Everyone knows it. You open a product and then wonder why it feels like it is only half full. The phenomenon known as "shrinkflation" was recently the subject of a BGH ruling.
The BGH upheld the corresponding action for injunctive relief brought by a consumer protection association. The association complained about a men's washing gel whose tube was depicted online with a filling quantity of 100 ml on the lid. The term "filling quantity" refers to the actual filling quantity of the packaging, not the possible filling quantity. The tube was transparent at the bottom and silver-colored at the top. However, it was only filled up to the beginning of the upper (silver) area. It was found that only two thirds of the tubes examined were filled. The consumer protection association objected to the fact that the silver coloring of the upper area suggested that the tube was almost completely filled.
The BGH ruled in favor of the consumer protection association.
The background to the ruling is the protective purpose of competition law, according to which the consumer is to be protected from misconceptions about the relative filling quantity, i.e. the relationship between the actual and the possible filling quantity of the specific packaging.
According to case law, the average informed and reasonable consumer's perception of the content based on the packaging design must be taken into account and whether this perception deviates from the actual content of the packaging. A deviation is only acceptable if it is legally relevant or necessary for technical or economic reasons. A legally significant deviation is generally no longer present if the filling quantity accounts for less than 70% of the packaging volume.
However, it should also be noted that consumers do not always expect the smallest possible packaging, as it should at least be easy to handle. At the same time, however, today's consumers do not expect packaging that is far too large, for reasons of environmental protection. After all, environmental protection is also partly required by law. The consumer therefore also expects packaging that conserves resources.
In the case of an everyday product, an appropriate ratio between packaging and filling quantity can be said to exist if the packaging is significantly more than two thirds full.
However, the packaging of the wash gel in dispute was only two thirds full. There was also no indication of the filling quantity that could have protected the consumer from being deceived. However, the mere indication of the filling quantity is not sufficient as an indication anyway, as experience shows that a consumer does not pay attention to such an indication or cannot classify it correctly. The transition from the transparent area to the silver-colored area was also not sufficient for the judges. This was included as a design feature. Rather, it would have required a clear filling line that would have had to be clearly differentiated from the rest of the packaging.
However, it is irrelevant for the BGH whether the product is only sold online or also in stores, because according to the BGH, this purpose of protection under competition law is affected regardless of the type of distribution.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
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