Product labeling - but how?

In numerous product developments, the question of what information and manufacturer's markings must be applied to the products and in what form arises time and again - we have taken a detailed look at the German Product Safety Act (ProdSG).

"Anyone who places products on the market must be responsible for their safety and be able to be identified" is how the intention for consumer protection can be summarized in a nutshell. On 20 pages and in 29 paragraphs, the "Act on the Provision of Products on the Market (Product Safety Act - ProdSG)", published in July 2021, regulates how this should look in concrete terms and how it should be applied - and yet there is still room for interpretation.

The manufacturer / the so-called quasi-manufacturer OEM / the authorized representative / the importer or the dealer is responsible for compliance with the regulations, who are obliged in this traceable chain to guarantee the safety of the product and, among other things, to provide an address and thus be available to the consumer.

If this is not done or is not done to the extent required by the Product Safety Act, this constitutes an "infringement of competition law" - an offense (including the threat of punishment) against which action can be taken - and thus entails a legal risk.

Specifically, the manufacturer must, according to §6 of the ProdSG:

• draw up instructions to avoid risks, misuse, etc.

• affix a unique identification marking (e.g. serial or type number) to the product.

• Attach the name and postal address of the manufacturer (or the importer if importing from a third country).

• The marking must be permanently affixed directly to the product.

It is sufficient to state the name of the manufacturer including the legal form, such as "GmbH", the exact contact address or P.O. Box address (if applicable with its own zip code).

However, contrary to general understanding and common practice, an Internet or e-mail address is NOT sufficient (as of 2021 and current comments from the IHKs and legal advisors).

There is only one strict exception to this obligation to label the product:

Labeling the packaging can only be considered in exceptional cases if it is not possible to affix it to the product itself or if the address is already known to consumers.

And here the legal uncertainty remains, which will only be narrowed down by judgments over time:

The technical (im)possibility of affixing the label to the product is still quite clear:

Aspects such as the aesthetic design of the product or the cost-effectiveness of affixing 'disproportionate effort' or the formulation of 'being well known' leave room for interpretation.

If a competitor wants to sue and has correctly labeled a similar product himself, this very question of money is an argument on the subject of anti-competitiveness (i.e. inadmissible cost advantage).

Anyone who manages to place the required information is therefore safe within the meaning of the ProdSG.

There are more extensive regulations for other areas, here are a few insights:

Material labeling according to ISO 11469

for parts over 25g and 200mm² surface area e.g. >ABS<, >PS-E<, the base material is named first (and not EPS as before).

Electrical appliances - the 'crossed-out dustbin' pictogram is intended to improve resource utilization and efficiency. An adhesive flag as an attachment is not sufficient by judgment (e.g. for headphones) and anti-competitive, as it is not permanent according to ElektroG §7.

Textile: A product with a weight proportion of textile fibers of at least 80% must be labeled in the respective official language without abbreviations and this leads to the long flags not only on the T-shirt, but also on e.g. bags and belts.

Packaging:

VerpackG Law on the placing on the market, return and high-quality recycling of packaging valid since July 1, 2022 (and applicable after consumption of old stocks):

Disposable Plastics Labeling Ordinance - EWKKennzV

e.g. with new label 'plastic in the product'

Packaging register LUCID / www.verpackungsregister.org:

All retailers who use packaging must register. Fees for packaging with system participation obligation (dual system) are settled with it.