# Section 5a of the Unfair Commercial Practices Act (UWG): Misleading environmental claims, When the ‘blacklist’ does not apply

Teaser: Has your advertising agency devised a slogan that is cleverly worded to circumvent the ‘blacklist’? Caution: In our view, Section 5a of the UWG is a catch-all provision that can also be applied to slogans which cannot be clearly categorised under any specific Black List provision. We use real-life cases to illustrate when Section 5a may come into play.

The problem: A claim that is ‘almost’ legal

Imagine this: your company sells smartphones. The marketing team suggests advertising the new model as “built to last, with 80 per cent recyclable materials”.

This is worded specifically enough that, in our view, it would probably not fall under the general environmental claims on the blacklist (Annex No. 4a). Nor is it likely to constitute a sustainability label (No. 2a), a CO₂ offsetting claim (No. 4c) or a reference to statutory standards (No. 10a).

Nevertheless, this claim could prove costly from 27 September 2026 onwards. This is because, as we understand it, it could fall under Section 5a of the Unfair Competition Act (UWG), the provision on misleading environmental claims, which, as a catch-all provision, can also apply to claims not explicitly covered by the Black List.

Blacklist vs. Section 5a: The crucial difference

The Blacklist is like a traffic light: red automatically means stop. Section 5a is like a motorway service station: it is only assessed on a case-by-case basis, but if the assessment is negative, the penalties are just as severe.

Important: According to our interpretation, the fine is the same under both procedures. Section 5a is therefore presumably not a ‘less serious’ offence, but rather a different audit procedure.

What the 2026 amendment to the Unfair Commercial Practices Act (UWG) regulates

As we understand it, the amendment has expanded Section 5a to include aspects relating to the circular economy. From 27 September 2026, the following are expected to be explicitly covered:

• Durability, how long does the product last?
• Repairability, can spare parts be obtained?
• Recyclability, what materials is it made of?

Previously, such claims were simply classified as general misleading information. Now they have their own assessment framework, with clear criteria for what constitutes a ‘material characteristic’.

Three practical examples: When does Section 5a apply?

Case 1: The recycling rate that’s wrong

Claim: “85% recyclable materials” on the product packaging.

Why it’s probably not on the blacklist: The claim is specific (“85 %”) and refers to a concrete characteristic. It is presumably not a general “green” claim.

Section 5a assessment: Is the 85 per cent figure accurate? If the company cannot substantiate the figure with a material analysis, the claim could be classified as misleading. As we understand it, the burden of proof lies with the company, not with the complainant.

Solution: Carry out a material analysis in accordance with ISO 14021, archive the results, and provide a source reference for the claim.

Case 2: The shelf-life claim without a basis

Claim: “Built to last, lasts longer than comparable products.”

Why it is probably not on the blacklist: A specific statement about a circular economy characteristic. According to our interpretation, this does not meet the criteria for inclusion on the blacklist.

Section 5a assessment: What does ‘longer’ mean? Compared to which products? If the comparison is missing or the basis for comparison is unclear, the claim could be classified as misleading, even if the product does in fact last longer.

Solution: Specify the basis for comparison (“lasts 30% longer than the industry average, as determined in test series X”). Document the test results.

Case 3: The image that promises more

Presentation: Product photo set against an unspoilt mountain landscape, no text claim.

Reason for likely exclusion from the blacklist: There is no textual claim that would obviously fulfil the criteria for inclusion on the blacklist.

Section 5a assessment: In our view, images can also be misleading. If the mountain landscape suggests a level of environmental sustainability that does not exist, Section 5a could be relevant. The European Court of Justice has, in several rulings, taken visual imagery into account when assessing misleading advertising.

Solution: Check the context of the image. If the product has no proven environmental performance, do not use a natural landscape as a background.

Four questions to ask yourself about every claim

Before publishing an environmental claim, assess it against these four questions:

1. Is the claim specific enough? If it merely says ‘green’, ‘eco’ or ‘sustainable’ without providing any details, in our view, this could constitute a general environmental claim (Blacklist No. 4a). Not specific enough = risk.

1. Can you provide evidence for every component? If you state “85 per cent recyclable”, can you provide a material analysis? If not, Section 5a could apply.

1. Is the scope clear? Does the claim refer to the whole product or just a part of it? If unclear: specify or narrow it down.

1. Is the comparison fair? If you say “better than …”, what are you comparing it to? The previous model? The industry average? The basis for the comparison should be clear.

What § 5(3) adds

In addition to Section 5a, there are two further specific scenarios that are important in practice:

Irrelevant benefits (Section 5(3)(3)): ‘Free from microplastics’ in the case of a bar of soap, microplastics are generally not expected to be present in this product category anyway. The claim may suggest a particular benefit that does not exist.

Future environmental benefits (Section 5(3)(4)): ‘Climate-neutral by 2030’, in our view, this is permissible provided the commitment is binding, an implementation plan exists and it is independently monitored. Vague declarations of intent without a plan could be classified as misleading.

Sectors that are particularly affected

Case-by-case assessments under Section 5a primarily affect sectors with complex supply chains and numerous interrelated aspects:

• Food: regional claims, organic labels, climate-neutral production
• Fashion: sustainable materials, fair production, recycled fabrics
• Electronics: energy efficiency, reparability, recyclable casings
• Cosmetics: natural ingredients, cruelty-free, biodegradable
• Building materials: Regional origin, recycled content, emissions

This is how the GreenClaims Manager helps

Our algorithmic tool checks your marketing texts on both levels: first against the blacklist criteria (automatic risks), then against the Section 5a criteria (case-by-case risks). For each finding, you will receive a risk classification and a specific suggestion for improvement.

Initial findings in 30 seconds → start a free scan

FAQ

When exactly does Section 5a take precedence over the blacklist?

By its very nature, the Blacklist applies automatically whenever one of its criteria is met. Section 5a can serve as a ‘safety net’ for all other claims that might be misleading in individual cases, such as specific statements that are factually incorrect or cannot be substantiated.