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Misleading and comparative advertising
European legislation protects consumers and traders involved in commercial, industrial, craft or professional activity against misleading advertising and its unfair consequences.
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version).
This Directive protects traders and consumers against misleading advertising, which is equivalent to unfair commercial practice. To this end, it determines the conditions under which comparative advertising is authorised.
Advertisements which mislead or which may mislead the people who receive them are forbidden. The misleading nature of these advertisements could affect the economic behaviour of consumers and traders, or may be detrimental to a competitor.
The misleading nature of advertisements depends on a set of criteria:
- the characteristics of the goods or services (availability, nature or composition, method of manufacture or provision, origin, etc.), the results to be expected from their use, and the results of quality checks carried;
- the price or the manner in which the price is calculated;
- the conditions governing the supply of the goods or services;
- the nature, qualities and rights of the advertiser (identity and assets, qualifications, intellectual property rights, etc.).
Comparative advertising explicitly or by implication makes reference to a competitor or competing goods or services.
This type of advertising is only permitted when it is not misleading. It can be a legitimate means of informing consumers of what is in their interests. Therefore, in particular, the comparisons should:
- relate to goods or services which meet the same needs or are intended for the same purpose;
- relate to products with the same designation of origin;
- deal objectively with the material, relevant, verifiable and representative features of those goods or services, which may include price;
- avoid creating confusion between traders, and should not discredit, imitate or take advantage of the trade mark or trade names of a competitor.
Member States shall ensure that those persons or organisations with a legitimate interest may bring a court action or an administrative appeal against illicit advertising;
Therefore, Member State courts or administrative bodies must be able to:
- order the withdrawal of illicit advertising, even in the absence of proof, of actual loss, damage or of an intention of negligence; or
- prohibit illicit advertising which has not yet been published.
This Directive repeals Directive 84/450/EEC and brings together all the amendments into one single legal act.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 376 of 27.12.06
- The website of the European Commission’s Directorate-General for Health and Consumers