Manufacturer information: dealer's duty to check!

The Product Safety Act (ProdSG) provides that dealers must contribute to ensuring that only safe consumer products are placed on the market. The Federal Court of Justice (BGH) had to rule on the question of whether this also includes dealers' obligation to check whether the product is provided with manufacturer information.

A dealer sold decorative contact lenses without optical power via his online shop. The contact lenses were manufactured by another company. Information about the manufacturer, such as the name and address, was not found on the product or its packaging.

A competitor of the dealer held the view that the dealer should not have placed the contact lenses on the market without indicating the manufacturer and accused him of unfair competition.

The claimed injunction initially had no success.

The Federal Court of Justice (BGH) ruling on dealers' duties to check manufacturer information

The appeal, however, led to the dealer being condemned.

The Federal Court of Justice (BGH) ruled in judgment of 12.01.2017 – Az. I ZR 258/15 to the effect that the obligation to provide the name and contact address falls on the manufacturer, its authorised representative and the importer, but not on the dealer.

According to the ProdSG, the dealer must, however, contribute to ensuring that only safe consumer products are placed on the market. In the opinion of the judges, manufacturer information is part of safety requirements. This is because these details serve the purpose of enabling manufacturers to take appropriate measures to prevent any dangers posed by the products, including where necessary withdrawal from the market, appropriate and effective warning of consumers and recall from consumers.

The dealer should have known that the contact lenses were not safe within the meaning of the ProdSG because manufacturer information was missing.

Conclusion

While it is a manufacturer's obligation to display its name and address on the consumer product or on its packaging, the dealer who places the product on the market must ensure that such information is present. If manufacturer information is missing, the dealer must not place the product on the market.