Lifting creams and tumbling scooters - substantiating advertising claims in The Netherlands and wider EU impact
When it comes to stimulating sales of a product, advertising is key. Only few products sell themselves. Most products need to be actively brought to the attention of the relevant potential customers and advertising is the appropriate means to that end. Advertisers will often want to refer to test results or expert opinions in support of the advertised product claims. Such references are, however, not always permitted.
In the European Union advertising is bound by strict rules, and the Netherlands is no exception. The rules concerning misleading and comparative advertising have been implemented in the Dutch Civil Code (DCC). In addition, the Dutch Advertising Code (DAC) also sets out what is permitted or not in advertising. This code is a form of self-regulation, in line with the relevant provisions in the DCC, and considered binding to all. The main principle is that advertising may never be misleading but that a certain level of exaggeration is inherent to advertising.
The DAC permits the use of expert opinions or certificates in connection with the promotion of products. Such documents however must be truthful and in accordance with recently accepted scientific views. Also, the DAC stipulates that in advertising intended for the general public any scientific terms, statistics and quotations must be used very cautiously. Prohibited is any use of specialist terminology, descriptions or images obviously aiming to suggest in a pseudo-scientific or misleading manner the existence of any unproven product characteristics.
In the Netherlands, any person may file a complaint against an advertisement with the Dutch Advertising Code Committee (ACC). One complaint was filed against an advertisement stating the following: 'Warning for mobility scooter riders! Many senior citizens are insecure and anxious after having fallen down with their mobility scooter. And with good reason: the most recent figures of the Foundation for Consumers and Safety show that in one year's time 640 mobility scooter riders were hospitalised, in most cases after they had fallen down with their mobility scooter with three or four wheels. Over five years, the number of accidents with mobility scooters has increased by as much as 41%'. The advertisement was placed by a company that sold five-wheel mobility scooters. The ACC found that the advertiser had not used the referenced figures with the necessary caution. The figures were incorrectly represented and did not support the drawn conclusions. The ad was therefore considered misleading.
An advertisement for anti-aging cream also failed the test of both the ACC and the Board of Appeal. The advertiser claimed that the cream had 'a long-lasting lifting effect' and 'transforms the skin completely after four days'. Reference was made to a self-evaluation test, 10 years of research, seven patents and six scientific studies. The Board of Appeal considered that in principle the advertiser may refer to research, patents and studies. However, if it is suggested this results in the products having a demonstrable effect or certain qualities, the advertiser must make it sufficiently plausible that use of the product indeed leads to the specific results claimed in the advertisement. As this was not considered the case, the ad was found unacceptable.
It follows from yet another decision of the ACC that if an advertisement refers to independent test results, the advertiser can no longer argue that the relevant claim is merely a form of customary exaggeration in advertising.
As the aforementioned decisions of the ACC illustrate, claims in advertisements may be substantiated by references to documents and figures to which the average consumer attaches a certain weight, but prudence is called for. Documents and figures must be truthful and may not leave room for confusion. Misleading the public should always be avoided. As the laws and regulations on advertising have been harmonised throughout the EU, the advertising authorities in other Member States may be expected to decide in line with the ACC's findings in similar cases.