Disinfectant claims for products are increasingly popular in ads since the swine flu epidemic and other international health scares. Complaints about such claims recently pitted Unilever against Reckitt Benckiser in Greece, and vice-versa, as reported by Eleni Lappa of Drakopoulos Law Firm (Athens Office).
Topic: Health & Beauty
Who: Reckitt Benkiser (Dettol) and Unilever (Klinex)
When: Late 2009
Law stated as at: April 2010
In a dual fast-track proceeding filed by four complainants, COLGATE-PALMOLIVE, ELAIS-UNILEVER, LOWE, GEO&Y-R, two widely popular anti-bacterial products of RECKITT BENCKISER were "put under the microscope" by the Council for Regulating Communications: DETTOL spray and DETTOL liquid soap.
Both of these products are broadly popular, on a global scale and in Greece, partly due to the H1N1 flu scare worldwide and the frequent use of anti-bacterial products in today’s everyday life-style.
RECKITT BENCKISER was represented by the author's law firm Drakopoulos Law Firm (Athens Office) in all the proceedings reported in this article.
Reckitt Benkiser (Dettol)
The main issues in relation to the two products as put forward by the complainants in the consolidated proceeding, were, in sum whether:
- the phrase “10 times more effective than regular soaps” was a misleading statement or not, based on the facts and, if so, whether its use in advertisement is unfairly competitive as regards the complainants;
- the indication in relation to the product “based on the European Standard EN 1276 & 12054” was accurate in the impression it creates in terms of the products’ particular effectiveness;
- the statement on the label of the liquid soap trade-dress “recommended by the Institution for Preventive Medicine and First Aid Care” was in fact allowed or not, as an authoritative statement that meets applicable criteria of EU Law and in particular of Regulation EC/1924/2006, regarding the type of institutions allowed to be included in such “recommendation” statements;
- the use of the term "anti-bacterial" was proper and true in relation to the advertised products;
- references to "microbe-killing" made in the advertising materials violated the relevant regulations, in relation to accurate statements made in advertisements; and
- the phrase "100% security" that was part of the advertising materials for the two products created an impression of "100% security" in relation to the products' qualities in killing germs 100% and was thus questionable, or whether the reference mainly concerned the security provided by the fact that the products were of a quality guaranteed 100% by the fact that they were made by RECKITT BENCKISER and thus not a misleading reference.
In reviewing the issues put forward, the Council highlighted the importance of dealing with health & safety advertising issues by applying a level of scrutiny that is higher and stricter than in other cases.
On this basis, it decided in favour of RECKITT BENCKISER, by accepting most of its arguments. Namely, it excluded the phrase “10 times more effective than regular soaps” & the indication “based on the European Standard EN 1276 & 12054” from any findings of violation of the relevant advertising regulations.
In addition, the Council accepted as sufficiently substantiated RECKITT BENCKISER's evidence on why the term anti-bacterial is properly and accurately used for the two DETTOL products, since it proved to the Council's satisfaction that 99,9% of bacteria are eliminated by either of the two DETTOL products.
On the other hand, the Council determined that the "microbe killing" and "100% security" references may potentially be misconstrued by the public, which does not possess special knowledge in terms of the differences between "bacteria" and "microbe".
As for the statement “recommended by the Institution for Preventive Medicine and First Aid Care”, due to the expiry of the relevant collaboration agreement between RECKITT BENCKISER and the Institution for Preventive Medicine and First Aid Care, it had already been withdrawn by RECKITT BENCKISER from the label of the DETTOL liquid soap trade dress at the time of the proceedings therefore it was found to be a moot point.
A few days after the ADR decisions on the advertising complaints were issued, a preliminary injunctive relief petition filed in the civil courts against RECKITT BENCKISER alleging unfair competition violations etc., for the same products, and requesting that the particular products be seized, etc was struck down by the civil court judge, who also ruled in favour of RECKITT BENCKISER.
Following the above, in proceedings initiated by RECKITT BENCKISER, similar issues were brought to the attention of the Council against UNILEVER’s KLINEX bleach product and KLINEX bleach spray products, and in particular whether:
- the statement “extinguishes 99,9% of microbes” is misleading to the public, a question answered in the affirmative by the Council;
- the phrase “guaranteed disinfection” violates the relevant advertising law provisions with regard to absolute statements that may be untrue and the Council again held that the particular statement may, depending on the circumstances and the mode of use, not always be accurate and correct; and
- the assertion that “no other disinfecting product for the household is more effective against viruses and microbes as bleach” might be mistaken, by the average consumer, who only briefly pays attention to such statements, and, instead of the generic statement for bleach that it is intended to be, erroneously be conceived as a superiority claim for KLINEX, in comparison with its rival bleach products, when such superiority is actually not the case.
The Council accepted these arguments and ruled in favour of RECKITT BENCKISER on all the above issues.
Why this matters:
These challenges and findings show that global brands looking to make strident claims for products in this sector in Greece should not underestimate the risk of such claims undergoing close scrutiny before Greece's well respected and used self regulatory body the "Council for Regulating Communications" and, if this does not resolve the issue, of the courts becoming involved.
Drakopoulos Law Firm, Athens, Greece