On 30 June 2022, the Higher Regional Court of Schleswig made a decision regarding the claim “climate neutral” (Appeal: 6 U 46/21, 1st instance: Regional Court of Kiel, 2 July 2021, 14 HKO 99/20). The Appeal Court overruled the Regional Court’s decision that argued that since climate neutrality can be achieved by different means, it is essential for consumers to be able to obtain information on how climate neutrality is achieved. In its decision, the Appeal Court stated that the product advertisement at hand was not misleading although the climate-neutrality was only achieved through compensation measures and the advertising did not fully clarify this. The Court argued that the consumer understanding has developed over time and that it nowadays is clear for the consumer that the product in itself cannot be produced entirely emission free but that a compensation via certificates must have taken place. It needs to be noted that in the case at hand, the product packaging also contained general information that the company supports climate protection projects and furthermore, a URL was printed on the packaging on which further information on the compensation scheme were included. Thus, the consumer was able to find some further information in the advertisement.
This is the first court ruling which is less strict than all previous decisions that have always emphasized the need to inform consumers exactly how climate neutrality will be achieved. The Appeal Court also uses a better informed consumer to assess the potentially misleading nature of the product advertisement. It is not certain that other higher courts will follow this line of reasoning, especially since the majority opinion so far has been different. It remains to be seen how other courts will now position themselves.
