Advertising transparency: thou shall not mislead potential clients!

Advertising transparency is a must for promotional messages

These days you cannot attend an industry event or read a study in a sector specific magazine without finding advertisers and agencies stressing that their commercial communication must strive to comply with – and obey to – the principles of ‘transparency’, ‘accountability’ and ‘trust’. However, in real life, even big - and internationally known - brands not always practice what they preach. A periodic glimpse at the newsletters issued by Regulatory Authorities in charge of supervising promotional campaigns and their messages shows that a large part of interventions is reserved to misleading advertising.

Angry Consumers.

A local consumer protection association took issue both, with the commercials aired by as well as with the promotional messages present on the company website of the Italian branch of one of the leading manufacturers and distributors of personal care products. The commercials and the messages put the hype on special characteristics and effects of a toothpaste. Specifically, the claims stressed that – due to the presence among the ingredients of “a whitening component used by dentist” - the product would perform a ‘different action’: while most of the toothpastes resulted effective in acting only on the ‘surface’ and in removing ‘recent stains’, the whitening component was conceived to ‘clean deep’ and to remove ‘years long teeth yellowing’with the result that one could achieve “white teeth in five days”.

Against such claims the association filed a complaint with the Italian Market and Fair Competition Commissioner (in charge of dealing with misleading and incorrect comparative advertising). The Authority verified the advertiser’s commercial communication and found that:

• as a general principle (and in accordance with the provisions of EU Regulation no. 1223 of 2009, as amended and integrated through Regulation no. 344/2013), toothpastes are usually considered as ‘cosmetic products’,
• when certain components (indicated in a list) of a toothpaste exceed a given percentage, it cannot be sold or distributed to the public but only to dentists and may not be used on individuals aged less than eighteen,
• commercial communication for cosmetics may not assign to the product a capacity other than that of cleaning, perfuming, changing the appearance, protecting or keeping in good conditions or correcting body odors of the external parts of the human body, of the teeth and the mucous membranes of the oral cavity,
• in the specific case, some of the claims made in the advertiser’s commercial communication appeared exaggerated, were not supported by adequate substantiation and therefore resulted apt to mislead consumers, providing them with incorrect or incomplete information.

Hence, the Commissioner served the advertiser with a fine of Euro 500.000 (with a joint liability of the Italian branch and the foreign ‘mother company’ as to the payment of the fine), maybe not such a bad outcome in the end as the Authority could have determined the fine up to a maximum amount of Euro 5.000.000.