The manufacturer of a cake filled only 50 to 60% of the packaging with the cake, i.e. far below the capacity of the carton.
The cardboard packaging contained five pieces of cake individually wrapped in plastic foil. In between and upwards were empty spaces. The film packaging of the individual cake pieces includes warm air, which increases the volume of the film packaging immediately after sealing (about 10 %).
When inserting the individual packages into the outer carton, the robot used for this purpose requires a certain distance between the cake pieces. If, on the other hand, the individual packages are pushed or pressed together manually, there would be room for a sixth cake piece.
On one narrow side of the outer carton, there was a reference to the total contents of 150g. When shaking the outer carton, a movement of the cake pieces could clearly be heard, however the individual cake pieces or the spaces between them could not be felt.
The Austrian Supreme Court qualified this as misleading as to the volume of the goods contained in the carton.
The indication of the filling weight does not eliminate the misleading effect of the package size because the volume does not correlate with the weight of the product in a ratio which is recognisable to the average consumer. The manufacturer should have better informed the consumer.
The fact that the volume of the individual packaging was originally larger due to the inclusion of air which only slowly escaped did not justify the deceptive packaging either. In the opinion of the Supreme Court, there was no technically compelling necessity for this.
The oversizing of the packaging therefore misleads consumers. What matters is whether the average consumer, reasonably well informed and critical, gains an impression of the contents of the packaging which is not factual and likely to induce him to take a transactional decision which he would not have taken otherwise. That misleading impression may be removed by a sufficiently clear and easily visible indication.
OGH 29. 1. 2019, 4 Ob 150/18i