Case n. 41/2016

  • By : Christoph Kolonko
  • 22 September 2017

Solar screens and misleading marketing communications. The state of the art.

Executive summary of the decision of the Advertising Self-Regulatory Body no. 41/2016

1. Marketing communications challenged before the IAP (Advertising Self-Regulatory Body)

Beiersdorf S.p.A. (“Beiersdorf”) against the packaging of the product “Garnier Ambre Solaire Advanced Sensitive” marketed by L’Oréal Italia S.p.A. (“Oreal”).

Challenged market communications: “very high IP 50+”; 3 lines drawing representing UVA+UVB rays, long UVA rays and infrared rays* (disclaimer: “against immediate and long term damages” and “against most frequent and penetrating rays”); “innovation”; “first time global and high protection against UVB, long UVA rays and against adverse reactions to infrared rays”.

2. Legal arguments of Beiersdorf

(i) Misleading advertisement (Article 2) combined with safety of consumers (Article 12-bis):

  • communication inducing the consumers to believe the products provide them with the highest sun protection factor against any type of solar rays (market survey provided);
  • no scientific evidence about the harmfulness of infrared rays, Oreal emphasized a false warning in order to enhance the sales;
  • no solar screen can scientifically provide consumers with a “global” protection.

3. Legal arguments of Oreal

  • scientific evidence about the harmfulness of infrared rays for the skin;
  • market survey: consumers interested in the protection factor, not in the type of rays against which a product provides a protection;
  • “global protection” means against any type of rays, different than “total protection”;
  • “innovative”: Oreal’s product is effective against harmful infrared rays.

4. Opinion of the Control Committee

Infringement of Article 2 of the IAP Code (misleading marketing communication) in case the Giurì ascertained “global protection” is a synonym of “total protection”.

5. Decision of the Giurì

Breach of Article 2 for the following reasons:

  • no scientific technique available to assess the protection factor against infrared rays;
  • consumers deceptively induced to consider that the protection factor “50+” and the communication “against immediate and long term damages” are referred to the infrared rays;
  • “global protection” synonym of “total protection”, it is a misleading marketing communication since consumers shall not be induced to lower their threshold of attention as per the exposure to the sun;
  • with regard to solar screens, marketing communications shall also be interpreted on the basis of the symbols, emotions and senses which are recalled, not only by a rational point of view;
  • Oreal was ordered to interrupt the use of the link between “very high IP 50+” and “infrared”, as well as the use of the claim “against immediate and long term damages” and “global”.
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