//= "[ssba-buttons]" ?>
Businesses like to claim they are “Number One in Poland”, that they are “market leaders” or that they offer “the lowest prices”. However, advertising which contains such claims can be classified as misleading. This issue should be analysed taking into account the specific nature of the given market.
What is a superlative claim?
Superlative claims are value judgements which aim at persuading potential customers to buy certain products or services and which put special emphasis on their qualities. More often than not, these claims are exaggerated to some degree or cause the customers to associate the given product or service with above-average quality and a distinctive position on the market. Assessing superlative claims in advertising is a highly problematic issue with respect to legality. On the one hand, advertising is inherently and essentially non-neutral; on the other hand, superlative claims can be considered misleading for their recipient and thus breaching the principles of fair competition.
Assessments of superlative claims are based on the so-called average consumer model, in which the consumer is seen as a well-informed, observant and circumspect person. As case law shows, the average consumer is also defined by social, cultural and linguistic factors, as well as by their individual features, such as age (Judgment of the Poznań Court of Appeal of 12 December 2013 in case no. I ACa 958/13). Advertising directed at functioning adults in their prime has to be assessed differently than advertising oriented towards older people or children, who are less attentive and more prone to various suggestions. Naturally, what also bears upon the average consumer model is the subject of the advertisement itself. Adverts promoting medicinal products, nutritional supplements or everyday products will all have different model recipients (cf. Judgment of the Warsaw Court of Appeal of 4 December 2013 in case no. I ACa 661/13). A superlative claim will therefore be misleading, and unlawful, if its recipient derives an inadequate image of the products or services on offer.
As a rule, however, the assumption in assessing superlative claims against the average consumer benchmark is that customers are in fact aware that exaggerated claims and claims that should not be taken literally are a common practice in advertising. This was pointed out by the Poznań Court of Appeal which deemed that superlative claims do not have to be misleading; as puffery, they are not taken literally but with a grain of salt (Judgment of the Poznań Court of Appeal of 10 October 2005 in case no. I ACa 221/05).
We truly are Number One – can we emphasise this fact?
Most often, superlative claims are evaluative and subjective judgements to which the criterion of truthfulness cannot be applied. In light of this, it is difficult to accuse advertisers of being dishonest or exceeding the boundaries of acceptable exaggeration. In turn, making superlative claims with respect to such features of the given services that can be verified in terms of their truthfulness requires careful consideration. If we are able to prove that we indeed satisfy the requirements we lay down in our claims, the risk of classifying such practice as misleading, and therefore illegal, becomes much lower.
Within case law, this problem has so far been analysed with respect to assessing information provided on food packaging. As indicated in one of the judgments (Judgment of the Poznań Court of Appeal of 12 December 2013 in case no. I ACa 958/13), “the use of a phrase only with respect to a few products and the clarification on the issue of samples and time periods used in the research support the conclusion that customers have been duly informed about the product they purchase”. The court pointed to the fact that one can objectively verify the truthfulness of the “Number One in Poland” advertising slogan, which, in this case, was documented by research results. The crucial question that arises in relation to this is how can customers be informed that the fact of being a leader is confirmed by research. Undoubtedly, such information should be well-displayed in the advertisement, and be clearly visible and legible. This conclusion also remains valid in light of the decisions of the Commission for Ethics in Advertising, and especially of its Resolution no. ZO 93/18/46u of 1 August 2018. The Adjudicating Panel has stressed that such unambiguous statements as “Number One in Poland” should be displayed in a clear and comprehensible manner. The advertisement concerned displayed the relevant information in too small a font and in too unclear a statement for the viewers, reading: “According to a Kantar Millward Brown study, as many as 61% of hybrid users choose the Semilac hybrid nail polish. The study was conducted on a representative sample of women aged 18-65 in February 2017.” The Commission for Ethics in Advertising deemed the advertisement in such form to be in breach of the Code of Ethics in Advertising.
In another case (judgment of 10 October 2005, case no. I ACa 221/05), the Poznań Court of Appeal held that “superlative claims in the vein of “Number One” claims are considered puffery if not supported by objective arguments concerning, for example, the distinguishing features of the product; such puffery is not a decisive factor in the customers’ purchasing decisions as it is their own taste and preferences that come first”. At the same time, the court pointed out that if there is no indication as to which products the phrase “Number One” might concern specifically, the consumers will see it as a reference to the quality of the products. This is because quality is the second-most important factor influencing purchase decisions after price. It seems then that also in this case, the advertiser should have the relevant quality certificates or other documents attesting to the high quality of the products and services on their offer; under the Unfair Competition (Combating) Act, it is they who are obliged to prove that the value judgements they use are true to the facts and not misleading.
Consequences of making illegitimate superlative claims
Should a given advertisement be deemed misleading, the advertiser may be held liable, primarily under the Unfair Competition (Combating) Act. In such a case, certain entities, including its competitors, are entitled to demand that the advertiser cease using the advertisement, pay damages or publish an apology. Consumers are also entitled to make such claims. Misleading advertising can also be held to harm the collective interests of consumers, which may lead to proceedings being commenced against the advertiser by the Polish consumer protection authority (Prezes UOKiK). This authority has the power to impose various sanctions, including a fine of up to 10% of the trader’s revenue.
Importantly, promoting one’s services (including through use of superlative advertising) is significantly restricted by law in certain industries. Careful consideration is advised, for example, with respect to promoting medical facilities or doctors’ offices. We kindly encourage you to read our article on this subject, which was published in the “Zarządzanie placówką medyczną” (“Managing medical facilities”) magazine.
Check what we refer to:
- The Medical Activitiy Act of 15 April 2011 (as consolidated in Journal of Laws of 2018, item 160, uniform text);
- The Unfair Commercial Practices (Combating) Act of 23 August 2007 (as consolidated in Journal of Laws of 2017, item 2070);
- The Competition And Consumer Protection Act of 16 February 2007 (as consolidated in Journal of Laws of 2018, item 798);
- The Unfair Competition (Combating) Act of 16 April 1993 (as consolidated in Journal of Laws of 2018, item 419);
- Judgment of the Poznań Court of Appeal of 12 December 2013 in case no. I ACa 958/13;
- Judgment of the Warsaw Court of Appeal of 4 December 2013 in case no. I ACa 661/13;
- Judgment of the Poznań Court of Appeal of 10 October 2005 in case no. I ACa 221/05;
- Resolution of the Commission for Ethics in Advertising no. Nr ZO 93/18/46u of 1 August 2018;
- The Code of Ethics in Advertising (version 19 January 2018);
- Stawicki (ed.), E. Stawicki (ed.), Ustawa o ochronie konkurencji i konsumentów. Komentarz, 2nd edition, Warsaw 2016;
- Namysłowska (ed.), Reklama. Aspekty prawne, Warsaw 2012;
- Szwaja (ed.), Ustawa o zwalczaniu nieuczciwej konkurencji. Komentarz, 4th edition, Warsaw 2016.