Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7

A company selling ‘x-test’ has marketed their product internationally but has its place of business in Denmark. Thus, the jurisdiction is Denmark, and the Danish Courts must evaluate whether the advertisement is legal. The ‘x-test’ shows if your unborn child has Down syndrome. A woman took the test which was negative, and she therefore proceeded with the pregnancy, however, the child was in fact born with Down syndrome. The woman believed that she was given the impression that the test was accurate when the test result was negative.

A pregnant woman takes an ‘x-test’ with a negative result. She gets the impression from the company’s webpage and the doctors that the result is 100% accurate. The child is, however born with Down syndrome so, she claims damages and claims that the advertising was misleading.

Was the advertisement on the webpage misleading? Can the impression given by the local doctors (whom the company had an agreement with) have influence on the liability of the company?

The Court of Appeal ruled that the advertisement was not misleading based on a reading of the webpage stating the test was not 100% accurate. The company provided evidence that the local doctors were informed of the product and its accuracy, so the court did not believe that the doctors’ false impression of the test being 100% accurate was to have an impact on the evaluation of whether the company was misleading their buyers.

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The Court of Appeal upheld the decision of the Court in first instance. The judgement is a very specific case where the evaluation of the evidence is the primary factor. In this ruling, they found evidence that the information on the webpage was not misleading and that the local doctors were informed through non-misleading material.