Distributors liable for makers' cosmetic claims only if knowingly false

The Court of Justice heldEuropa on 5 November 2026Europa, in Case C-435/25Europa Verband Sozialer Wettbewerb v GUT GEKAUFT ReformhäuserEuropa, that a distributor which republishes a manufacturer's cosmetic product claim verbatim is only obliged to verify it where the distributor holds sufficient information revealing that the claim is manifestly misleadingEuropa. The Eighth Chamber ruling, on a reference from the Bundesgerichtshof, further holds that the unfair-commercial-practices directive cannot be used to prohibit such advertising where that information threshold is not metEuropa, because the cosmetics regulation governs as the special ruleEuropa.

The dispute arose from a cease-and-desist action by VSW, a German association combating unfair competition, against Gut Gekauft, a retailer of dietetic and natural products. The retailer had promoted a cosmetic product in its advertising leaflets with a claim about the effects of a ginseng extract contained in it. The manufacturer had supplied the claim, which also appeared on the product packaging, and had approved the leaflet before publication. VSW considered the efficacy of ginseng extract for external use scientifically unproven and the claim therefore unlawful.

On the first question, the Court reads the distributors' duty of due care in Article 6(1) and the first subparagraph of Article 6(3) of Regulation (EC) No 1223/2009, together with the product-claims ban in Article 20(1)Europa, as limited: a distributor making a cosmetic product available under the manufacturer's name or brand without modifying it must verify the characteristics or functions attributed in its leaflets only where it holds sufficient information revealing the manifestly misleading character of those claimsEuropa. Whether Gut Gekauft's efforts met that duty on the information available to it is for the referring court to assess.

On the second question, the Court applies the conflict rule in Article 3(4) of Directive 2005/29/EC.Europa The cosmetics regulation contains specific rules on distributors' advertising obligationsEuropa and, as an exhaustively harmonising measure, constitutes the special regime for this aspect of misleading practicesEuropa. The two regimes can therefore collide beyond reconciliationEuropa: parallel application of the directive's general ban on misleading advertising, in Article 5(1) and (4)(a) and Article 6(1)(b), would neutralise the limits the legislature placed on distributors' liabilityEuropa. Hence the directive does not permit treating the verbatim-republished advertisement as an unfair commercial practice where the distributor has no information revealing its manifestly misleading characterEuropa. The outcome differs where it doesEuropa: a distributor acting in breach of its duty of care breaches the directive at the same timeEuropa, so both instruments point to liability. The directive also remains available for aspects outside the regulation's scope, such as aggressive practices accompanying the same promotion.Europa

For distributors, retailers and brand-owners' counsel, the practical point is that verbatim republication of a manufacturer's claim under the manufacturer's brand does not itself trigger a verification duty or an unfair-practice findingEuropa; exposure turns on what information the distributor held showing the claim was manifestly misleadingEuropa. Claimant associations bringing cease-and-desist actions must therefore plead and evidence that knowledge threshold rather than the mere falsity of the claim.Europa

Its legal basis is Article 6(1) and the first subparagraph of Article 6(3), read with Article 20(1), of Regulation (EC) No 1223/2009Europa, and Article 3(4), read with Article 5(1) and (4)(a) and Article 6(1)(b), of Directive 2005/29/EC.