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Case detail

B a c k

Directive article Article 5 2.
Article 6 2. (b)
National ID 7J/2010
Country Portugal Decision date 19/04/2010
Common name Decision type Other
Court Primeira Secção do Júri de Ética Publicitária do ICAP (Lisboa) Plaintiff(s) Unilever Jerónimo Martins
Court translation First Section of the ICAP ("Civil Institute for Self-Regulation in Commercial Communication") Jury for Advertising Ethics (Lisbon) Defendant(s) L''Oreal Portugal
Subject product characteristics
Keywords labellingmisleading advertisingmisleading commercial practicesmisleading statementsproduct characteristicsself regulatory body

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Headnote

(1) Giving a product’s ingredient a different, fictitious name in advertisements and on the product packaging itself will mislead the consumer, even where an asterisk is used to draw the consumer’s attention to the ingredient’s real name.

(2) Even when the fictitious name described the ingredient’s characteristics more clearly for consumers, traders cannot use whatever synonyms they like in their advertising, based on whether those synonyms conveyed the product’s characteristics better. The use of an asterisk does not remedy this deception.

Facts

The defendant advertised its deodorant product as being "Enriched with Mineralite", a fictitious name for a substance in the deodorant that was actually named "Perlite", used in many other deodorant products marketed by other traders.

The plaintiff argued that such advertising is misleading, because the trader was presenting false information, which would likely cause the average consumer to take a transactional decision he would not have taken otherwise, due to the fact that he would have been misled into thinking that the deodorant contained an ingredient that no other deodorant product contained.
 

Legal issue

Is the use in an advertisement of a fictitious name for a common ingredient, even where its true name is also indicated on the advertisement by means of an asterisk, misleading to the consumer?

Decision

It was held that:

(1) Even though the defendant was right in saying that the name "Mineralite" describes the ingredient’s characteristics more clearly for consumers than "Perlite", this is a common concern for all technical names, and the court was not prepared to accept that traders could use whatever synonyms they chose in their advertising based on whether those synonyms conveyed the product’s characteristics better.

(2) The trader was advertising its product as being partly composed of an ingredient that does not exist, and the use of an asterisk did not remedy this deception.
 

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADAJZA45&AGIJPQ5v=ADEJYw4xVmotela9Xr1 Click here

Result

The defendant was ordered to cease its advertising campaign.

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