The electric car manufacturer Tesla lists “CO2 emissions 0g/km” on its website. This is misleading, says the Federal Association of Consumer Centers (VZBV). He sued Tesla for unfair competition and lost in the first instance. However, the association prevailed against Tesla’s advertising with the “Guard Mode” surveillance program.
Tesla’s sentry mode uses the built-in cameras to covertly video monitor the area when the vehicle is parked. This is illegal in the EU. If you switch on the guard mode, you risk a fine. “However, this information was missing from the Sentinel mode advertisement”, said VZBV board member Ramona Pop on Tuesday, “Tesla has now issued a cease-and-desist declaration after the hearing before the Berlin Regional Court and is no longer allowed to advertise in this way. The procedure for the guard mode is thus ended.” The court no longer had to decide on the guard mode.
However, the VZBV is appealing against the court’s decision that it is not misleading when Tesla speaks of “0g CO2/km”, describes its mission as “accelerating the transition to sustainable energy” or describes its credo as an “emission-free future”. This is despite the fact that a lot of CO2 is released during the manufacture of the vehicles, especially the batteries, electricity production is usually also CO2-intensive, and Tesla earns billions from the sale of emission certificates. Buyers of these certificates are usually other car manufacturers who sell new cars with higher CO2 emissions than they allow. In this respect, every Tesla purchased also enables the sale of fuel guzzlers.
Tesla’s ecological footprint is irrelevant
It is undisputed that the specification 0g CO2/km is mandatory according to the German Car Energy Consumption Labeling Ordinance (PKW-EnVKV). It is disputed whether Tesla is obliged to add further information to its vague advertising statements on the one hand and the specific indication of “0g” in order to avoid misleading consumers. It is not obliged to do this, says the Berlin Regional Court (Az. 52 O 242/22 of March 21, 2023).
Admittedly, environmentally-related advertising statements are subject to “strict requirements and extensive duties to provide information because of the strong emotional advertising power and because of the (…) mostly low level of factual knowledge of the public”. “Every single statement made about environmental friendliness must make it clear which environmental advantage is to be emphasized,” the court initially stated. However, paragraphs 5 f. UWG (law against unfair competition) only contained a ban on misleading, not an obligation to provide active information.
For the average Tesla buyer, it is irrelevant that the manufacturer makes money from the sale of emission certificates. The buyer “does not want to participate in the company (…), but rather buy a vehicle,” writes the district court. Tesla does not claim in its advertising that no CO2 is emitted during production. And: “The buyer is concerned with their own ecological footprint, not with the (Teslas).”
“The VZBV will appeal against the verdict,” Pop comments succinctly.
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