"Deceptive packaging" – all hot air or a real risk?

Since 2014, the Hamburg Consumer Advice Center has been awarding the negative prize "Deceptive Packaging of the Year" to products that, in the opinion of the voting consumers, are particularly guilty of hidden price increases (e.g., so-called "shrinkflation").

Deceptive packaging can not only be a PR disaster for companies, but can also have tangible legal consequences.

1. What is "deceptive packaging"?

Deceptive packaging is defined as pre-packaged goods whose size, shape, or presentation gives the buyer the impression that there is more product content than is actually the case. The deception does not arise from the absolute quantity of the product contained, but from the disproportion between the size of the packaging (the possible filling quantity) and the actual filling quantity – i.e., the so-called "relative filling quantity." 

The decisive factor is what impression the average consumer forms of the filling quantity based on the packaging design, given appropriate attention to the situation, and whether this impression differs from the actual content. Even the correct indication of the filling quantity on the packaging cannot reliably dispel any deception if the packaging visually suggests a larger filling level.

2. Why are deceptive packaging practices problematic?

Under fair trading law, pretending to have a larger fill quantity by using oversized packaging is considered a misleading commercial practice because this "deceptive packaging" is likely to mislead consumers about essential characteristics of the product, in this case the fill quantity, and thus influence their purchasing decision.

According to the ruling of the Federal Court of Justice in the "Hydra Energy" case, the question of whether there is misleading information about the relative fill quantity and thus whether there is an illegal "deceptive packaging" is assessed on the basis of whether the packaging is proportionate to the content. This applies across all media and distribution channels, both in brick-and-mortar and online retail. The decisive factor is the expectation of the average consumer, who regularly assumes that everyday products are not completely full, but are filled to significantly more than just two-thirds of their capacity. 

However, a lower fill quantity may be harmless if, among other things, the pretense of a larger fill quantity is reliably prevented. This can be achieved, for example, by:

• the design of the packaging, for example by using transparent material on all sides. 
• informative notes, for which, however, the mere indication of the fill quantity on the packaging is generally not sufficient, as consumers regularly ignore this abstract figure or are unable to assess it correctly. One possible solution would be to use a contrasting color and clearly recognizable fill line, possibly in conjunction with an indication of the fill quantity. 

The fact that the fill quantity is based on technical requirements may also argue against misleading consumers. 

However, the burden of proof and explanation for all of the above objections to misleading advertising lies with the user.

3. What are the legal consequences?

If, after all this, there is a deceptive package and thus a violation of fair trading practices, this justifies a claim for injunctive relief by competitors and also by consumer associations. In addition, secondary claims, in particular for information and damages, are possible. 

A claim for injunctive relief is regularly asserted in the context of a warning letter subject to a fee, which then demands the submission of a cease-and-desist declaration with penalty clause within a short period of time. If this is submitted, the deceptive packaging in question must be withdrawn from circulation immediately in order to avoid the forfeiture of contractual penalties.

If a cease-and-desist declaration with penalty clause is not submitted within the deadline, the next step is usually to apply to the court for a preliminary injunction. Once the court injunction has been issued, which can happen within a few days of the application being filed, the prohibited activity must be stopped immediately in order to avoid an administrative fine. Given the short time frame of sometimes only around two weeks between receipt of the warning letter and delivery of the court injunction, this can cause considerable logistical problems.

Ideally, therefore, the risk of "deceptive packaging" should be correctly assessed and reviewed from the outset.

4. At what threshold does it become critical?

Case law is regularly based on various rules of thumb and thresholds that companies can use as risk indicators for their own initial assessment. However, these thresholds, which were generally established for everyday products, cannot, of course, replace a detailed assessment of individual cases.

• The first relevant risk indicator is the so-called "70% rule," which is also used by the courts as a practical guideline. According to this rule, if the fill volume is less than 70% of the packaging volume, this is generally a strong indication of deceptive packaging.
• Depending on the type of product, however, previous case law has also deemed lower fill volumes or empty spaces of up to 50% to be harmless. As a rule, however, a hard line should be drawn at the latest when more than half of the packaging contains only air.

Practical conclusion: For everyday goods in prepackages, a filling ratio of at least 70% should be aimed for, or the actual filling quantity should be clearly indicated, e.g., by means of a fill line.

5. Decision of the Heilbronn Regional Court – “36% content is too little”

Deceptive packaging is therefore critical in terms of fair trading law and is repeatedly challenged in court in practice, often by consumer associations. 

Kaufland recently experienced this when the Baden-Württemberg Consumer Association took the company to the Heilbronn Regional Court (Ref. Me 8 O 227/24) for selling a tofu product in oversized packaging. 

The court upheld the plaintiff's request for an injunction on the grounds that the volume of the product (shrink-wrapped tofu) was only around 36% of the packaging volume, whereas the remaining 64% of the prepackaged product contained air. It was therefore assumed that the relative fill quantity was misleading because the size of the packaging led consumers to expect a significantly higher fill quantity; specifically, consumers expected to purchase approximately twice the amount of tofu in the packaging than they actually received. 

Furthermore, the cardboard packaging was neither transparent nor did it contain any suitable explanatory information. The defendant was also unable to demonstrate that the fill quantity was based on technical requirements. 

Procedural side issue. Originally, the plaintiff had included the exception "for reasons not necessary for technical reasons" in its application for an injunction, which the defendant complained was too vague. The plaintiff later dropped this exception clause, which the court considered harmless, as the plaintiff did not have to point out to the defendant what it was allowed to do. Instead, the defendant should have argued that there was an exception in its favor, such as a technical necessity for the fill quantity. In the court's view, the deletion of the "non-claim-establishing addition 'technically unnecessary' in the final application" was therefore “merely a linguistic smoothing and had no altering influence on the subject matter of the dispute and/or the specificity of the applications.”