Green Claims reach the Spanish courts

The national association of bottle drinking water companies (hereinafter, Aneabe) filed a lawsuit against Tapp Water S.L. (hereinafter, Tapp Water) which sells a series of filters that purify water. Aneabe brought unfair competition actions in relation to an advertising campaign developed by the defendant through social networks and the content of the company's website. This campaign included different claims about the properties and characteristics of filtered tap water, alleged environmental problems that can be linked with the use of plastic bottles and also compared qualities of tap water with those of bottled or mineral water.

The plaintiff argued that some claims should be considered misleading advertising according to the content of Article 5 of the Spanish Unfair Competition Law (LCD). That is, information that meets three requirements: first, the information must be false, or it must be true but misleading; second, the information, false or misleading, must be able to affect economic behaviour; and thirdly, it must refer to certain aspects, among other things, to the main characteristics of the goods or services.

Likewise, Aneabe deemed that the defendant's advertising sought to denigrate the bottled water industry as waste-generating and not environmentally friendly which should be considered as acts of denigration as established in Article 9 LCD that defines "as the making or dissemination of statements about the activity, benefits, establishment or business relationships of a third party that are likely to undermine their reputation in the market, unless they are accurate, true and relevant ".

Tapp Water filed a Statement of Defense, opposing the plaintiff's lawsuit on the basis that the advertising was true and not misleading and also that its messages were accurate, true and relevant.

The Commercial Court nº 10 of Barcelona handed down a ruling on April 2, 2019, dismissing the lawsuit in first instance. This ruling was appealed by Aneabe to the Court of Appeal of Barcelona which issued its ruling on October 6, 2020, reversing the first instance ruling. The Court of Appeal partially upheld the lawsuit and found that some claims should be considered misleading advertising and also acts of denigration in accordance with Articles. 5 and 9 LCD.

The Court held that some claims were misleading by attributing characteristics such as mineralization to filtered water that can only be attributed to natural mineral water and suggesting that filtered water is better for health than bottled water.

The Court declared that filtered water is perfectly healthy tap water, but it is not mineral water unless it already contains minerals from the source. Likewise, the statement that tap water is healthier than mineral water, since there are no studies to support such a claim, should be considered simply false. In addition, by referring to one of the essential characteristics of the product, it has the capacity, at least potential, to make the consumer choose one product (mineral/bottled water) over another (filtered tap water).

Furthermore, the Court highlighted that to assess whether information is false or true, scientific parameters must be applied. However, to assess whether this information can mislead or alter the economic behaviour of the consumer, the average consumer must be considered in accordance with Article 4.2 LCD. The Court also recalls the interpretation of this concept by the Court of Justice: that the average consumer is normally informed and insightful (Directive 2005/29/EC of the European Parliament and of the Council of May 11, 2005, concerning unfair business-to-consumer commercial practices in the internal market, recital 18).

Another statement considered misleading by the Court was the advertising message on the need to be concerned about the toxins in plastic bottles, specifically in relation to the product BPA (a carcinogenic substance). According to the ruling, this claim is intended to transmit to the consumer the possible toxicity of plastic bottles, despite knowing that most plastic bottles sold in Spain do not use that product in their manufacture and that this fear is not based on real facts. Therefore, the information was considered misleading by the Court since it sought to condition the consumer.

Finally, the Court also found misleading advertising when comparing the prices of bottled water and filtered water. The advertising information does not explain how the figures offered by the defendant are achieved. Therefore, the information is misleading insofar it was referred to as essential information that the consumer should consider.

In addition, regarding the acts of denigration mentioned by the plaintiff about the bottled water industry as waste-generating and not environmentally friendly, the Court recalls that offering negative information about the environmental performance of a competitor's products undoubtedly affects its reputation in the market, since the consumer is currently concerned about the environment. In this sense, some claims were considered acts of denigration as the defendant had not provided evidence to support these specific claims.

However, other statements that also appeared in this campaign were not considered misleading advertising due to the lack of ability to mislead the consumer about the defendant's product.

This judgement could be appealed before the Spanish Supreme Court.