Article 6 1.
Article 6 1. (d)
|National ID||Decision no. DDK- 2/2011|
|Common name||Decision type||Administrative decision, first degree|
|Court||Prezes Urzędu Ochrony Konkurencji i Konsumentów w Warszawie||Plaintiff(s)||The President of the Office of Competition and Consumer Protection in Warsaw|
|Court translation||The President of the Office of Competition and Consumer Protection in Warsaw||Defendant(s)||Agros Nova sp. z o.o. with its registered office in Warsaw|
|Subject||misleading commercial practices|
|Keywords||labelling, misleading advertising, price, price information, price reductions, promotional sales|
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It is an unfair commercial practice to suggest to consumers that if the consumer purchases specific, promotional products, the consumer obtains unique financial benefits such as a free amount of the product, whereas in reality the products are offered in such manner on a long term basis.
The defendant is a limited liability company, submitted in the register of entrepreneurs, which provides consumers with prepared and preserved vegetables and fruits. Defendant marketed the following products of the Łowicz brand: meatballs in tomato sauce, 'Russian kettle', spaghetti sauce, Chinese sauce, Mexican sauce, Bolognese sauce, tomato sauce and tomato puree.
Some of the above products were, in the past few years, offered for sale only in promotional packages, i.e. a package that was bigger than the standard one with an indication of the amount that was added to the packaged for free. Most of the products were offered in two different-size packages but were not available in a standard (i.e. non-promotional packages).
Is it an unfair commercial practice to suggest to consumers that if the consumer purchases specific, promotional products, the consumer obtains unique financial benefits such as a free amount of the product, whereas in reality the products are offered in such manner on a long term basis?
The court ruled that the defendant committed an unfair commercial practice that consisted in suggesting to consumers that in case they purchase a specific, promotional products of the Łowicz brand, they obtain unique financial benefits such as a free amount of product, whereas in reality the defendant offers these products in promotional packages only on a long term basis.
In the court's opinion said commercial practice distorts or is likely to distort economic behavior of the average consumer whom the invitation to purchase the product reaches or to whom it is addressed. In determining the unfair character of the practice, the court pointed out that the products of the Łowicz brand offered for sale by the defendant, were offered exclusively using the so-called promotional packages.
The court stated that the consumer may be convinced that this type of promotional offer is only available for a certain period of time and that after this period of time the consumer will no longer have the possibility to gain such financial benefits. In the case in question, neither the goods nor the offer changed during the last few years.
The court came to the conclusion that consumers could have been misled as a result of this kind of marketing practice, which could have created a false impression for the average consumer. According to the court, the consumer could have been convinced that he/she was gaining a unique price advantage. The offer concerned seems more attractive to the consumers and can persuaded them to buy the Łowicz branded products; in other circumstances consumers would possibly have no interest in such products.
In determining the fact that the defendant's practice violated the collective interest of the consumers, the court indicated that in the case at hand, there is no doubt the actions of the defendant were directed to a potentially unlimited number of consumers. Moreover, the defendant's offer did not indicate that it was directed to a special, limited group of consumers. All consumers, as potential consumers of the defendant, were exposed to the defendant's unfair practice. The defendant's actions could have infringed the right of consumers to fair and true information.
|URL Decision||Decision full text|
The practice used by the defendant was found to be unfair. The President ordered the defendant to discontinue to use the challenged practice and to withdraw the promotional packages from the market.
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