[jstummbillig]

> They can because that statement isn't binding[...]

What do you mean? In the EU and the US, there is no law that allows you to say things, and then do other things, and be protected from having the difference mean something in court of law. A court can very well decide that what you provably said/wrote/claimed is legally pertinent, without it being part of any ToS.

Which I assume you understand, hence I am very confused about the confusion here.

If what you really mean is "nobody would care enough to take them to court", that's a different and somewhat ironic point, because if nobody takes legal action, it would not matter anyway where the violation occurs.

Any statement can be deemed legally binding by a court, which is the authority concerned with questions of legality. If you think in this specific case this would not apply, it is at least completely unclear, why.