Mask crime: the court should clarify the “Made in Austria” designation. VKI is suing on behalf of the Ministry of Social Affairs.

12 noon, March 19, 2021

The Association for Consumer Information (VKI) has filed a lawsuit on behalf of the Ministry of Social Affairs the misleading advertisement of FFP2 masks of Hygiene Austria as “Made in Austria” according to the consumer protectionists in front. The Vienna Commercial Court should clarify whether masks bought in from China may be sold as “Made in Austria”. Hygiene Austria had partially outsourced mask production to China, but advertised production in Austria.

Consumers must be able to rely on labels in all areas, emphasizes Consumer Protection and Social Affairs Minister Rudolf Anschober (Greens) on Friday in a broadcast. “When buying Covid protection products, you should be able to rely on the fact that what the advertising promises will actually be kept.” Since the beginning of the pandemic, the VKI has been taking action against misleading measures in all areas of the pandemic on behalf of the Ministry and is also conducting numerous test cases to clarify open questions in consumer law.

Clarification of the court

With an action for an injunction under the UWG (Act against Unfair Competition) a clarification of the court should be achieved, When “Made in Austria” can be advertised and when not, explains the head of the legal department at VKI, Thomas Hirmke, opposite the APA. According to the VKI, masks made in China may not be labeled and sold as “Made in Austria”.

From a legal point of view, it depends on the expectation of the average consumer. There is no clear legal requirement in this regard. However, a model alone is not enough to be able to present a product as indigenous, at least according to the previous case law in Germany. Accordingly, an FFP2 mask made in China according to an Austrian model would not be a mask “Made in Austria”.

Domestic added value, 200 jobs

In public, Hygiene Austria, a joint venture between Palmers and Lenzing, highlighted the domestic production of FFP2 masks as a special quality feature and emphasized that the security of supply, but also the independence of Austria through the purchase of high-quality masks in the focus of Activity. In addition, reference was made to domestic added value and the existence of 200 jobs in Austria, according to the VKI.

It was therefore specially designed that the masks of Hygiene Austria would be “Made in Austria” products. From the VKI’s point of view, this aroused special expectations among consumers. In fact, as Hygiene Austria later announced, in some cases a Chinese contract manufacturer was involved in the production of FFP2 masks commissioned according to the Hygiene Austria prototypeto cope with a surge in demand.

Domestic goods – or not …

“Consumers have placed their trust in a special way that with their purchase they are supporting Austrian production and receiving local goods. This trust has been massively disappointed, as numerous complaints make clear. From our point of view, it is misleading to call a mask made in China according to an Austrian model a ‘Made in Austria’ mask. It must be clarified in court whether such a procedure is legal, “says Hirmke.

The VKI is also examining complaints that Palmers and Hygiene Austria would not take back FFP2 masks that have already been sold. However, there has not yet been any complaint in this regard.