No textile labelling without ordering option

Under the textile labelling regulation of the European Union, consumers must be informed about the textile fibre composition of clothing and other textiles. The question sometimes arises as to when and where this information must be provided. According to a recent decision, the Higher Regional Court of Düsseldorf (OLG Düsseldorf) takes the view that this must in any event not yet be done in an advertising brochure without ordering option.

According to the textile labelling regulation, clothing must be provided with a clearly visible and easily legible description of the textile fibre composition. According to the allegations, this was not the case in the disputed brochure. The publisher of the advertising brochure is a textile retail chain with approximately 60 stores in Germany and an online shop. In the disputed brochure, textiles were advertised with a price, but partly without information regarding the textile composition. A trade association filed suit against this, arguing that under the textile labelling regulation, the missing information regarding the textile fibre composition would constitute conduct contrary to competition law as well as misleading consumers through omission. After the Regional Court (LG Düsseldorf) dismissed the action (Az. 12 O 33/13), the plaintiff association appealed to the Higher Regional Court (OLG Düsseldorf) and pursued its claim further.

The court's decision

By judgment of 04.12.2014 (Az. I-2 U 28/14), the Higher Regional Court of Düsseldorf (OLG Düsseldorf) upheld the decision of the first instance court. According to the court's reasoning, the main purpose of the statutory labelling and marking requirements is to inform consumers when or before purchasing textiles about which textile fibres a product is made of. The statute names as the point in time for providing this information the "making available on the market". This is every "supply of a product for distribution, consumption or use on the internal market in the course of a commercial activity". According to the court's view, such making available on the market is (not yet) present when goods are offered for sale in catalogues or on the Internet, because this alone does not yet lead to the actual taking delivery of the textile goods by the buyer or at least to a binding declaration directed thereto (e.g. an order). Since the textile labelling regulation merely speaks of the information having to be provided "before the purchase", any point in time that precedes the binding expression of a specific purchasing intention is suitable for this purpose. For this reason, according to the court's reasoning, it is sufficient if the textile composition of the goods is disclosed at any time before the buyer's binding declaration. Since no ordering option is provided in the disputed brochure, later points in time for fulfilling the information obligation would also be possible, for example in the physical shop on the goods or in the online shop in the context of the product description.

Conclusion

The case would be assessed differently if an order form had been enclosed with the brochure. Its transmission would effect a binding order by the customer, which is why it would then be too late for proper textile labelling. The same would presumably also apply to the possibility of placing an order by telephone. Furthermore, it is to be welcomed that retailers are free to choose the point in time for fulfilling their information obligations and do not always have to inform consumers about the textile composition on every occasion. This would possibly constitute a considerable restriction on retailers' freedom of advertising, which ultimately benefits no one.