At the moment, many companies are forced to change their marketing projects which have been planned well in advance at short notice. When adapting their advertising to the current circumstances, the coronavirus is frequently mentioned. Companies have to be very careful in cases, however, in which products are advertised with misleading promises. For instance, this is currently the case with face masks, (on this topic, read also the article by Markus von Fuchs, LL.M. on selling self-manufactured respirators), or vitamins, some of which claim effective protection against viruses.
Judicial Background: According to the jurisdiction of the Federal Court of Justice in Germany (BGH), particularly strict requirements apply to the accuracy, unambiguity, and clarity of statements where advertising uses health-related claims (BGH I ZR 318/98). Experience shows that health-related statements are enjoying great effectiveness in advertising in general, as personal health is highly important to consumers. In the Court’s view, advertising claims in this field are therefore only admissible when based on sound scientific findings (BGH GRUR 1971, 153). Otherwise they constitute “misleading commercial activity” within the meaning of the Act against Unfair Competition, consequently rendering them inadmissible. The simple fact that statements can potentially induce consumers or other market participants to make a business decision that they would not have otherwise made is sufficient to consider a certain advertisement to be inadmissible.
It is also prohibited to be “playing” with the consumers’ fear of the virus in advertising, thus exploiting their concerns regarding a potential illness in order to cause consumers or other market participants to make a purchase decision.
Mandatory legal requirements to be observed in health-related advertising are also found in the Act on Advertising in the Field of Medicine (HWG) and in the Food, Consumer Goods and Feed Code (LFGB).
In light of recent events, the German Institution of the Economy for Fair Competition warns against using any such statements in advertising campaigns. For instance, it considers the advertising statements “Corona infection: How to protect ourselves with vitality mushrooms” and “Pills against viruses” inadmissible (https://www.wettbewerbszentrale.de/de/presse/pressemitteilungen/_pressemitteilung/?id=363). Additionally, advertisements not expressly mentioning the coronavirus but unmistakably referring to it, may also constitute serious breaches of competition law if they create the impression that the advertised products might be used to effectively prevent a virus infection.
Practical advice: Against the background of the tense financial situation that numerous companies are experiencing in times of the corona crisis, it is advisable to thoroughly assess any planned marketing projects that directly or indirectly refer to the virus for their legal admissibility in order to minimize the risk of unnecessary costs due to potential breaches of competition law. A legal review of your upcoming marketing projects may be requested at any time, also at short notice.
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Status: April 6, 2020