False advertising

False advertising

As we mentioned in a previous entry on our blog, false advertising is one of the most common illicit practices in the field of advertising. The Spanish Consumer Protection Law (LCD) classifies deceptive advertising practices into various legal categories. How to avoid incurring in this practice?

On one hand, it refers to deceptive acts (article 5) and misleading omissions (article 7), and on the other, it elaborates and complements this classification with a list of specific cases of deception towards consumers, outlined in articles 21 to 31.

In this entry, we will focus on deceptive acts and address the nature and details of misleading omissions in another blog post.

What are deceptive acts in advertising?

Deceptive acts or false advertising is defined in article 5.1 of the LCD as follows:

“Any conduct containing false information or information that, even if true, due to its content or presentation, induces or may induce recipients to error, is considered unfair and deceptive, with the potential to alter their economic behavior.”

From this definition, it can be deduced that deceptive advertising requires the confluence of two cumulative conditions, namely:

1. The ability of the message to mislead its audience: This circumstance implies that the illegality does not depend on the truth or falseness of the content but rather on the interpretation that an average consumer makes of this information. In other words, even if an advertising message is accurate and corresponds to reality, it can generate incorrect interpretations on the part of the recipients, thereby giving rise to false expectations.
2. The potential for this to result in an alteration of the economic behavior of said audience target: In addition to misleading the consumer, advertising must be capable of altering their economic behavior. In this case, as in the first condition, jurisprudence allows us to conclude that it is not necessary for harm to materialize; the mere existence of a risk is sufficient.

The Spanish General Law of Advertising dedicates its second Title to illicit practices in advertising. Within this regulation, scenarios of advertising that are deemed illegal are enumerated.

Influencers in the spotlight

As indicated in a recent blog post, the European Union, aware of the risks and dangers of influencer advertising and its impact on consumers, announced this summer that it would focus its efforts on addressing and mitigating this problem.

In the same vein, the Ministry of Consumer Affairs announced in an October statement that it will investigate the posts of influencers and content creators to determine if they comply with advertising legislation (which is harmonized at the European level thanks to Directive 2006/114/EC and Directive 2005/29/EC), with a particular emphasis on combating false advertising.

When selling goods and/or services to consumers as traders, influencers need to comply with rules relating to the transparency they owe consumers (e.g. providing sufficient details about the identity of the seller of the advertised products/services, indicating the approximate number of limited units in a promotion, or giving a sincere and realistic reflection of the results that the advertised product can achieve).

This practice is not only harmful to consumers in general but specially to minors as a group constantly connected to social media and thus an important audience of the influencer marketing, since they are vulnerable individuals in a phase of physical, psychological, and social development.

How to prevent false advertising

• Comply with the sector-specific legislation that affects the products you intend to advertise: There is a wide range of sector-specific legislation in advertising (for example, it is worth mentioning significant developments in financial and banking matters, as well as in healthcare or food-related areas). Therefore, referring to the applicable legislation for the product or services that are intended to be advertised will allow one to understand the specifics of the information that must be provided, as well as the conditions under which it should be included.
• Use exaggeration with caution: The requirement for an advertising message to have the potential to alter consumers’ economic behavior has led to the development of the exaggeration in the advertising field as a lawful practice. This is because the exaggeration causes that the message is not taken seriously by an average consumer and thus it is not likely to mislead the consumer or alter their economic behavior.

Therefore, advertising messages like “The best shave for your skin” have been considered lawful, even if the truth of the message could not be proven, as it has been deemed a common and general exaggeration in commercial practice that does not impact consumer decisions.

• Seek expert advice in case of doubt: At Letslaw by RSM, we have digital lawyers specialized in advertising law who can advise you on your campaign from a legal perspective and accompany you in the development process to avoid problems or penalties.

Do not hesitate to contact us so we can help you using our experience and knowledge to provide you with the best guidance on legal matters.