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).
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