CJEU ruling: ZBUW vs dm-drogerie markt on biocide advertising

The drugstore chain dm-drogerie markt GmbH & Co. KG (‘dm’) commercialized a disinfectant product advertised as: 'ecological universal broad-spectrum disinfectant', 'skin friendly' and 'organic'.

The German Association for Protection against Unfair Competition brought an action before the German courts as it considered that such advertising was unfair and contrary to the provisions established in Article 72(3) of Regulation No 528/2012, which states that 'Advertisements for biocidal products shall not refer to the product in a manner which is misleading in respect of the risks from the product to human health, animal health or the environment or its efficacy. In any case, the advertising of a biocidal product shall not mention “low-risk biocidal product”, “non-toxic”, “harmless”, “natural”, “environmentally friendly”, “animal friendly” or any similar indication'.

The Federal Court of Justice in Germany referred a question to the Court of Justice of the EU in order to confirm whether the statement ‘any similar indication’ includes any indication that, like those expressly cited in Article 72 (3) of Regulation No 528/2012, downplays the risk from a biocidal product to health or the environment or its efficacy, without being general in nature.

In its ruling, the Court of Justice of the EU has declared the following

• It follows from Article 72 (3) of Regulation No 528/2012 that the indications contained therein are inconsistent, in their very wording, with the existence of the risks which biocidal products pose to humans, animals and the environment, due to their intrinsic properties and associated use patterns.
• Article 72 (3) of Regulation No 528/2012 contains no indication that the prohibition is limited only to the use of blanket statements in the advertising of biocidal products.
• The advertising of biocidal products must allow consumers to obtain a sufficient level of information on the risks of using those products so as not to underestimate those risks and to make an informed decision when buying such products.
• Article 72(3) of Regulation No 528/2012 establishes general rules on the advertising of biocidal products which are based on consumers’ reactions so far as concerns the perception of the risks from those products to human health, animal health or the environment and which apply irrespective of the risks and the actual properties of those products.
• With respect to the indication ‘skin friendly’ such an indication which has, prima facie, a positive connotation that avoids suggesting any risk, may qualify the harmful side effects of that product or even imply that that product could be beneficial for skin. This indication is misleading within the meaning of Article 72(3) of Regulation No 528/2012, which justifies the prohibition of its use in the advertising of the product concerned.
• Article 72(3) of Regulation No 528/2012 must be interpreted as meaning that the concept of ‘any similar indication’ includes any indication in the advertising for biocidal products which refers to those products in a manner which is misleading in respect of the risks from the product to human health, animal health or the environment or their efficacy, by downplaying those risks or even denying their existence, without necessarily being general in nature.