Impermissible exclusive claim "only product X is hygienic..."

A popular marketing tool is advertising with a leading or exclusive claim. But where are the legal limits of what is permissible? The Regional Court (LG) Köln had to assess whether the statement "only product X is hygienic..." constitutes a permissible exclusive claim.

The Competition Authority (Wettbewerbszentrale) took action against a manufacturer of so-called jet hand dryers. The manufacturer's product range includes, amongst other things, various hand dryers. These are so-called jet hand dryers, which remove residual moisture from the hands after washing without heating the air by means of a powerful fan. These are intended for use in public spaces with corresponding public traffic and are used predominantly in such usage situations.

There are various studies/investigations that attest to these products a hygienic effectiveness that is equivalent to or superior to that of other hand drying methods. However, there are also studies/investigations that cast doubt on the hygienic properties of jet hand dryers such as the manufacturer's products.

The legal dispute concerned, amongst other things, an advertising statement by the manufacturer:

"Only X is hygienic, economical and ecological. That does not apply to paper."

The Competition Authority saw in this a misleading exclusive claim regarding the hygiene of the manufacturer's products. The statement was inaccurate in its generality and absoluteness. Hand drying with paper towels is also hygienic. From a hygienic perspective, the defendant's products had no significant advantage.

Following an unsuccessful cease-and-desist letter, the Competition Authority sued the manufacturer before the Regional Court (LG) Köln, inter alia, for an injunction.

Court's decision on the exclusive claim

The Regional Court (LG) Köln (Urt. v. 11.03.2020, Az. 84 O 204/19) established the impermissibility of the exclusive claim "Only X is hygienic, economical and ecological. That does not apply to paper."

Significant portions of the relevant public would not understand the advertising statement cumulatively in combination, but rather in the sense of "both and". The exclusive claim therefore also referred in isolation to the statement "Only X is hygienic...".

In principle, a leading or exclusive claim is permissible if it is true. However, the statement that "only" the manufacturer's product is "hygienic" does not constitute an objectively correct assertion. As the court held, all studies showed that the hygiene of single-use paper towels on the one hand and air dryers such as the manufacturer's product on the other hand was rather discussed controversially.

Thus, the false exclusive claim used by the manufacturer was misleading and therefore to be qualified as a violation ofcompetition law.

Conclusion

When advertising with exclusive claims, caution is always required. In principle, a leading or exclusive claim is only permissible if the assertion is objectively correct – that is, true.