The controversy of the promotional claims mentioned on product labels/packaging

 

Cover article: “The controversy of the promotional claims mentioned on product labels/packaging

by Claudia Cărăvan and Beatrice Bealcu, Associates Voicu & Filipescu

 

Considering the permanent concerns for complying  with the provisions of the specific legislation in the  consumer protection field, we address a controversial topic, which is very targeted by the National Authority for Consumer Protection (hereinafter referred to as “ANPC“) through its inspections, respectively  the regime of the claims mentioned on the label / packaging of the products, which might influence the consumers’ decision to buy the product in question.

It is well known that, in practice, in order to increase the attractivity of the products on the market, different marketing strategies are used, so that the product packaging / label shows various claims related to the efficiency of the product, its composition, the place occupied in the top of the consumers preferences, etc., which are likely to place the product in a position of advantage over other products in the same range.

In the commercial chain, first of all, arises the question: what conditions must comply the respective claims  in order to avoid misleading the consumer?

In this respect, the legislation does not provide a clear answer, but it does provide the general condition of the existence of supporting documents that confirm the accuracy of the claims which recommend the product, the trader having the obligation to own them and to make them available to the ANPC or the courts upon request (art. 11 of Law no. 363/2007 on fighting against unfair commercial  practices in the trader-consumer   relationships and harmonizing the regulations with the European legislation on consumer protection).

Under these circumstances, in practice, a series of specific conditions have been outlined for the supporting documents to meet (e.g. specialized  studies). On this line, the supporting documents must be valid, relevant, not interpretable and must refer to a determined reference period and to the market sample actually used. Basically, the claims  communicated to the consumer must be real and proven.

Although, theoretically, the fulfillment of these conditions does not seem to be a difficult task, in reality, many difficulties of interpretation arise in practice and most of the time the conclusions of the analysis of the supporting documents imply a subjective approach. In this regard, disputes occur especially when one raises the problem of interpreting specialized tests, which, although supporting the claims in question, use a specific technical language that can only be correctly understood by persons having training or skills in the field.

Failure to comply with these conditions entails qualifying the claims as inaccurate, therefore likely to mislead the consumer, influencing him or being likely to influence his decision to purchase the product in question. In this case, selling the products in the absence of supporting documents proving the claims mentioned on the label/ packaging represents an unfair commercial practice within the meaning of the provisions of art. 6 of Law no. 363/2007, the trader being liable to pecuniary sanctions, which can be accompanied by suspension of its activity until the unfair commercial practice ends.

In this situation, considering not only the pecuniary implications , but also the reputational risks, along the lines of the principle of fairness, another question arises: who is responsible for the compliance of the statements applied on product labels/packaging?

Regarding this doubt, the legislator preferred a very general approach, meaning that it regulated  the obligation to provide evidence on the accuracy of the claims, with a generic title, upon all traders.

Pursuant to Law no. 363/2007, the notion of “trader” includes any natural or legal person who acts in its commercial, industrial or production activity, hand-made or liberal, as well as any person who acts for the same purpose, on its behalf.

In the practice of the courts this reasoning is embraced considering the fact that, as long as the distributor sells a product whose label contains a claim that has the role of promoting that product, in order to increase sales, the latter assumes that the discussed claim can bring it an advantage, and therefore has the obligation to ensure that it does not mislead consumers by using it.

This approach of the legislator is surprising given the fact that the obligation of labeling and/or packaging rests with the producer, the other participants in the commercial chain having no possibility to intervene on these elements.

Therefore, for a fair and equitable separation of the position and role of each participant in the commercial chain, as well as for supporting the proper functioning of the market, an intervention at the legislative level is needed in order to reflect the reality of the practice, especially considering that currently ANPC has proposed to public debate a series of proposals to amend the legislation, proposals which however do not include this distinction.

Meanwhile, given that nowadays all economic operators, including retailers, have the obligation to hold and provide supporting documents for promotional claims, the only option remains the contractual control of the obligation’s mechanism to own and provide supporting documents which fulfill the conditions outlined in practice.

 

 

Legal Changes of September 2019

Voicu & Filipescu is a full service law firm, covering all legal areas relevant to your company’s activity. This issue of our monthly newsletter provides you with a brief description of some of the recent legal amendments in:

 

download full English version (.pdf)

download full Romanian version (.pdf)