The court paid attention to both parties’ claims. It noted that the word “fresh” is not defined in any legal Cypriot or European document. The court was not convinced that the phrase “the freshest milk in Cyprus” refers exclusively to the time between milking and packaging, as the average consumer would have the impression of some higher quality in relation to the other products of pasteurized milk. Every advertising communication is examined on the basis of its possible effect on the average consumer. This is the approach of the Cyprus Advertising Regulation Organization but also the approach of European Union legislation (see reference to “average consumer” in the Unfair Business-to-Consumer Commercial Practices Directive 2005/29/EC, implemented into national law by the Unfair Commercial Practices From Business to Consumers Law 103/(I)2007:"The average consumer test is not a statistical test. National courts and authorities will have to exercise their own faculty of judgement, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case").
The court has the opinion that the average Cypriot consumer considers that “freshness” in the category of food is a positive characteristic, something often reflected in the pricing. Especially in the category of milk, the consumer often searches for “fresh” milk, considering that this attribute means a higher nutritional value in comparison to other types of milk that is not “fresh”. Therefore, the court considers that the average consumer would consider that the phrase “the freshest milk in Cyprus” is used because this milk has some qualitative features that make it different and superior to other products of the same category, something that the defendant, during discussions, admitted that is not true.
The court decided that the phrase “the freshest milk in Cyprus” contravenes article 11(ii) of the Code of Conduct** (see General Note), on comparative advertisements [article 11(ii) of the Code of Conduct reflects almost verbatim article 4(c) of Directive 2006/114/EC (implemented into Cypriot law by article 4(c) of the Regulation of Misleading and Comparative Advertising Law 92(I)2000)].
URL: http://www.fed.org.cy/fed/userfiles/Achnagal_Decision_Final.pdf
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