EMPCO old stock:

Rescue at the last

minute?

22. September 2026

of

Clemens Pfitzer

Starting September 27, 2026, the new rules for environmental claims will also apply to packaging that has long been on the market. Can a § 15b UWG provision announced at short notice still protect existing EmpCo inventory from cease and desist letters? And will it even come into effect in time?

Why hasn’t there been a grace period for existing EmpCo inventory so far?

There is currently no transitional provision for goods that were produced or shipped before the effective date. The EmpCo Directive tightens the requirements for advertising that includes environmental and sustainability claims. It entered into force on March 26, 2024, and had to be implemented by March 27, 2026. It is applicable as of September 27, 2026. Germany implemented it through the Third Act Amending the Act Against Unfair Competition. The law was promulgated on February 19, 2026, and will generally take effect on September 27, 2026.

According to the European Commission, the directive does not regulate the products themselves, but only how they are presented to consumers. As of the effective date, therefore, environmental claims on goods that have already been manufactured, ordered, or delivered must also comply with the new rules. In its updated Q&A from June 2026, the Commission suggests practical solutions such as placing stickers over the disputed claim or adding supplementary information at the point of sale.

The Bundestag was aware of the problem. During the legislative process, the Legal Affairs Committee recommended a resolution on December 17, 2025, calling on the federal government to demand a one-year phase-out period at the European level. At the time, the committee explicitly ruled out the possibility of a separate German solution.

So what’s the plan now?

It is reported that the SPD and CDU/CSU parliamentary groups now intend to establish a type of phase-out provision shortly before the provisions of the EmpCo Directive take effect on September 27, 2026. An official text of the proposed § 15b of the UWG has not yet been made available. However, it is reports…that the coalition parties intend to include the provision in the Act on the Modernization of Design Law via an amendment. The Bundestag will vote on this act on September 24, 2026. The Bundestag’s website announces a recommendation for a resolution by the Legal Affairs Committee but does not mention any change to competition law. All of the following information should therefore be viewed with caution at this time, as it is based on unverified reports.

According to these reports, the provision is intended to apply only to claims for injunctive relief, and specifically only for violations of the new EmpCo rules. Only goods placed on the market before September 27, 2026, are to be covered. Such claims may be asserted only in good faith—that is, in accordance with the principle of fair conduct—and in a manner that respects the principle of proportionality. The assessment is to take into account the severity of the violation, the company’s efforts to remedy the situation, as well as the costs and environmental impacts of removal. The rule is set to remain in effect until September 26, 2028.

If that is the case, the violation would still constitute a legal violation. The provision would only affect whether and to what extent a court would enforce the claim for injunctive relief. Possible outcomes could include, for example, additional disclosure requirements, a court-ordered grace period for selling off inventory, or, in extreme cases, the dismissal of the claim.

Can Section 15b of the Unfair Competition Act (UWG) take effect by September 27, 2026?

This would only be possible in time if a very tight schedule were followed. After the Bundestag, the Bundesrat must consider the bill. This is followed by countersignature by the Federal Government, promulgation by the Federal President, and publication in the Federal Law Gazette.

The Bundesrat will meet on September 25, 2026—the day after the vote in the Bundestag. As of September 18, 2026, the Design Rights Act is not on its agenda. However, items may be added to the agenda until the start of the session, and the Bundestag or the Federal Government may request shorter deadlines. If this is not successful, the Bundesrat will not meet again until October 16, 2026.

Even if the matter were taken up on September 25, 2026, only Friday and the weekend would remain for countersigning, issuance, and promulgation. We therefore do not rule out the possibility that the law could take effect by September 27, 2026, but consider it unlikely. It is more likely that there will be a gap of several weeks during which cease and desist letters can already be issued under the unchanged legal framework.

It remains to be seen whether the new rule will be helpful in proceedings already underway. According to established case law, a claim for injunctive relief directed toward the future exists only if the conduct is unlawful under the law in effect at the time of the court’s decision. The courts have yet to clarify whether this principle also applies to a rule that concerns not the prohibition itself, but only its enforcement.

Which existing cases would be covered, and which would not?

