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

It is an unfair commercial practice to advertise a discount programme in a manner that misleads the consumers as to the method of calculation of the actual discount.

The defendant is a retail company operating through its Nine West (shoes) and La Senza (lingerie) shops.

The proceedings concerned an advertising campaign the defendant had put in place to advertise a promotion. The campaign consisted of A4 size posters displayed in the shops in several Polish cities, including shopping centres. Each shop had two or three such posters on display. The posters informed consumers that if they buy more than one Nine West products, they will receive a 60% discount on their retail price. Importantly, most items were already discounted by a smaller percentage. Therefore, the consumers could have been under an impression apart from the discount on single products, they would get a further discount of 60% if they purchase two products. This was in fact not the case, as the 60% discount applied to the original (retail) price.

The consumers could obtain more accurate information about the discount upon an enquiry with the shop employees or by visiting the company's Facebook page. Although the defendant tried to argue that the temporary incidental character placed the action of the company outside the scope of the UCP Directive, it was proven during the proceedings that similar advertising campaigns had been used by the defendant in the past.  

Is it an unfair commercial practice to advertise a discount programme in a manner that misleads the consumers as to the method of calculation of the actual discount?

The President of the Office for Competition and Consumer Protection found that the advertising campaign at issue constituted a misleading market practice, as it contained false information regarding the manner in which the discounted price had been calculated. The posters were presented in such a way that consumers could have got an impression that when purchasing more than one Nine West product, they would get a 60% discount on the already discounted price, and not on the original price of the product prior to the promotion, which was actually the case.

The President of the Office for Competition and Consumer Protection considered the definition of "retail price" crucial to determining whether the campaign constituted an unfair commercial practice. An average consumer has a simple understanding of a "retail price" as differentiated from "quantity price". Since the products had already been discounted, they displayed the lower price after the discount as well as the crossed off original price, to indicate the advantage the consumer was getting. In connection with the promotion being the matter of the proceedings, consumers could have got an impression that if they purchase two products, they would get a further 60% discount in addition to the discount on individual products.

Although consumers could get accurate information on how the discounted price was calculated, this would require them to visit the Facebook page of the company or enquire with the shops' employees. This meant that they did not possess the material information at the time they saw the advertisement. The advertisement could have induced them to enter the shops and familiarise themselves with the offered products. Hence, the practice was found to have a misleading character as it could have influenced customers' behaviour.  

URL: http://decyzje.uokik.gov.pl/dec_prez.nsf/0/10598AB88D702E59C1257C32004CFE2C?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 29,009.