Claim of Special Characteristics and the Admissible Exaggeration in Advertising

The Czech Republic Supreme Administrative Court upheld a court decision on a dispute between the Council for Radio and Television Broadcasting (RRTV) and a manufacturer of infant formula called Sunar, one of the leading infant formula brands in the Czech Republic.

The manufacturer released a TV spot promoting the formula, which aired on TV in 2016. The spot included information on several ingredients of the formula (all of them being mandatory in infant formulas) and a slogan “Sharp mind, immunity, cognitive functions and palate. Who did they take after? After Sunar.” The company was fined a total of 50 000 CZK (EUR 2 000) by the RRTV for violating the Advertising Regulation Act and the EU Regulation on the provision of food information to consumers No. 1169/2011. The RRTV deemed the slogan to constitute a claim of special characteristics of the formula ensuring proper child development, when the ingredients in question are mandatory ones, hence causing the TV spot to be misleading the consumers.

However, the manufacturer appealed the decision before Regional Court and the case ultimately reached the Supreme Administrative Court, with the argument that the advertising does not link the compositional information to the slogan which is clearly an exaggeration.

The Regional Court held that the information on ingredients was included only briefly, at the very end of the TV spot, and in such small letters that the consumers were not able to properly read and process the information, not to mention making a connection between the information and the slogan, which is mentioned earlier in the spot. And while parents of young children are slightly more vulnerable consumers than average, they cannot be expected to make the said association. As a result, the Regional Court annulled the RRTV´s decision.

The Supreme Administrative Court upheld the Regional Court´s decision. The Supreme Administrative Court has already adjudicated in the past that the crucial point of view when assessing advertising is not necessarily the exact wording of the message, but rather how the message is perceived as a whole by the average consumer. And while the ingredients in question do affect the features included in the slogan, the manufacturer did neither claim any connection between the ingredients and the slogan, nor linked the information in the TV spot in any way. Moreover, according to the Supreme Administrative Court the slogan is a clear exaggeration, all the more in connection with the visual of the spot, featuring a baby with exaggerated abilities, and the background music resembling the main theme of Mission: Impossible.

Considering all the abovesaid, the Supreme Administrative Court deemed the TV spot to feature an admissible exaggeration and confirmed the Regional Court´s ruling annulling the RRTV´s decision, revoking the fine imposed.

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