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Case detail



Directive article Article 2 (d)
Annex I al1 1.
Annex I al1 17.
National ID 2S-17
Country Lithuania Decision date 04/07/2011
Common name Decision type Administrative decision, first degree
Court Lietuvos Respublikos konkurencijos taryba (Vilnius) Plaintiff(s)
Court translation Competition Council of the Republic of Lithuania (Vilnius) Defendant(s) UAB “Kristalė“
Subject cure
Keywords black listdysfunctionseconomic behaviourfalse impressionhealth and safetyillnessmalformationsmaterial distortionmisleading advertisingmisleading commercial practices

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Headnote

Falsely claiming that a product reduces pain, slims, stiffens, improves sleep, decreases wrinkles or otherwise improves health condition, constitutes a per se misleading commercial practice by falsely claiming that a product is able to cure illnesses, dysfunction or malformations (blacklisted under item 17 of the UCP Directive).

Facts

Through a website, the defendant advertised a number of products, including clothes and cosmetics, as having various positive effects on health.

The features attributed to the products by the advertisement included reducing pain, slimming, stiffening, improving sleep, decreasing wrinkles or otherwise improving condition.

In reality, the defendant could not produce any evidence of such product characteristics.

Legal issue

Does falsely claiming that a product reduces pain, slims, stiffens, improves sleep, decreases wrinkles or otherwise improves health condition, constitute a per se misleading commercial practice by falsely claiming that a product is able to cure illnesses, dysfunction or malformations (blacklisted under item 17 of the UCP Directive)?

Decision

The Council concluded that the defendant’s statements were misleading as the defendant did not present evidence that could objectively prove the alleged effect of the products on human health and body.

Further, the Council referred to the Lithuanian Law on Advertising pursuant to which an advertisement is in all circumstances regarded as misleading if it falls under the black list of prohibited commercial practices, in this case particularly referring to the prohibition on falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

The Council followed the European Commission’s Guidance on the Implementation / Application of the UCP Directive by recalling that the said prohibition is also applicable to products or services, such as cosmetics, aesthetic treatments, wellness products, and similar, which are intended to produce certain improvements of the physical conditions of a human body. As noted in the Guidance, in order not to trigger the prohibition, traders must be able to substantiate any factual claims of this type with scientific evidence.

The Council further noticed that an average consumer was likely to understand the advertised effect as treating or improving physical condition. The defendant did not present any evidence proving the advertised effect of the products on human health and body.

Following the conclusions of competent authorities, it was noted that overweight is an illness and, therefore, the statements concerned must be considered relating to effect human health. As the defendant did not present any evidence proving the advertised effect, the advertisements in questions were considered to be a false claim that a product can affect physical conditions of a human body and, respectively, misleading.

Finally the Council recalled that it is not necessary to prove the impact or possible impact of the said blacklisted practice on an average consumer’s economic behavior. To determine the violation, it is sufficient to prove that (i) the presented information is an advertisement, (ii) the trader has ordered publication thereof and (iii) it falls under the "blacklisted" provisions.

  URL Decision Decision full text
EN N/A
LT http://www.konkuren.lt/index.php?show=nut_view&nut_id=1284

Result

A number of the defendant’s advertisements were concluded to be an unfair commercial practice and a misleading advertising. A fine of LTL 3,400 (approx. EUR 971) was imposed on the defendant. 

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