During the past year, several judgments of Brussels’ courts have clarified the notion of superlative advertising and defined its limits. As such, the “safe harbour” of permissible superlative advertising has benefited from clarity.
In line with the European rules set out in Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, Articles 86 and 95 of the Law of 6 April 2010 on Market Practices and Consumer Protection (Wet betreffende marktpraktijken en consumentenbescherming/Loi relative aux pratiques du marché et à la protection du consommateur, the “Law”) prohibit any advertisements for which the advertiser cannot justify the validity of the claims made in the advertisement.
Under the Law, an exception to this general rule is the notion of superlative advertising. Superlative advertising is defined in Article 84 of the Law as “common and legitimate advertising practices relying on exaggerated statements or statements that should not be interpreted literally”. Advertisements which are not supported by facts or research, but which are openly exaggerated, are not prohibited under the Law. The Brussels commercial courts have now clarified the extent of this exception in three distinct cases.
In a first case, Henkel Belgium, a distributor of consumer products, sought a cease-and-desist order before the President of the commercial court of Brussels against an advertisement of one of its competitors, Procter & Gamble (“P&G”). P&G had broadcast TV commercials for its washing gel Ariel which claimed “to clean brilliantly at 15°C as well as 40°C”. Henkel claimed that this message was misleading, as (i) the product Ariel does not clean “brilliantly”; and (ii) the advertisement gave the impression that Ariel cleans equally well at 15°C and at 40°C, which could not be factually proven. P&G argued that its advertisement was lawful, as it fell under the notion of superlative advertising.
In first instance, the President of the Brussels Commercial Court followed P&G’s reasoning. After an examination of P&G's intent, the President found that the advertisement was lawful. The claim that Ariel would clean “brilliantly at 15°C as well as 40°C” was not intended to be interpreted literally, and therefore constituted superlative advertising.
However, on 25 July 2012, the Brussels Court of Appeal quashed this judgment. It described superlative advertising as a technique that consists of “promoting the qualities of a product in an exaggerated manner in a way that would attract the attention of the consumer”. The Court of Appeal added that “the consumer should be able to recognise the message easily as likely to be exaggerated or incorrect”. It went on to say that generally vague and recurrent claims can also be considered superlative advertising. In this assessment, however, the intent of the advertiser is irrelevant.
According to the Brussels Court of Appeal, P&G’s claim was neither vague nor easily recognisable as exaggerated: via its commercials, P&G was implicitly claiming that Ariel had obtained the same result at 15°C as at 40°C. Such a claim was specific and, moreover, P&G was the only market player claiming its washing product had such properties. As P&G could not substantiate its specific claim with scientific evidence, its advertisement constituted a prohibited unfair market practice. On the other hand, the Court of Appeal did not consider P&G's claim that Ariel cleans “brilliantly” to be problematic since this was a vague claim that is often used in the market and could therefore be considered as superlative advertising.
In a second case, L'Oréal Belgium brought suit against Beiersdorf regarding an advertisement for its sunscreen Nivea Protect & Bronze Spray. In its commercials, Beiersdorf had claimed that its sunscreen not only protects the skin against sunburn, but simultaneously also “stimulates tanning”.
In a judgment of 4 July 2012, the Brussels Court of Appeal found that Beiersdorf's advertisement constituted a misleading market practice. In reaching this conclusion, the Court of Appeal took into consideration the description printed on the back of the product, which stated that “the product contains a natural plant extract which supports the melanin production of the skin. Use regularly for an even and natural looking tan. Melanin is produced naturally within the body and is responsible for protection and tanning your skin”. The text printed on the sunscreen package combined with the claim that it “stimulates tanning”, made this assertion a specific claim, which could not fall under the protection of superlative advertising. As Beiersdorf was unable to prove its claim scientifically, the advertisement was held to be misleading.
In a third case, television distributor Belgacom had brought suit against its competitor VOO. In an advertisement, VOO promoted its broadcasting rights for the Belgian football championship with the following statements: “the real football present” and “VOO has without doubt the best and the most of football”. While making these statements, the television commercial showed two people, one holding a small blue package (blue being Belgacom's main colour) and the other one with a large pink package (VOO's main colour).
Belgacom, which only has broadcasting rights to a limited part of the Belgian football championship, argued that VOO’s commercial was intently targeting Belgacom and constituted comparative advertising. As such, it considered that the claims made by VOO were too specific to be protected as superlative advertising and were therefore misleading.
In a ruling of 18 June 2012, the President of the commercial court of Brussels sided with Belgacom and held that comparative advertising cannot be protected as a form of superlative advertising. As the statements made by VOO, illustrated by the coloured packages, constituted a clear reference to Belgacom, VOO’s advertisements were not protected as superlative advertising and, based on the facts, were held to be unlawful under Articles 86 and 95 of the Law.
