On June 20, 2024, the Court of Justice of the European Union issued a judgment in case C-296/23, answering a preliminary question from a German court, in which it indicated that a biocidal product cannot be advertised as ‘skin-friendly.’

The case concerned a dispute between the German Association for Protection against Unfair Competition and the German Drugstore dm-drogerie markt GmbH & Co. KG, which offered a disinfectant for hands and surfaces, advertising it using statements: ‘Ecological Universal Broad-Spectrum Disinfectant’, ‘Skin, hand and surface disinfection’, ‘Effective against SARS-Corona’ and ‘Skin friendly • Organic • Alcohol-free.’

Regulation of the content of labels and advertisements of biocidal products in EU law

In its arguments, the Association, seeking to determine the errors of the advertised content, referred to Article 72 Section 3 Sentence 2 of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products, according to which under no circumstances may an advertisement for a biocidal product mention the indications ‘low-risk biocidal product’, ‘non-toxic’, ‘harmless’, ‘natural’, ‘environmentally friendly’, ‘animal-friendly’ or similar indications.

The rule mentioned above is supplemented, among others, by Article 69 Section 2 of the Regulation mentioned, which specifies that labels for biocidal products must not be misleading concerning the risks from the product to human health, animal health, or the environment or its efficacy and, in any case, do must not mention the indications ‘low-risk biocidal product’, ‘non-toxic’, ‘harmless’, ‘natural’, ‘environmentally friendly’, ‘animal-friendly’ or similar indications.

In the national court’s opinion, the phrase “skin-friendly” is not included in the open catalog of prohibited statements

The dispute in the case was based on determining the meaning of the terms ‘any similar indications’ and ‘similar phrases’ used in the mentioned provisions of the Regulation and whether the phrase ‘skin-friendly’ is to be considered one of these types of indications. In other words, does the statement of ‘any similar indications’ include any indication in an advertisement for biocidal products which, like the examples mentioned in the provision downplays the risk that the biocidal product may pose to human health, animal health, or the environment or the risk as to its effectiveness, but is not general in nature.

During case hearings before national courts, the court of second instance found that a common feature of the statement listed, for example in Article 72 Section 3 Sentence 2 of the Regulation is downplaying, in the form of a general statement, the risk that a biocidal product may pose to health or the environment or regarding its effectiveness. Therefore, the term ‘similar indications’ covers indications of the risks associated with a biocidal product that is comparable to the examples included in the abovementioned provision and which downplay those risks. 

Referring to the label analyzed, the national court concluded that the ‘skin-friendly” indication used by the drugstore does not constitute a “similar indication” within the meaning of Article 72 Section 3 Sentence 2 of the Regulation. According to it, this phrase does not relativize the risk of the product or its effects and their harmfulness (like the statements ‘low-risk biocidal product,’ ‘non-toxic,’ ‘harmless’), neither generally nor specifically. In the court’s opinion, the indication ‘skin-friendly’ simply, but generally, describes the effect of the product regarding the skin.

The Association appealed against this verdict to the Federal Court of Justice. The court was more in favor of the view of the court of second instance. In its opinion, the regulation is not intended to completely prohibit indications in the advertising of biocidal products that refer to the presence and, in each case, the extent or absence of certain types of risk. Ultimately, it decided to ask the CJEU about the interpretation of these provisions.

The ruling of CJEU

The CJEU, analyzing the argumentation of both parties, concluded that it cannot be allowed to use advertising phrases referring to no risk or low risk or certain positive effects of these products concerning biocidal products to downplay this risk or even deny its existence. Such phrases may encourage excessive, negligent, or incorrect use of said products, contrary to the aim of minimizing their use. Assessing the phrase ‘skin-friendly’ used in the advertising of the product in question, the CJEU emphasized that such a phrase at first glance has a positive connotation and avoids mentioning any risk, so it may relativize the harmful side effects of the product and even suggest that the product may be beneficial for the skin.

The CJEU finally determined that Article 72 Section 3 Sentence 2 of the Regulation must be interpreted as meaning that: “the concept of ‘any similar indication’ within the meaning of that provision covers any indication contained in an advertisement for biocidal products which, like the phrases referred to in that provision, refers to those products in a way misleading their user as to the risks they may pose to human health, animal health or the environment, or as to their effectiveness, by downplaying those risks or even by denying their existence. Without necessarily being general in nature.