ADVERTISING LAW | The ECJ on the use of the “skin friendly” indication for biocidal products

On 20 June 2024, the European Court of Justice (ECJ) issued its judgment in Case C‑296/23 (dm-drogerie markt) concerning the advertising claim “skin friendly” in relation to a disinfectant sold by the drugstore chain “dm”, operating in Germany, among other countries. In particular, the German Federal Court of Justice requested a preliminary ruling of the ECJ on the interpretation of Article 72(3) of Regulation (EU) No 528/2012 (the “Regulation”), which provides that advertisements for biocidal products shall not refer to the product in a manner which is misleading in respect of the product’s risks to human health, animal health or the environment, or the product’s efficacy. More specifically, the Regulation establishes that the advertising of a biocidal product may not mention terms such as “low-risk biocidal product”, “non-toxic”, “harmless”, “natural”, “environmentally friendly”, “animal friendly” or any similar indication. According to the ECJ, the statement “any similar indication” includes any indication which is liable to mislead consumers by downplaying the risks associated to biocidal products, or even denying the existence of such risks. In the case under consideration, the ECJ found that the indication “skin friendly” would have a positive connotation, to the point of almost suggesting that the disinfectant could be beneficial for the skin. Consequently, the ECJ considered such a claim to be misleading and prohibited its use in the advertising of biocidal products.

Newsletter n. 98 – July 2024