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

It is an unfair commercial practice to indicate an average selling price instead of an actually used old price of a product under the heading "old price" when using a price comparison in an advertisement so as to create an impression on the consumer that he is buying the product on advantageous conditions.

The defendant conducts its business activity within a network of pharmacies and affiliated pharmacies. Its main activity consists of sales of pharmaceutical products. It also provides advertising for the pharmacies it supplies.

The defendant used a contested advertising practice in the leaflet-magazines it supplied to pharmacies. It placed the current prices of discounted products next to the indication of the "old price". The amount under the heading "old price" was not actually a price used for the same product in the past by the same seller. Instead, it was a calculation of the average price of products presented in the magazines, used in other, randomly selected for this purpose pharmacies, shops and, gas stations and other outlets.

Although the heading "old price" had an asterisk which referred the consumer to the information regarding the exact calculation method of the so called "old price", this information was not printed on pages which presented discounted products, but on a separate page which did not present the product offer at all, and was printed in a small font.

 

According to the UCP Directive, a commercial practice is considered to be misleading when it causes or may cause the consumer to make a decision which he/she would not normally have made. The President of the Office for Competition and Consumer Protection said that although a price discount is beneficial for the consumers, as it allows them to purchase products in advantageous prices, the advertisement in relation to the discount must contain true information about the actually used prices. Otherwise, the consumers may not be able to make an informed decision when purchasing a product.

The defendant used two ways of influencing consumers in their product choices. The first one was the indication of a higher price under a heading "old price". The second one was crossing off the higher price, indicated in smaller font. The President of the Office for Competition and Consumer Protection considered the practice to be misleading, as it gave consumers false information regarding the extent of the benefit they could obtain when purchasing the discounted products.

 

Is it an unfair commercial practice to advertise a product with an indication of its "old price" which has not actually been used in the past and is in fact a calculation of an average selling price of the product?

URL: http://decyzje.uokik.gov.pl/dec_prez.nsf/0/3286DE223DB3B9AAC1257A9A003223AB?OpenDocument

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The commercial practice was found to be unfair.

The President confirmed that the defendant had already stopped using the contested practice.

The President imposed on the defendant a financial penalty paid to the state budget, in the amount of PLN 123,876.