Advertising with test results – information obligations!

Advertising with test results is very popular in commerce. However, when advertising with test results, strict formal requirements must be observed in order to avoid anti-competitive misleading. For example, it is necessary to provide a source reference for the test.

A company advertised its products on the Internet – with positive test results from an online portal.

No further information about the test was published. Neither a source reference for the test nor a link to the test report was displayed.

A competitor saw this as anti-competitive misleading and sued the advertising company.

Court decision on information obligations when advertising with test results

By judgment of 24.03.2016 – Az. 6 U 182/14the Higher Regional Court (OLG) Frankfurt a.M. prohibited the advertising company from advertising with the test result in this form.

The Frankfurt judges classified the advertising as misleading. The consumer would need the missing information in order to make an informed commercial decision.

As early as 1991, the Federal Court of Justice (BGH) established that when advertising with test results, the advertiser must provide the source reference for the publication of the test.

According to the view of the Higher Regional Court (OLG) Frankfurt a.M., such a source reference indication can also be replaced by a link to the test report in the case of advertising on the Internet.

The advertising company failed to provide a reference to the source of the test or to set a link, so that a breach of competition law is to be affirmed.

Conclusion

It is important that internet users are not withheld essential information when advertising, including when advertising with test results. It is therefore not surprising that the Higher Regional Court (OLG) Frankfurt a.M. found misleading conduct when the consumer was not informed of the source reference for the test or a link thereto.