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Misleading advertising - Notice about risks and side effects

May 2019 - EU & Competition. Legal Developments by GRP Rainer LLP.

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Enhancing or promoting products in a way that is misleading to consumers may be in breach of competition law. That was the verdict of the OLG Dresden in relation to “risks and side effects”.

Medicinal products are required to have a standard notice encouraging people to read the information leaflet in the packaging and ask their doctor or pharmacist about the risks and side effects. We at GRP Rainer Rechtsanwälte note, however, that this warning notice does not belong on dietary supplements or cosmetics. According to a ruling of the OLG Dresden from 01.15.2019, this misleadingly enhances consumer perceptions of the products (Az.: 14 U 941/18).

In the instant case, the defendant’s dietary supplements and cosmetics were “promoted” online with the warning notice about risks and side effects. A competition association sued, claiming that it gave the misleading impression that these were medicinal products with corresponding therapeutic effects.

The OLG Dresden agreed, deeming the warning notice misleading and anti-competitive; there was a risk of consumers attributing a greater effect to these products than comparable goods, despite this not being the case.  As such, consumers were being misled about key features.

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