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Case detail

B a c k

Directive article Article 6 1. (b)
Article 6 1. (c)
National ID Prés. Commerce Nivelles 12 January 2011
Country Belgium Decision date 12/01/2011
Common name Decision type Court decision, first degree
Court Prés. Commerce Nivelles Plaintiff(s) Werner & Mertz Benelux Consumer SA
Court translation President of the Commercial Court of Nivelles Defendant(s) Henkel Belgium SA
Subject misleading commercial practices
Keywords advertisementenvironmental claimmisrepresentation

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Headnote

(1) An advertisement of a product, in which it is clearly stated that a certain advertised characteristic of the product only relates to certain parts of the product, does not mislead the consumer.

(2) An interview with a representative of the trader does not constitute a misleading practice, in case it is not certain whether that representative of the trader has approved the text that has been published.

(3) The packaging of a product, on which it is clearly stated that a certain characteristic of the product only relates to certain parts of the product, does not mislead the consumer.

(4) Advertisements, which boast the trader or the trader's products, do not mislead the consumer in case it can be proven by scientific reports that the trader or the trader's product are in fact the best on the market.

Facts

Plaintiff and the defendant are both companies active in the sector of producing and distributing maintenance and cleaning products, also including ecological products.

Defendant had advertised its products in Belgium and the plaintiff raised a number of issues with respect to these advertisements, including:

(1) in advertising leaflets, the defendant stated: "a green revolution with respect to cleaning products! Persil Eco Power [defendant's product] respects the environment without losing its cleaning power. This ecological cleaning product is as effective as other traditional cleaning products and starts reacting as from 20 degrees Celsius. All surface active components which perform the tasks and remove dirt are of vegetal origin. Fast, easy and 100% biodegradable. According to the plaintiff, who only produced the last sentence before court, the statement on the biodegradability was misleading for the average consumer;

(2) an interview with the marketing manager of the defendant which had appeared online in which the manager had stated: "It's a cleaning product which consists of components of vegetal origin and it is 100% biodegradable. ECO Power has the same cleaning power as traditional cleaning products which are made of petrochemical comments, but with the advantage of a more ecological production process … and 100% biodegradable.";

(3) the product packages stated "Persil Eco Power offers you the efficiency of Persil with more respect for the environment. Its formula is 100% composed of surface active components which are biodegradable and of vegetal origin. The packaging is 100% recyclable. Due to its efficiency in cold water, its formula allows you to realize energy benefits without having to compromise your washing result.". According to the plaintiff, much emphasis (by means of font, font size, etc.) on the notion of 100% biodegradable whereas less attention was paid to the fact that this biodegradable character was only applicable to certain components of the product, which according to the plaintiff was misleading. To back up its claim, the plaintiff produced several statements from anonymous internet users from which it concluded that defendant's statements were misleading;

(4) in certain advertisements, defendant had stated in relation to its product Persil Eco Power: "The first ecological cleaning product which does not lose its cleaning power" and "The first ecological cleaning product which does not compromise on performance". According to the plaintiff, it did not dispute that defendant boasts the quality of its products nor that it affirms that it is more efficient than its competitors. However, it disputes that by these advertisements, defendant creates the impression that other ecological cleaning products lose cleaning power and compromise their performance.

Legal issue

(1) Does an advertisement of a product, in which it is clearly stated that a certain advertised characteristic of the product only relates to certain parts of the product, mislead the consumer?

(2) Does an interview with a representative of the trader constitute a misleading practice, in case it is not certain whether that representative of the trader has approved the text that has been published?

(3) Does the packaging of a product, on which it is clearly stated that a certain characteristic of the product only relates to certain parts of the product, mislead the consumer?

(4) Do advertisements, which boast the trader or the trader's products, mislead the consumer in case it can be proven by scientific reports that the trader or the trader's product are in fact the best on the market?
 

Decision

(1) The court states that in relation to the advertising leaflet, the plaintiff had selectively only produced the last part of the commercial relating to the biodegradability, whereas in reality that statement should be read together with the rest of the advertisement. According to the court, the average consumer will make a link between the surface components and the biodegradability rather than thinking that the whole product is 100% biodegradable. As a result, the court did not find this commercial misleading.

(2) In relation to the interview with defendant's  marketing manager, the court stated that this article was not signed by the marketing manager. The article only alleges to cite the manager, without it being proven or even alleged by the plaintiff, that this text would have been subject to the manager's prior approval before publishing on the website. On the other hand, the court is of the opinion that even if one could defend that the commercial is misleading in that not the entire product will be 100% degradable, this incorrect information will not mislead the consumer in making an economic decision which he would not have taken otherwise. According to the court, a consumer is not likely to be influenced by a news article on the internet to take its transactional decision, as he will more likely be influenced on the moment he is at the shop and has to decide which product he will buy.

(3) Thirdly, as to the mentioning on the product package, the court did not take into account the anonymous consumer statements as it could not verify whether these were objective. In addition, the fact that certain statements are made, according to the court, is not sufficient to conclude that there is actually a danger that the average consumer will be misled. Further, the court was of the opinion that the message on the package was clear enough to inform consumers that the product was only 100% biodegradable only in relation to the surface active components.

(4) Lastly, in relation to the advertisements made by the defendant, the court was of the opinion that defendant indeed only boasts the quality of its products. According to the court, the message defendant brings is clear: its products are more effective than other "green" cleaning products. However, as defendant possessed scientific proof that its product was indeed more effective than other green cleaning produces, the court did not see any infringement on misleading practices.
 

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Result

Plaintiff's actions relating to the misleading character of the defendant's information were dismissed.

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