Consumer protection – Corona keeps consumer advocates on their toes

Flight canceled: The nightmare of every vacationer became a bitter reality for thousands of people who love to travel in early March 2020. More and more flights were canceled due to the rapid spread of the corona virus, and the departure halls of the airports were soon empty. In addition to the lost holiday joy, many consumers began a tough struggle to get the cost of their tickets reimbursed. For consumer advocates, this meant high season.

In the past twelve months, the Association for Consumer Information (VKI) has filed around 25 lawsuits in a wide variety of legal areas in connection with the corona pandemic, above all in travel law, but also in insurance and credit law. There was also a flood of complaints from consumers. 50,000 inquiries were received on the additionally set up Corona hotline alone.

Now the VKI is taking on the controversial FFP2 masks of Hygiene Austria, some of which were produced in China, as the company itself admitted after house searches. Many consumers had bought the masks in the belief that they were made in Austria, that is to say that they were “Made in Austria”. This information is not found directly on the masks, but: “It’s about the overall impression,” says Thomas Hirmke, chief lawyer of the VKI, to the “Wiener Zeitung”. With the exception of the food sector, there are unfortunately no clear guidelines on the designation of origin. According to German jurisprudence, it depends on where the essential manufacturing steps have taken place, from which the relevant properties of the product result.

Condom “Made in Germany” must not come from China

Hirmke refers to the Federal Court of Justice in Karlsruhe, which had decided that only a condom made in Germany may be advertised as “Made in Germany”. A condom manufacturer from Thuringia imported latex blanks from the Far East and then moistened, packaged and sealed them in Germany and carried out quality control. The condoms were advertised on the Internet as “Made in Germany”. A rival company sued and was right. Customers would expect that the main production steps for “Made in Germany” would not take place abroad, but in Germany, according to the court.

“Made in Austria” is nothing more than an advertising slogan, says Walter Summersberger from the Institute for Financial Law, Tax Law and Tax Policy at the Johannes Kepler University (JKU) Linz. When it comes to the question of origin, however, there is a legal basis. The origin is where the product was last worked or processed. The mere repackaging or relabelling of goods does not change anything in the country of origin. Summersberger: “If a product was manufactured in China and transported to Austria, it remains of Chinese origin. Specifically: the mask has Chinese origin.”

The state of Lower Austria, the state health agency (LGA) and the Nö. The Chamber of Commerce (WKNÖ) is said to have obtained around five million FFP2 masks from Hygiene Austria, write the “Niederösterreichische Nachrichten” (NÖN). According to “Kurier”, the State of Lower Austria also reserves the right to take legal action.

In connection with protective masks, the VKI has already twice filed complaints about misleading advertising. For example, KitzVenture, a company based in Kitzbühel, advertised its MNS masks as “the prevention of droplet and smear infections of all kinds, such as bacteria and viruses”. According to experts, MNS masks offer the wearer little or no protection against transmission of the coronavirus, according to the VKI. This has not been sufficiently pointed out. KitzVenture concluded a judicial settlement of omissions with the VKI.

The VKI also sued Silvercare GmbH for misleading in connection with MNS masks, and the Linz Regional Court was right. Silvercare promised on the website a scientifically unproven protection of the mask wearer against SARS-CoV-2.

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