On July 17, 2008, the First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, had to rule on the permissibility of a collection campaign that also targeted children and adolescents.
Nestlé AG had conducted a collection campaign for its chocolate bars (e.g., “Lion”, “KIT KAT”, and “NUTS”), where a collection point (so-called “N-Screen”) was printed on each package. 25 collection points could be redeemed for a 5 € voucher for a purchase from the online retailer amazon.de. The plaintiff, the Federation of German Consumer Organizations, had sued Nestlé for an injunction. It argued that the campaign was anti-competitive because it exploited the collecting enthusiasm of children and adolescents, potentially displacing their rational purchasing decisions.
While the Regional Court had granted the claim, the Higher Regional Court of Frankfurt am Main had dismissed it. The Federal Court of Justice upheld this decision. Although advertising campaigns that exploit the commercial inexperience of children and adolescents are anti-competitive, given the particular need for protection of young consumers.
However, the Federal Court of Justice clarified that not every targeted influence on minors is anti-competitive.
Furthermore, not every collection and loyalty campaign aimed at minors is impermissible. Even for particularly vulnerable target groups, the assessment should be based on the average informed and attentive consumer within that group. The economic consequences of participating in the challenged collection campaign could – according to the Federal Court of Justice – also be sufficiently understood by minors. It concerned a product about which minors also possessed sufficient market knowledge. The bars were sold at their usual price of approximately 40 cents during the promotional campaign. Moreover, participation in the collection campaign remained within the scope of minors' regularly available pocket money. The terms of participation were also transparently designed for minors.
The legal situation under the EU Directive on Unfair Commercial Practices did not yet play a decisive role in the decision.
Judgments: Federal Court of Justice (BGH) – Judgment of July 17, 2008 – I ZR 160/05 – N-Screensm, Higher Regional Court of Frankfurt – Judgment of august 4, 2005 – 6 U 224/04 (GRUR 2005, 1064), Regional Court of Frankfurt – Judgment of October 14, 2004 – 2/03 O 35/04
Source: Press Release No. 141/2008 from the Press Office of the BGH dated July 18, 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-Mail pressestelle@bgh.bund.de.
Comment by Goldberg Attorneys at Law:
Considering the EU Directive on Unfair Commercial Practices, which has been directly applicable to German law since December 12, 2007, the BGH would likely have reached a different legal assessment of the present case.
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
