Fraudulent representation of false filling quantity despite multiple quantity specifications?

The Higher Regional Court (OLG) Karlsruhe had to decide in the second instance whether the packaging of a fresh cheese product deceived consumers because of its packaging size regarding the quantity of the packaging contents, even though the manufacturer had provided an accurate quantity specification on the packaging.

The Central Authority for Combating Unfair Competition issued a warning to a fresh cheese manufacturer for breach of competition law and demanded the discontinuation of the marketing and sale of a product which, in the view of the competition authority, had an imperceptible disproportion between the packaging size and the contents of the packaging. The competition authority was of the opinion that consumers were deceived by this disproportion, as they formed a misconception through the packaging size that the volume and weight of the filling quantity corresponded to the external appearance.

Court decision

The Higher Regional Court (OLG) Karlsruhe decided by judgment dated 22.11.2012 – Az. 4 U 156/12 – that the packaging in question infringed the Eichgesetz and that therefore the distribution and marketing of the product must be discontinued.

A breach of the Eichgesetz constitutes at the same time anti-competitive conduct and a misleading commercial practice. Pre-packaged goods must be designed and filled in such a way that they do not simulate a greater filling quantity than they actually contain. However, this had been the case here, which was further aggravated by the fact that competing products were offered in smaller packaging despite a greater net weight.

The weight specifications on the packaging and on the lid film do not preclude the deception of the public. The packaging overall is not designed in such a way that an attentive consumer would necessarily perceive the weight specification.

Conclusion

The Higher Regional Court (OLG) Karlsruhe sentenced the fresh cheese manufacturer to cease and desist on account of misleading and therefore anti-competitive conduct despite its clear weight specifications on the packaging. This judgment clearly demonstrates that the greatest care must be exercised when selecting packaging and labelling it.