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Case detail

B a c k

Directive article Article 5 2.
Article 7 1.
National ID Decision no. RWR-12/2011
Country Poland Decision date 01/07/2011
Common name Decision type Administrative decision, first degree
Court Prezes Urzędu Ochrony Konkurencji i Konsumentów, Delegatura we Wrocławiu Plaintiff(s) The President of the Office of Competition and Consumer, Delegature in Wrocław
Court translation The President of the Office of Competition and Consumer, Delegature in Wrocław Defendant(s) E. Wedel sp. z o. o. with its registered office in Warsaw
Subject misleading commercial practices
Keywords confusing marketingfalse impressionfalse informationmaterial informationmisleading advertisingpackagingprize promotionprizespromotional salestime-limited promotions

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Headnote

The mentioning of a prize competition on the outside of a product packaging and the mentioning of information on the term of the competition on the inside of the packaging, exposing a consumer buying the product to the risk of no longer being able to participate in the competition, constitutes an unfair commercial practice.

Facts

The defendant manufactures cocoa, chocolate and sugar confectionery.
Defendant carried out a promotional lottery called: "Sięgnij po swój kawałek nieba" ("Reach for your piece of heaven"). The lottery applied only to the products called "Ptasie Mleczko". The rules of the lottery where established in the lottery terms and conditions. The lottery was launched on 1 February 2010 and ended on 25 August 2010. However, the consumers were able to apply to participate in the lottery only until 31 May 2010.
On the packages of "Ptasie Mleczko", the defendant informed consumers about what kinds of prizes could be won in the lottery. However, the defendant did not specify on the packages the duration of the promotion. Information on the validity term of the lottery was placed inside of the packaging. The promotional code which entitled the consumer to participate in the promotion was also placed inside of the packaging. As a result, a consumer could only know the details of the promotion after unpacking the purchased product.
 

Legal issue

Does the mentioning of a prize competition on the outside of a product packaging and the mentioning of information on the term of the competition on the inside of the packaging, exposing a consumer buying the product to the risk of no longer being able to participate in the competition, constitute an unfair commercial practice?

Decision

In assessing the unfair character of the practice, the court pointed out that the average consumer may assume that when buying a "Ptasie Mleczko" product, the consumer can participate in the lottery.  The possibility of obtaining additional benefits, i.e. the possibility of winning a lottery, may affect the consumer's decision to buy the product. However, only after opening the promotional package, the consumer was informed that the deadline to participate in the promotion could have already been passed.
The court emphasized that it is the advertising message the trader sent to consumers that is very important in this case. On the promotional packages of "Ptasie Mleczko", the defendant presented information on the lottery and the related prizes. Thus, consumers buying the products, could reasonably expect to participate in the lottery and possibly win a prize. The lottery was conducted to attract consumers' attention, arouse interest and consequently convince them to buy "Ptasie Mleczko". Moreover, the court noted that the defendant conducted a very broad information campaign.
In summary, according to the court, the average consumer buying "Ptasie Mleczko" products, has a valid right to expect that he/she can take part in the lottery, hence has a chance to win attractive prizes. As a result, the court ruled that therefore, the lack of  information about the duration of the promotion, misleads consumers.
 

  URL Decision Decision full text
EN N/A
PL http://decyzje.uokik.gov.pl/dec_prez.nsf/xsp/.ibmmodres/domino/OpenAttachment/dec_prez.nsf/71469CE4CBD1F7D1C12578DF00321FC8/Body/Decyzja%20nr%20RWR%2012-2011%20z%20dnia%201%20lipca%202011r.pdf

Result

The practice used by the defendant was found to be unfair. The court ordered the defendant to stop using the challenged practice and imposed upon the defendant a financial penalty amounting to PLN 72, 917.

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