Price difference between online and offline misleading?

Is a price difference between online and offline offers from a retailer misleading? How should price advertising in a prospectus be understood? The Regional Court (LG) Amberg has ruled on a discounter's prospectus advertising from a competition law perspective.

A discounter operating both a physical store and an online shop was issued a cease-and-desist notice by the Wettbewerbszentrale (Competition Center). In its weekly prospectus, the discounter advertised a torch lantern for €9.99. The prospectus advertising included the notice "also online". However, in the associated online shop, the torch lantern was offered for €14.99. From the perspective of the Wettbewerbszentrale, this advertising contained acompetition law misleading element. The Wettbewerbszentrale therefore issued a cease-and-desist notice to the retailer.

Price difference between online and offline

The LG Amberg (Urteil vom 09.12.2019, Az. 41 HK O 897/19) ruled that the discounter must cease the advertising as it had been misleading.

The reference in the advertising prospectus to "also online" conveyed to the consumer the impression that the torch lantern could have been purchased online at the identical price. Since this was not the case, the advertising was misleading.

The advertising was namely capable of influencing a consumer's purchasing decision. It was no objection to the misleading nature that the online price had not been determined by the discounter itself. What was being objected to was not the

design of the online price, but the discounter's advertising.

The reference "also online" could thus induce consumers to refrain from making a purchase at the physical store (initially) and instead turn to the online portal. This could result in the consumer purchasing the torch lantern online at the higher price, even if the higher online price became apparent before the actual completion of the purchase.

The disputed advertising measure by the discounter was therefore misleading and contrary to competition law, so that the Wettbewerbszentrale was entitled to an injunction against these unfair commercial practices, as the court ruled.

Conclusion

Even with prospectus advertising, care must be taken. If a discounter advertises the sale of goods in a prospectus with the reference "also online", the consumer expects that these goods can also be ordered from the online shop mentioned in the advertising at the same price. However, if a higher price is charged online than in the physical store, this is impermissible.