If you want to sell your goods online with as little risk of a warning as possible, you need to observe numerous legal framework conditions. IT-Recht Kanzlei has compiled a 9-point checklist, including a list of the most common reasons for warnings in recent weeks, to help you avoid some of the pitfalls in eCommerce. Use the following points to check whether you have already taken the right legal precautions.
1. legal notice must be complete and up to date
Make sure that your legal notice is complete and, in particular, that the link to the ODR platform is clickable (!).
In addition:
2. legal texts on your sales platforms
Make sure you use up-to-date legal texts (legal notice, terms and conditions, revocation policy with sample revocation form and privacy notice) in your store. Regular updating is the top priority here. These texts are available to you, for example, as part of our own services.
You should also completely remove the old legal texts beforehand. This is because outdated general terms and conditions, revocation instructions, etc. pose a major risk of warnings. For this reason, and to avoid contradictions with your new legal texts, please remove your old legal texts completely. Please also consider “remote” pages and, for example, the automated sending of old texts by email.
Send the legal texts to the customer after his order at least in text form. Contrary to common assumptions, simply displaying the legal texts online is not sufficient. Therefore, send the GTC and the revocation instructions with the sample revocation form to the customer by email (e.g. as PDF attachments) after they have placed their order. Make sure that the texts sent match the texts displayed on the website.
Important: The legal texts of your sales platforms are not interchangeable! In plain language, this means that you cannot use legal texts for your own online store for sales on Amazon.de or eBay.de and vice versa – there is a risk of warning letters!
3. comply with obligations under the Price Indication Ordinance - in particular the basic price indication
Missing or incorrect basic price information, a lack of reference to the inclusion of VAT and inadequate shipping costs are at the top of the list of reasons for issuing warnings. Avoid these typical mistakes and keep the following in mind:
Caution when stating the base price with reference to the unit of measure 100g / 100ml: IT-Recht Kanzlei has currently received several warnings objecting to the reference to an incorrect unit of measure when stating the base price. For goods that are listed or advertised by weight or volume and whose nominal weight or nominal volume does not usually exceed 250 grams or 250 milliliters, the law also allows 100 grams or 100 milliliters as the unit of measure when stating the base price.
Unfortunately, in practice it is often the case that retailers incorrectly state the base price as 100 grams or 100 milliliters, even for goods with a nominal volume or nominal weight of more than 250 grams or 250 milliliters. Such a basic price indication is incorrect, does not comply with the legal requirements and leads to the risk of a warning. It would be correct to refer to 1 kilogram or 1 liter for such goods.
Special case price search engine: Products subject to a base price must also be provided with a base price on “Google Shopping” and other online price search engines and/or product search engines.
Problems with product sets: It should also be noted that a basic price must be stated for product sets or product combinations (so-called bundles) if the value of the different products is not approximately equivalent (value ratio of main product to combined product is 90%:10% or more). The decisive factor is whether the product supplied in addition to the main product is regarded by the consumer as an insignificant bonus.
Attention for search results for items subject to a basic price: If your JTL-Shop also displays a price as part of the search results for the respective product, you must ensure that the base price for the product is also displayed as part of the respective search result for products that are subject to the base price obligation. A correct basic price indication on the category page, the item detail page or in the shopping cart is then not sufficient.
4. topic textile labeling
If you sell textile products, you cannot avoid the topic of textile labeling. You can find detailed rules on textile labeling in the following item: 7 rules on textile labeling
5. height of art: selling food
Anyone listing food products must comply with a large number of complex online labeling obligations. IT-Recht Kanzlei has dealt with these labeling obligations in a detailed article on its own website: Sale of food
6. does not violate the ElektrG and BattG
Electrical appliances: According to the provisions of the Electrical and Electronic Equipment Act (ElektroG), manufacturers of electrical and electronic equipment must register with the EAR Foundation before placing the equipment on the market. Manufacturers who fail to do so, or distributors who at least negligently fail to offer new electrical and electronic appliances or offer them as an improperly registered manufacturer, are acting anti-competitively. Costly warnings are the frequent consequence. At the same time, however, this behavior also constitutes an administrative offense.
Batteries: If batteries and accumulators (including those contained in appliances) are placed on the market for the first time in Germany, this must be reported to the Federal Environment Agency in accordance with the provisions of the BattG. Anyone who fails to comply with this notification obligation is also acting in breach of the regulations.
Reasons for warnings in practice in recent weeks
Here we have summarized some examples of cases that have crossed our desks in recent weeks:
Insured shipping
The established case law assumes that advertising with “insured shipping” in online trading is advertising with self-evident statements and is therefore inadmissible because the transport risk for consumer goods purchases is already borne by the entrepreneur by law.
Advertising with CE marking
Online retailers who advertise with the statement “CE-tested”, “CE-tested” or “CE-certified” or “Certification according to CE” are repeatedly being warned. Legal background: The “CE mark” is generally not a quality mark. It does not indicate any particular safety or quality of the product. However, by using the phrase “CE-tested” in connection with the product, the consumer is given the impression that a neutral body has carried out a test and that the product has a special level of safety and quality that sets it apart from other products on the market.
Missing international shipping costs
Online retailers who also offer their customers the option of delivery abroad must explicitly state the shipping costs for all delivery countries. In terms of time, the customer must be given the opportunity to find out about any foreign shipping costs before placing the goods in the shopping cart. Important: Requesting the customer to inquire about foreign shipping costs (e.g. “Please inquire about foreign shipping costs”) is also impermissible and was the subject of the warnings here.
Missing shipping costs in Google Shopping
The issue here was the lack of display of shipping costs for Google Shopping listings. The advertising retailer is also responsible for these listings. This liability of the advertising company for the missing (and also incorrect) shipping costs serves to protect consumers and competitors. In terms of competition law, Google Shopping is the retailer’s agent. So watch out: The correct display of prices should always be monitored by the retailer.
