Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b)

Making statements about the results from the use of a product, when such statements are not true and confirmable, constitutes a misleading commercial practice.

The defendant launched a line of deodorants for man and woman in roll-on and aerosol. The labels of the deodorants and the advertising campaign claimed a “48h of anti-perspiration protection”.

The plaintiff argued that the use of those particular promotional claims was in breach of the principle of truth and, thus, it should be deemed as misleading advertising as deodorants do not provide anti-perspiration protection for 48 hours. To support its claim, the plaintiff had conducted two different studies to analyse the product and the results of its use.

The plaintiff claimed that the defendant’s message in the labels and advertising campaign was unlawful pursuant to Article 5 and Article 7 (2) (b) of Decree-Law 57/2008, of 26 March 2008, as it was a misleading description of the characteristics of the product, as well as misleading advertising, as per Article 11 of Decree-Law 330/90, of 23 October 1990 (the “Advertising Act”). Further, it was also argued that the defendant’s actions were in breach of ICAP’s code of conduct.  

The court first held that the “48h anti-perspiration efficacy” claims were likely to lead an average consumer to consider that by using the product, the consumer would benefit from 48 hours without perspiration. As the court followed the plaintiff's scientific studies that this was not the case, it held that such claim thus qualifies as a misleading practice.

Further, the plaintiff was considered to have breached codes of conduct to which it had undertaken to be bound.  

Does making statements about the results from the use of a product, when such statements are not true and confirmable, constitute a misleading commercial practice?

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The court ruled in favor of the plaintiff and the defendant was ordered to cease its advertisement campaign.