Is eye-catching discount advertising with hidden exclusions prohibited?

Eye-catching advertising with discount campaigns is a popular means of drawing the consumer's attention to specific products. Not infrequently, disillusionment comes with the asterisk reference. However, such a reference does not always suffice to exclude misleading advertising through discount promotion. This has been clarified by the Higher Regional Court (OLG) Nürnberg.

A kitchen retailer advertised on its website with the following statement:

33% AUF ALLE KÜCHEN (1) + GRATIS AEG BACKOFEN (1)

At the bottom of the page there was a footnote with the following text:

Beim Kauf einer frei geplanten Einbauküche bei K. erhalten Sie ab einem Gesamtpreis der Küche von 6.900 € 33 % Rabatt. Dieser Rabatt errechnet sich aus dem Gesamtpreis abzgl. Montagekosten, abzgl. des Kaufpreises für MIELE- und BORA-Geräte sowie dem Material Stein. Zusätzlich erhalten Sie einen AEG Backofen […] ohne Berechnung […]

Following unsuccessful notice of complaint, the kitchen retailer was ordered at first instance to cease this advertising and to pay notice of complaint costs. He appealed against this decision.

Higher Regional Court (OLG) Nürnberg: Discount advertising misleading

With Hinweisbeschluss vom 16.08.2022 – 3 U 747/22 the Higher Regional Court (OLG) Nürnberg has set out in detail the lack of success of the appeal.

The statement "33 % AUF ALLE KÜCHEN (1) + GRATIS AEG BACKOFEN (1)" constitutes eye-catching advertising because it is typographically highlighted in comparison to the other information within the advertising announcement and, by reason of the overall impression, is to be classified as striking attention-grabbing advertising.

The advertising statement is objectively inaccurate because consumers assumed that the kitchen retailer intended to offer all kitchens in their entire kitchen range with a discount by reducing prices. In fact, however, kitchens with a value below €6,900 are excluded from the offer. Moreover, this purchase price can only be achieved without Miele and Bora appliances and without assembly costs. This is not a lack of clarity requiring clarification or a half-truth, but a false statement about an easily verifiable fact. There is no reasonable grounds for this inaccuracy. It would have been possible to include the addition "from a purchase price of €6,900" in the advertisement.

Conclusion

Eye-catching advertising which creates the impression that it completely describes the offer and that everything essential has been said must, as such, be true. If the discount advertising clearly contains an inaccuracy that would have been easy to avoid, an asterisk reference or similar is insufficient to correct any resulting misunderstanding thereby created. In these cases, such an advertisement is misleading within the meaning of competition law.