he treatment of existing stock had been particularly problematic. Neither the EmpCo Directive nor the German implementing legislation provided for a general run-off or sell-off period for goods already in existence. What, then, happens to goods that had already been placed on the market before the relevant date and whose labelling or packaging contains claims that are no longer permissible under the new law?
The German Bundestag has now reacted at short notice. On 24.09.2026, it adopted the introduction of a new Section 15b UWG. The provision is intended to apply with effect from 27.09.2026 and to cease to have effect on 27.09.2028. The legislative procedure has, however, not yet been fully completed.
No general sell-off period
Section 15b UWG does not create a general sell-off period. Nor does it render claims that are unlawful under the new law retrospectively permissible in respect of existing stock.
Rather, the provision addresses the legal consequences. Claims for remedial action and injunctive relief in respect of certain EmpCo infringements concerning goods that had already been placed on the market before 27.09.2026 are to be enforceable only in accordance with the principle of good faith and having regard to the principle of proportionality.
In each individual case, particular account is to be taken of the seriousness of the infringement, the steps already taken by the undertaking to remedy the infringement, the costs thereby incurred and the environmental impact associated with remedial action.
According to the explanatory memorandum, this proportionality assessment may lead to different outcomes. These may include additional information obligations or a specific period within which existing goods may continue to be sold. In particular cases, a claim for injunctive relief in respect of existing stock may even be excluded entirely.
Only physical existing stock is covered
The special provision applies only to goods that had already been placed on the market before the relevant date. In practical terms, it therefore concerns in particular claims appearing on the product itself, on labels or on the packaging.
The background to the provision is precisely the risk that products or product packaging already manufactured and placed on the market might otherwise no longer be capable of being distributed, and might in some circumstances even have to be destroyed, because of an environmental or sustainability claim that is no longer permissible under the new law.
By contrast, separate advertising measures are not covered. Websites, online shops, social media channels, newsletters, catalogues and other forms of advertising have had to comply with the new EmpCo requirements since 27.09.2026. There is no additional transitional period for such communications.
Placing on the market is decisive
The relevant date is of particular importance. Section 15b UWG does not depend on whether goods were manufactured before 27.09.2026 or were merely held in the manufacturer’s warehouse at that time.
What matters instead is whether the goods had already been placed on the market before that date. The mere existence of stock at the manufacturer’s premises is therefore insufficient.
Businesses should accordingly be able to establish and document which goods had already been placed on the market before the relevant date and which goods were still within their own sphere of distribution at that time.
Caution when giving undertakings to cease and desist
The new provision must also be taken into account in connection with competition-law warning letters.
Anyone who, in response to an alleged EmpCo infringement, gives an excessively broad undertaking to cease and desist may become contractually bound beyond the scope of the statutory claim for injunctive relief, taking Section 15b UWG into account. The particular situation of existing stock should therefore expressly be considered when reviewing a warning letter and when drafting an undertaking to cease and desist.
Documentation may be decisive
Businesses should also ensure that appropriate records are maintained. The date and extent of placing goods on the market, the existing stock still available, measures already initiated to implement the necessary changes, as well as the costs and environmental consequences of subsequent alterations may be decisive for the proportionality assessment.
Section 15b UWG therefore does not resolve the issue of existing stock by means of a general run-off or sell-off period. Instead, it provides for an assessment on a case-by-case basis intended to prevent the enforcement of the new EmpCo requirements in respect of goods already on the market from producing disproportionate results.
Should you have any questions regarding the implementation of the EmpCo requirements, the treatment of existing stock or ongoing competition-law warning proceedings, we would be pleased to assist.