22 Apr 2021
Hazardous Products Online
Art 48, CLP
Chemical products meant for the general public are nowadays commonly advertised and/or sold via the Internet. While it is easy and convenient for consumers to search and buy products this way, the party announcing the products needs to comply with special requirements for chemicals, in addition to the requirements applying to the advertisement or trade for consumer products. Most important in this regard is Article 48, CLP. Please note that other requirements might apply, depending on your products, business model and the national legislation. In certain Member States products with specific hazards cannot be legally sold via the Internet.
Article 48, CLP: Advertisement
- Any advertisement for a substance classified as hazardous shall mention the hazard classes or hazard categories concerned.
- Any advertisement for a mixture classified as hazardous or covered by Article 25(6) which allows a member of the general public to conclude a contract for purchase without first having sight of the label shall mention the type or types of hazard indicated on the label.
While the content of advertisements for substances is well defined in paragraph 1, for mixtures paragraph 2 is blurry on what information needs to be provided. The term “type of hazard” is not further defined under CLP. ECHA Q&A 0273 is clarifying how the Member States authorities agreed to interpret the requirements:
“The type of hazard is best specified by providing the relevant hazard statements, including the supplemental hazard statements as referred to in CLP Article 25(6). It is also recommended that the hazard pictograms and signal word are mentioned, where appropriate, to alert the reader to a potential hazard.”
These interpretation and the recommendations agreed at EU level might be mandatory in some Member States. This is the case of Germany (see BAuA Q&A 374).
Who is checking?
It is to expect that due to the Corona situation, when most shops are closed and the inspectors need to reduce their contacts to a minimum, the inspectors focus on checking online shops, which can also be done from home office. In case of non-compliances found, depending on the Member State and the severity of the case, a penalty might be applied or only a warning and advise given. In any case, it is likely that the inspectors would block the offers until these are brought into compliance, which would have financial consequences.
Another consequence of non-compliant offers in online shops could be the receiving of notices with financial claims from parties monitoring the Internet for detecting any mistakes related to the advertisements or offers. Such notices are legal according to the consumer protection legislation and shouldn’t be ignored, even if the claims seem to be absurd or disproportionate. In such cases, it would be advisable to send back a formal objection, preferable prepared by a lawyer. An extreme example dating from April 2018 is the notice sent by Adolf Würth GmbH & Co. KG to a company distributing its products via eBay, which included claims in value of 7.500€ / infringement, plus 90.000€ notice costs. This case was described by Alexander Bräuer, specialised lawyer for the protection of industrial property rights, from the lawyer’s office Weiß & Partner in Esslingen.
Big e-commerce platforms like Amazon and eBay adapted their offer formats to allow the display of the legally required information and established procedures to support the sellers to comply, but also to disable the offers, if flagged by the authorities as non-compliant. Independent shops have to take care of the compliance themselves. ALSTER can support you to design compliant websites and online shops.