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HEALTHCARE AND MEDICAL DEVICES E-SSENTIALS

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Ensure transparency and compliance in advertising with TÜV SÜD certification marks 

FEBRUARY 2017 - RELEVANT FOR: HEALTHCARE AND MEDICAL DEVICES

TÜV SÜD’s octagon is widely known as a certification mark, and enjoys a high level of trust by consumers and industry alike. A web link has recently been added to the certification mark to ensure compliance with the latest court rulings. The change was initiated by the verdict I ZR 26/15 of June 21, 2016, of the German Federal Court of Justice (Bundesgerichtshof, BGH), which confirmed B2C advertising that uses certification marks without providing further information about the underlying tests to be unacceptable. Consumers must have the possibility to inform themselves in detail about the contents of the certification mark statements. Certification marks used in advertising must be accompanied by a reference, e.g. in the form of a link, where consumers can look up further information. In line with this ruling, TÜV SÜD has already modified all consumer-focused certification marks by adding brief statements and a link. This link redirects consumers to a public certificate database where essential information on tests and certificates is freely accessible. Certificate holders can download the updated certification marks from the TÜV SÜD Download Center. By introducing the new certification mark in conjunction with its certificate explorer function, TÜV SÜD has taken steps to ensure that its clients will continue to be on the safe side when using the blue TÜV SÜD octagon in advertising.

THE LEGAL POSITION 

In its written judgement on the verdict, the BGH explains that provision of a reference with more detailed information on the certification criteria is considered essential information as defined in Section 5a (2) Unfair Competition Act (Gesetz gegen unlauteren Wettbewerb, UWG). According to the court, consumers have significant interest in familiarizing themselves with the content of the certification mark in order to make an informed purchase decision for or against a product. The court further points out that third-party certificates play a significant role in consumers’ decisions.

Given this, use of a certification mark which is targeted at consumers without providing a reference is considered “misleading by omission” as defined in Section 5a (2) UWG. In case of violations, manufacturers must expect written warnings or claims for damages.

On top of the above verdict, the Oldenburg Higher Regional Court (Oberlandesgericht, OLG) ruled in its verdict 2016 6 U 64/15 of July 31 that these references must be clearly legible. The OLG does not define a minimum font size, but provides for a case-by-case assessment and judgement of the overall impression.

Manufacturers and retailers must be especially careful when they use certification marks on packaging, any type of advertising materials, or the Internet. TÜV SÜD urgently recommends the use of only the new TÜV SÜD certification marks with Internet link for consumer products in the future.

CERTIFICATE EXPLORER FUNCTION

The updated TÜV SÜD certification marks now include additional short texts plus the link “tuev-sued.de/ps-zert” or “tuv-sud.com/ps-cert” in the English version, which is the reference required by BGH. This link redirects users to a public database of TÜV SÜD certificates containing detailed information about the certification marks and services. Short profiles of the certification marks provide information about both the content of the certification marks and that of certificates issued by TÜV SÜD, presented in a user-friendly way. An easy-to-use search function ensures that users can call up this information quickly and directly.

Disclaimer
Please note that ultimate responsibility for correct use of certification marks rests with the certificate holders. Unfortunately, TÜV SÜD cannot issue any warranty that the above measures will ensure 100% compliance with the current requirements of case law regarding advertising with certification marks. Please regard TÜV SÜD’s recommendations as a customer Service. 

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