Misleading advertising: SPOT & STOP


Maria Demetriou, author of the article with title "Misleading advertising: SPOT & STOP"

Author: Maria Demetriou

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Date of Publication: 25/10/2022




As a consumer, have you ever caught yourself being a victim of the glorious advertising industry? Whatever the answer might be, the following information suits everyone. Of course if they want not only to deal with, but also to prevent this unpleasant situation.

Coca-Cola - Shell Motor Oil - Canada Dry - RPM - Misleading advertising: SPOT & STOP

What is misleading advertising?

In the world of modern technology and highly intense competition, our everyday life is getting more and more packed with fancy and eye-catchy advertisements. Therefore, manufacturing and selling companies are struggling to get on top and beat their competitors. So, that often leads them to create fantastic and attractive, but misleading advertisements.

In that context, how many times has an ad impressed or fascinated you and then the actual product has disappointed, misled or even deceived you? That’s exactly the meaning of misleading advertising.

However, under the current consumer law, this kind of advertisement isn’t welcome at all.


Unfair commercial practices Directive-UCPD

Objective

By implementing the Directive 2005/29/EC, EU’s aim is to prohibit and combat the unfair commercial practices of manufactures and sellers. In this way they protect consumers and regain their trust on the advertising goods/services.


Scope

Your protection as a consumer against unfair commercial practices is wide, referring to all stages before, during and after the commercial transaction.

‘Unfair’ encloses both misleading information and aggressive marketing tactics, which -likely- distort your purchasing decision. However, you should take account of the reasonable average consumer to evaluate these unwelcomed techniques. In addition, pay attention to the specific group of people he belongs to (eg. age, mentality, physique). Unforeseeable sensitivities and exaggerations, which you shouldn’t take literally, cannot stand as a claim.

In addition, its scope covers all kinds of products -goods and services- including, for example, advertisements about food, drinks, clothing, furniture, cars and, also, medical, beauty and eco-friendly products.

In addition, its scope covers all kinds of products, goods and services. For example, it includes advertisements about food, drinks, clothing, furniture, cars and, also, medical, beauty and eco-friendly products.

Moreover, you should always keep in mind that various types of advertisements exist:

● press and digital advertisements

● television and radio ads,

● events’ posters and

● signs.


The EU Directive can prohibit all of them.


How can you spot a misleading advertisement?

An advertisement can be misleading positively or negatively.

Positively:

● When it contains untruthful, false information or,

● When it, generally, deceives or is likely to deceive the average consumer, even if much information is factually correct.

Both cases shall or are likely to lead you, as a consumer, to make a transactional decision, which you wouldn’t make otherwise.

The false or inaccurate-deceiving information shall be connected with the:

  1. Existence or nature of a product

  2. Main characteristics of the product (eg. availability, composition, origin, benefits, usage, results)

  3. Price of the product, its calculation, possible price advantage

  4. Extent of trader’s commitments and existence of symbols connected to direct or indirect sponsorship/approval of the product by others

  5. Need for service/repair

  6. Legal rights of a consumer

  7. Trader’s and consumer’s rights

  8. Trader’s compliance with codes of conduct

In addition, misleading advertising involves information, which makes you confuse the advertising products with products/trademarks/tradenames of other competitors.

Negatively:

● When it omits or hides material information, which the average consumer needs in order to make an informed decision or,

● When it provides the important information in an unclear/ambiguous way or,

● When it fails to ascertain the commercial intent of the information.

All the above cases shall or are likely to lead you, as a consumer, to make a transactional decision, which you wouldn’t make otherwise.

Examples of material information are the possible space/time limitations of the product and the verification of genuine consumer product reviews, if provided. What’s more, in case of an invitation to buy the product, it is material to mention the:

  1. Main characteristics of the product

  2. Trader’s identity

  3. Price, its calculation and charges

  4. Payment and delivery

  5. Right of withdrawal/cancellation

  6. Third parties on online marketplaces

How can you spot an aggressive advertisement?

An advertisement can be aggressive when it -possibly- decreases vitally the average consumer's freedom of choice by using:

Harassment or,

Coercion -physical force included- or,

Undue influence i.e. exploitation of power.

Examples of ad aggressive techniques by taking account their timing, location and persistence:

  1. Threatening/abusive language/behavior

  2. Taking advantage of specific circumstances to influence the consumers

  3. Disproportionate non-contractual barriers (eg. right of trader to terminate the contract or switch it to another product/trader)

  4. Threats for actions that cannot be taken legally

For a more specific list of the banned advertising practices, click here (Annex I, page 17).


What can you do as a consumer-victim of the above unfair commercial practices?

✔ Have fallen in the trap of the above unfair advertising tactics and got misled, deceived or even coerced? Then, you are able to make a complaint to the Competition and Consumer Protection Commission -CCPC- and get informed about your exact consumer rights.

Then, you should file your individual lawsuit against the specific trader of the advertised product, either to court or to administrative authorities.

Each Member State of the EU shall guarantee your right to redress (eg. compensation, price reduction, termination of contract). This right, though, varies according to the gravity of the illegal technique and the damage suffered.

The competent authorities impose penalties, as well. In Spain, the Article 282 of the Penal Code provides for imprisonment or fine to traders enrolled with misleading advertising.

✔ If you aren’t a victim of misleading/aggressive advertising so far, that means you were careful enough or just lucky. Either way, you have the chance, now, to spot and stop it.

Coca-Cola Zero - Samsung - Vogue - Hyundai Misleading advertising: SPOT & STOP

 

Reference List:

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive)


COMMISSION STAFF WORKING DOCUMENT GUIDANCE ON THE IMPLEMENTATION/APPLICATION OF DIRECTIVE 2005/29/EC ON UNFAIR COMMERCIAL PRACTICES Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS A comprehensive approach to stimulating cross-border e-Commerce for Europe's citizens and businesses


Ey Orgánica 10/1995, de 23 de noviembre, del Código Penal

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