Clear-cut cases

• Online advertising.
  Store pages, marketplace listings, social media posts, and newsletters are not considered goods. According to published reports, they would not be subject to the new regulations. European consumer protection authorities also assume that online statements do not pose the same transition challenges as printed packaging.
• Packaging on delivered goods.
  Products delivered to retailers before the effective date are at the heart of the proposed regulation. The key question here is whether relabeling, recall, or destruction would be proportionate.

Borderline Cases

• Goods in our own warehouse.
  Without the text of the law, it is not yet possible to determine whether goods that are still with the manufacturer on September 27, 2026, have already been placed on the market.
• Printed promotional materials.
  Catalogs, flyers, and display stands are advertising, not the products themselves. Based on previous reports, they are likely not covered.
• Trademark names on packaging.
  In the Commission’s view, trademark and product names can also constitute environmental claims. We have already reported on the risks to trademarks. If such a trademark name appears on existing inventory, it would likely share the same fate as the packaging.
• Services.
  The proposed rule is intended to apply only to goods. For services, the cut-off date would remain in effect.

How does this align with EU law?

In the Commission’s view, the Unfair Commercial Practices Directive, as amended by the EmpCo Directive, is, in principle, fully harmonized. Member States may therefore introduce neither stricter nor more lenient rules. With regard to sustainability labels, the Commission also emphasizes that the directive does not provide for a transition period beyond September 27, 2026.

In June 2026, European consumer protection authorities published a joint statement regarding existing stock. According to this statement, authorities may proceed in a phased manner and refrain from requiring the destruction or recall of such stock. However, the document is not legally binding and is intended for authorities. In Germany, it is primarily competitors and trade associations that enforce competition law. This document does not apply to them.

Austria has chosen a different path. There, civil claims regarding goods can be asserted for three years only if the goods are placed on the market after September 27, 2026. Greenpeace Austria has announced that it will file a complaint with the European Commission over this matter. The German version does not rule out claims but requires a case-by-case assessment. This is likely to be less vulnerable to challenge under EU law. However, the European Court of Justice would have the final say.

Specific Risks

• Cease-and-desist letters from day one.
  Starting September 27, 2026, competitors and trade associations will be able to issue cease-and-desist letters regarding impermissible environmental claims. This also applies during the potential gap until § 15b of the Unfair Competition Act (UWG) takes effect.
• Hasty cease-and-desist declarations.
  Anyone who signs a broadly worded cease-and-desist declaration is contractually bound. A subsequent statutory balancing test is unlikely to alter this contractual obligation. This applies in particular if the declaration also covers inventory on hand.
• Administrative fines.
  The law provides for fines in cases of widespread violations of consumer interests. For companies with an annual turnover of more than 1.25 million euros, fines of up to 4 percent of turnover in the affected EU member states are possible. Since, according to reports, Section 15b of the Unfair Competition Act (UWG) is intended to apply only to injunctive relief, it is unlikely to cover administrative fine proceedings.

Unresolved questions of interpretation

• Wording and EffectiveDate.
  Neither the text nor the effective date has been finalized. Until the regulation is officially promulgated, all plans remain tentative.
• Placed on the market.
  It is currently unclear whether this refers to goods in stock, goods held by wholesalers, or only goods in retail stores.
• Weight of the balancing criteria.
  Only the courts will determine what efforts a company must demonstrate and when costs are disproportionate.
• Cease-and-desist letters issued during the transition period.
  It remains unclear whether a cease and desist letter issued before the law took effect was justified and whether it triggers costs.
• Compatibility with EU law.
  Whether a national balancing test is compatible with a fully harmonized directive remains an open question.

How to Prepare

• Update your online presence by September 26, 2026.
  Check youronline store, marketplaces, product data, and social media for general environmental claims and your own seals. The planned new regulation won’t help here either.
• Document deliveries.
  Save delivery slips and inventory management data that show which batches were delivered and when. This evidence will likely be crucial when Section 15b of the UWG takes effect.
• Implement and document corrections.
  The commission also lists stickers and notices at the point of sale as appropriate measures. Keep a record of what actions you took and when, as well as what it would cost to destroy the materials.
• Withhold printed promotional materials.
  Stop the distribution of catalogs and flyers containing problematic statements. Issue written instructions to sales and trade show teams.
• Carefully review cease and desist letters.
  Do not sign a pre-drafted cease and desist declaration without reviewing it first. Any defense against the cease and desist letter should take into account the potential new regulations from the outset.

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