Legal perspectives: Which product information is allowed behind a QR code?

The consumer goods sector is witnessing a significant shift with the integration of QR codes on product packaging. This change is prompting essential questions about the kind of information these codes can convey and what information must be physically present on the products. This article discusses the regulatory implications and practical aspects of utilising QR codes for sharing product information with consumers.

QR Codes and Consumer Information

Consumers traditionally received product information directly from labels or printed packaging. QR codes represent a change, facilitating access to extensive data about the product, including usage instructions, environmental claims, or recycling information.

However, a fully digital approach might exclude those without smartphone access, posing a question about which details companies can ethically place behind a QR code and what information must be readily visible to all consumers.

The legal framework around this issue is still developing due to the novelty of QR codes, with courts attempting to determine the extent of companies' obligations in this context.

Environmental Benefits vs Regulatory Implications of QR Codes

One of the compelling arguments for QR codes is their potential to reduce paper waste by transitioning to digital user manuals and other documents, a notion supported by a 2014 court case that validated supplying a digital camera's manual via a CD. The decision underscored that even technology with less than universal accessibility could be an acceptable platform for providing information.

However, the increasing reliance on QR codes comes with regulatory challenges, particularly concerning consumer protection laws. If crucial safety information is only available through a QR code, it could impinge on the rights of those without smartphones or familiarity with this technology.

The German Product Safety Law (ProdSG) emphasises that products must not present any health or safety hazards with typical usage and demands user manuals in German upon a product's market entry. Yet, the law does not address the specific format of these instructions, leaving a gray area in terms of digital versus printed guidance.

Recent Court Decisions in Germany

The interpretation of QR codes' legality and appropriateness in product labelling has been a subject of discussion in German courts. On July 6, 2023, the OLG Düsseldorf (Az. 20 U 152/22) endorsed the use of QR codes for additional information where space is limited, like magazine advertisements. However, this endorsement did not extend a universal application to all consumer packaging.

In agreement, the LG Stuttgart (Az. 53 O 169/22) ruled that essential product information must be physically present on packaging unless there are justifiable space limitations, highlighting that 21% of consumers cannot access digital data due to a lack of smartphones.

On July 26, 2023, LG Karlsruhe (Az. 13 O 46/22 KfH) allowed the use of QR codes but mandated that packaging must make consumers aware of additional information available online.

A significant development occurred on May 23, 2023 (Aktenzeichen 312 O 126/22), with Beiersdorf AG committing to greater transparency in its advertising practices following an agreement with Deutsche Umwelthilfe (DUH). The firm consented to using QR codes or web links to provide in-depth information on their carbon offset initiatives, preventing potential legal penalties.

The Future of QR Codes in Light of Legal Interpretations

Perhaps the strongest indication for the expanding use of QR codes is at EU level, where new regulation indicate the EU’s openness to the use of the QR codes to make crucial information accessible to consumers.

EU Regulation 2021/2117 permits wines and aromatised wine products to use digital "e-labels" for conveying ingredient and nutritional information, accessible via QR codes or links.

Another example is the new EU regulation for the digital labeling of fertilizers, adopted by the European Council on July 22, 2024, which allows suppliers to use digital labels like QR codes and barcodes to provide essential product information. This regulation aims to improve label readability and simplify requirements, reducing costs, bureaucratic barriers, and environmental impact. Despite the shift to digital solutions, physical labels remain mandatory to ensure accessibility for all consumers, especially those with limited digital access.

The digital labels link to comprehensive product information, which must be freely accessible for at least ten years, without requiring any login or password. For bulk goods, key information must be displayed both digitally and physically at the point of sale. The regulation, which aligns with EU practices for digital labeling in other sectors such as batteries, is expected to yield annual cost savings of around €57,000 for large companies and €4,500 for SMEs, as described in a post by the European Council.

Additionally, the draft EU Green Claims Directive (Art. 5 (6)) states:

Information on the product or the trader that is the subject of the explicit environmental claim and on the substantiation shall be made available together with the claim in a physical form or in the form of a weblink, QR code or equivalent.

In conclusion, while current legal positions show varying degrees of acceptance, the trajectory indicates a growing inclination towards QR codes in product labelling. The ongoing challenge is ensuring this digital shift coincides with comprehensive consumer protection measures and accessibility.