inadmissible or unobjective comparisons lead to claims for injunctive relief and damages. The European Directive 2006/114/EC is also the Union law basis for these rules.
Are advertising statements using “guaranteed” or with guarantees subject to special conditions?
Advertising statements promoting product features as “guaranteed” or “with guarantee” are subject to the provisions of Section 477 of the German Civil Code (BGB). This involves a voluntary commitment by the business beyond the statutory warranty to ensure certain product features or a specific duration. The advertisement must clearly and unequivocally communicate who grants the guarantee, to what content and duration it refers, what requirements and procedures apply in the event of a claim, and that consumers’ statutory rights are not excluded or restricted by the guarantee. This information must be provided to the consumer at the latest when the contract is concluded, either in writing or in another durable form. If these details are lacking, the advertising statements are contestable and anti-competitive.
