Judgment of the Court of Justice of the EU C 296/23 of 20 June 2024: the provisions on misleading advertising included in Article 72 of EU Regulation No 528/2012 on biocides must be interpreted broadly
In its judgment C 296/23 of 20 June 2024, the Court of Justice of the EU (ECJ) ruled on the scope of misleading advertising provided for in Article 72 of EU Regulation 528/2012 on biocides. The CJEU ruled that the terms “any other similar indication” included in Article 72, although preceded by specific prohibited terms, must be interpreted broadly and include any indication, whether general or particular, which refers to these products in a way likely to mislead the user, by minimising the said risks or even denying their existence.
The German drugstore chain dm-drogerie markt GmbH & Co KG (dm) offered the disinfectant “BioLYTHE” for sale. The product was described as a “universal broad-spectrum ecological disinfectant”, “disinfects skin, hands and surfaces”, “effective against SARS-Corona” and “skin-friendly – organic – alcohol-free”.
The German Anti-Unfair Competition Association considered this to be unfair advertising and brought an action before the German courts, seeking to compel dm to cease designating or marketing the product in question as a “universal broad-spectrum ecological disinfectant” and/or “skin-friendly” and/or “organic”.
The association’s action was based on its own interpretation of Article 72 of EU Regulation 528/2012 on biocides, according to which “Advertisements for biocidal products shall not refer to the product in a way likely to mislead the user as to the risks it may pose to human health, animal health or the environment or as to its efficacy. In any event, advertising for a biocidal product shall not include the terms ‘low-risk biocidal product’, ‘non-toxic’, ‘not harmful to health’, ‘natural’, ‘environment-friendly’, ‘animal-friendly’ or any other similar indication”.
Wishing to know whether the expression “any other similar indication” includes any indication which, like the indications expressly referred to in the regulation, minimises the risk which a biocidal product may pose to health or to the environment or as regards its effectiveness, without however being of a general nature, the German Federal Court of Justice, seised specifically in relation to the use of the indication “skin-friendly”, asked the Court of the EU how, in its view, those terms “any other similar indication” should be interpreted.
The Court found that the regulation did not contain any indication that the prohibition on the use in advertising of biocidal products was limited solely to general indications. Thus, according to the Court, both a general and a specific indication may manifestly mislead the user as to the risks associated with the use of biocidal products by minimising the risks which those biocidal products may pose to human health, animal health or the environment.
Therefore, the phrase “any other similar indication” must, according to the ECJ, include any indication in the advertising of biocidal products, whether general or specific, which refers to those products in a way likely to mislead the user, by minimising those risks or even denying their existence. As regards the wording ‘skin-friendly’, the Court noted that such a wording has a positive connotation which does not suggest any risk whatsoever, so that it is liable not only to relativise the harmful side-effects of the product concerned but also to imply that it might even be beneficial to the skin. In the Court’s view, such a statement is misleading and justifies a ban on its use in the advertising of the biocidal product in question.
