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Case Details

Case Details
National ID Decision nr RLU nr 2/2009
Państwo członkowskie Polska
Common Name link
Decision type Administrative decision, first degree
Decision date 03/04/2009
Sąd Prezes Urzędu Ochrony Konkurencji I Konsumentów w Warszawie
Temat
Powód/powódka The President of the Office of Competition and Consumer Protection
Pozwany/Pozwana Dairy Cooperative (seated in Biała Podlaska)
Słowa kluczowe average consumer, economic behaviour, false impression, material distortion, misleading commercial practices, product characteristics, transactional decision

Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b)

The occurrence of ingredients that are not allowed in certain products with a protected name (such as "butter") constitutes a misleading commercial practice when the trader sells its products under that protected name. 
The defendent is a business entity that provides customers with dairy products such as milk, cheese or butter. Two of these products were described as follows: "Extra butter a 200 g" and "Cream butter (73,5%fat)".

After inspection, it was revealed that these products contained certain ingredients that are not allowed in products indicated as "butter".

The President of the Office started proceedings with the intention to determine whether such practice could be deemed to be prohibited on the following grounds: 

(1) The practice is contrary to the quality requirements specified in the Polish and EU provisions; and

(2) The practice misleads the consumer with respect to the quality and characteristics of the product, as the consumer is not properly informed about the product and, as a result, is likely to take a transactional decision that he would not have taken otherwise.

 
Does the occurrence of ingredients not allowed in certain products that have a protected name (such as "butter") constitute a misleading commercial practice when the trader sells its products under that protected name?
(1) The President of the Office of Competition and Consumer Protection considered that the collective consumers interests were infringed pursuant to art. 24 sec. 1 and 2 pt. 3 of the Polish Competition and Consumer Protection Act. The unlawful practice of the trader was qualified as an act contrary to the requirements of the Safety of Food and Nutrition Act, as well as regulations based on this act and European rules.

(2) The President also considered that the trader misled the consumer through the inappropriate description of a product and its qualities. Statements such "extra butter a 200g" and "cream butter (73,5% fat)" suggest that the product should contain animal fat, as the name "butter" is reserved only for animal fat. The fact that the product contains phytosterols, materially distorts or is likely to distort the economic behaviour of the average consumer whom it reaches or to whom it is addressed with regard to the product.  
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The President imposed a fine amounting to PLN 121.563 (about 30.500 EUR) for the first product and PLN 100 723,00 (about 25.000 EUR) for the second product.