Deceptive packaging: Cake packaging – with 40% to 50% less content than its appearance would suggest – is deemed to be deception if the oversized packaging is avoidable

misleading commercial practice deceptive packaging unfair competition provision of food information to consumers

Supreme Court decision of 29 January 2019 in case 4 Ob 150/18i

The case focussed on the issue of the non-transparent outer packaging used for a chocolate cake. The packaging contained five pieces of cake, each individually wrapped in silver foil. Warm air becomes trapped within the packaging of the individual pieces of cake when they are sealed inside. This explains why they have a greater volume (approximately 10%) immediately after being sealed. "Removing the air" from the individual packages, which would result in there being enough space for a total of six pieces of cake, is not possible using packaging equipment manufactured from the 1990s. This would be possible if newer machines were used. The actual total weight of the packaged contents, amounting to 150g, was stated on one of the narrow sides of the outer packaging.

On the basis of the established facts, the Supreme Court could find no technical reason why the original individual packaging needed to have a greater volume. Moreover, it ruled that a deception regarding more volume of 40% to 50% of the cake is capable of creating a false impression as to the product's key characteristics (Section 2 para. 1 no. 2 of the Unfair Competition Act). The deception caused by such avoidable over-dimensioning of the individual packaging cannot be remedied by stating the net weight of the product on the external packaging (cf. ECJ, 4 June 2015, C-195/14 – Teekanne).

The present case was remitted the court in the first instance for supplementary proceedings to establish the exact relationship between the goods (including non-bloated individual packaging) and the outer packaging.