Test results in advertising must match the source, model and test date. Learn how to review the scope, currentness and evidence of the claim under the UWG.
, Mag. Bernhard Brandauer, Rechtsanwalt
A strong test result can look like independent confirmation in advertising. That is precisely why the claim must not extend beyond the report. Small differences in model, equipment, software, production series or test date can change what the result actually covers.
Section 2 UWG covers statements about material characteristics, tests and investigations where they shape the overall impression of a commercial practice and may influence a transactional decision. Advertising with test results therefore requires more than the existence of a report. The source, tested product, claim and currentness must fit together.
This article explains which records a business should bring together before publication. It focuses on the exact source, whether the tested and advertised models are the same, and whether the result still describes the current product.
The short review path separates planned advertising, active advertising and a competitor’s test advertising. It then helps identify the relevant records.
The test report, model, test date and exact advertising version determine the initial review.
For the initial review, the exact test, tested model, date and published advertising version are decisive.
Record the testing body, report, test date, tested model, equipment and planned advertising version. Then check whether the report supports precisely the claim that the audience will understand from the advertisement.
Preserve the advertisement, landing page, packaging, publication period, test records and every relevant product change. Record whether the model, equipment, formulation or software has changed since the test.
Keep the complete advertisement and exact product designation. Compare model, version, test date and test conditions with the product actually offered before drawing a legal conclusion.
Advertising with a test result usually contains a statement of fact: a particular product is said to have achieved a particular rating or position in a particular test. Section 2 UWG therefore requires a review of whether the statement is accurate and sufficiently clear for its audience. A statement can be formally true and still be misleading if the overall impression hides important limitations.
For consumer-facing advertising, Directive 2005/29/EC provides the EU framework for misleading actions and omissions. Article 6 covers, among other things, incorrect or deceptively presented material characteristics. Article 7 addresses the omission or unclear presentation of material information where this can influence a transactional decision.
Section 1(5) UWG does not turn that assessment into a general pre-publication clearance. In a dispute, the statutory rule on proof of factual advertising claims may become relevant. In practical terms, businesses should document the report, model allocation and advertising version before publication so the basis of the statement remains traceable.
A test result belongs to the product that was actually examined. The product family name is not always enough. Model number, generation, size, memory, engine, material, accessory, software version or a particular configuration may matter. The more strongly these features affect performance, the less readily an older or differently equipped test supports advertising for another model.
Successor models and variants need particular care. A successor cannot automatically be advertised with the result of its predecessor. The same applies where a whole range is advertised even though only one version was tested. The product designation in the advertisement should therefore be traceable to both the report and the product actually offered.
Short forms such as “test winner” or “top rating” can also broaden the message. They must not suggest that every variant or the current product range was examined where the report concerns only one specific version.
A test is a snapshot under the conditions described in the report. The product, market, standards, comparison group or methodology may change between the test and the advertisement. That does not automatically make the result useless, but the advertising must make clear which temporal and factual status it represents.
Currentness matters especially where the advertisement uses terms such as “current”, “new”, “today” or a present-tense leading position. A dated result can support such a statement only where the time context is clear and later changes are not concealed. An old report must not silently appear to be a new investigation.
The file should therefore include the test date, report publication date, products compared, product status at the time of advertising and any later changes. For dynamic products, record whether software updates, formulation changes or new production series affect the properties examined in the test.
The source should allow the audience to find and understand the test. Depending on the advertising format, the testing body, test name, issue or date, tested model and an accessible reference may be needed so the claim is not detached from its context. A magazine logo or abbreviation alone does not always explain the scope of the examination.
The advertisement must not extract a stronger statement from the report. A good result in one category is not automatically an overall victory. A positive result subject to several limitations must not be presented as an unrestricted leading position. Footnotes also need to be clear, legible and meaningfully connected to the main claim.
Preserve the complete source, relevant report, wording, graphic elements and exact reference used in the advertisement. The article on pressure and influence in advertising addresses a different focus, but it also shows why the actual overall impression matters rather than one isolated sentence.
A reliable approval file contains the complete report or verified source, the exact product and model designation, the test date and test conditions. Add every planned advertising version, audience, channel and internal approval. This makes it possible to establish later which claim was actually published.
Review each advertising element separately and in combination. Headline, stars, ranking, test logo, image and fine print may create a broader message together than the body text alone. Record which limitation is immediately visible and which information is available only through a link.
A product or campaign change requires a new review. An updated report, a new model or another test issue must not silently be inserted into existing advertising. Keep earlier versions as historical records so the publication period and factual basis at that time remain clear.
After a challenge, first preserve the advertisement actually used, the publication period and the complete source. Then bring together the product status, model number, report, internal approval and later changes. A correction may be operationally sensible, but it does not replace documenting the original version.
Assess separately whether the challenge concerns the accuracy of the result, its transfer to the advertised model, its currentness, the source reference or the presentation. These questions require different evidence. A single screenshot or a general reference to a report does not automatically answer all of them.
Who may pursue a competition law violation depends on the specific cause of action and the position of the person or organisation concerned. The article on standing to seek an injunction under section 14 UWG addresses that question separately. This article remains limited to the evidence and presentation of test results.
Age alone does not decide the issue. The test subject, conditions, product status, advertising claim and the impression created by the time reference all matter. A dated result must not appear to be a current investigation where the product or comparison basis has changed.
Not automatically. Model number, equipment, software, material and other performance-relevant features must be compared. The greater the difference, the less readily the result can be transferred to the new model without a clear qualification.
There is no single answer for every advertising format. The source and scope of the claim must be clear enough for the audience to understand the testing body, test subject and time context. A test logo alone may not be sufficient.
Assess the overall impression, pressure and the specific advertising material separately.
Review standing, injunction claims and the position of the claimant.
Organise the claim, audience, source and supporting evidence.
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