A discount "on all items" must really apply to everything!

An advertisement stating "15% discount on all items" is unlawful if in fact some items are excluded from the promotion and the notice of this exclusion does not appear in immediate spatial proximity to the advertising statement. This was the ruling of the Higher Regional Court Hamm (OLG Hamm).

A competition association sued a building materials chain for an injunction against an advertising statement. The building materials chain had previously advertised in a newspaper with the statement "15% discount on all items*".

Using the asterisk symbol "*", the company excluded some product categories from the discount promotion in the footer of a brochure enclosed with the newspaper. In the view of the association, the conditions for the use of price reductions must be easily accessible as well as clear and unambiguous. This was lacking because the goods excluded from the discount offer did not participate in the eye-catching nature of the discount announcement.

OLG Hamm: Discount promotion was anticompetitive

The court (OLG Hamm, Urteil v. 22.03.2018, Az. 4 U 4/18) found that the advertisement made no specific information about the goods excluded from the promotion and was therefore unlawful. Already the Federal Court of Justice (BGH) had affirmed a violation of competition law in the case of price advertising in which a discount of "19% value added tax" was promised to the consumer, due to the exclusion of some offers.

The consumer requires the information about the goods excluded from the price advertising in order to make an informed business decision. In this regard, the withholding of information about a comprehensive exclusion of product categories is capable of inducing the consumer to take actions which he would not have taken had he been aware of all the circumstances of the promotion.

The judges found that merely enclosing the brochure does not establish a sufficiently direct spatial connection between the advertising statement and the disclosure of exceptions to the discount promotion. The promotion of the discount took place in the newspaper, whilst the information about the goods excluded from the promotion appeared in a brochure which was enclosed with the newspaper. Adding to this difficulty is the fact that it could not be proven that the brochure was actually enclosed with every newspaper.

Conclusion

In cases where an advertising statement that is prominently featured is not objectively incorrect, but nonetheless does not name all the terms of the offer, an asterisk reference to the actual terms can provide clarification. It is important that the clarifying notices are in immediate spatial proximity to the advertising statement in order to provide the consumer with sufficient information prior to his business decision.