Case n. 42/2017
- By : Christoph Kolonko
- 22 September 2017
The use of disclaimers: when they are able to prevent the deceptiveness of the marketing communications”
Executive summary of the decision of the Advertising Self-Regulatory Body no. 42/2017
1. Marketing communications challenged before the IAP (Advertising Self-Regulatory Body)
L’Oréal Italia S.p.A. (“Oreal”) against the advertising campaign concerning the new line “Nivea Sun Protect & Hydrate” of Beiersdorf S.p.A. (“Beiersdorf”), consisting of two different versions aired on television and uploaded on Youtube.
Advertisement: two different views of summer. Before, focus on a garbage bin full of clothes in a dark atmosphere, with a voice-over about the brief life of millions of summer clothes because of the stains caused by solar screens. After, the new Nivea products appeared with the wording “stains protection*”, together with a statement about 9 patent applications and a disclaimer about the capability of new products to reduce the stains after the washing compared to the previous formulas.
2. Legal arguments of Oreal
(i) Comparative advertisement (Article 15):
- the advertisement showed how any solar screens other than Beiersdorf’s ones caused stains;
(ii) Misleading advertisement (Article 2):
- although the new Nivea products only helped the washing of the clothes, the advertisement referred to a formula which prevented the creation of the stains;
- the consumers could not distinguish between a patent application and a registered patent;
(iii) Denigrating advertisement (Article 14):
- consumers invited to react against the disasters caused by the solar screens (i.e. by the competitors of Beiersdorf).
3. Legal arguments of Beiersdorf
- consumers encouraged to use solar screens thanks to an easier washing of their clothes;
- reduction up to 40% of the stains demonstrated by an independent laboratory;
- 90% of consumers who tested the products reported they have found no stains after the washing;
- claim “stains protection” always showed together with a well readable disclaimer;
- no comparative advertisement due to the lack of reference to any competitors.
4. Opinion of the Control Committee
Infringement of Article 2 of the IAP Code (misleading marketing communication).
5. Decision of the Giurì
Breach of Article 2 for the following reasons:
- assess if the consumers understood that the new products only allowed an easier washing;
- consumers induced by the body copy and the voice over to believe that the new Nivea products actually prevented the creation of the stains;
- the disclaimers were unreadable and the type size revealed that the claim was likely misleading;
- consumers induced to believe that the 9 patents had already been registered;
- Beiersdorf could have easily amended the advertisement in order to avoid any deceptiveness of the marketing communication;
- neither a comparative advertising (Article 15), due to the lack of reference to any other brands, nor a denigration (Article 14), because the consumers could understand that the “millions of clothes thrown away” constituted a metaphor;
- Beiersdorf was ordered to interrupt such marketing communications, but the decision was not made public since the breaches committed by Beiersdorf were not severe enough (Article 40).