Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b)

It constitutes an unfair commercial practice to attribute certain quality features to an advertised product, in the event the trader has no objective proof of such features, and even though the trader could be able to proof the quality claims afterwards.

Plaintiff distributed certain medical devices claiming that they are capable for curing and treating illnesses and preventing health deterioration. In addition, several features were ascribed to its products such as treating physical and mental injuries, improving the effect of cosmetic drugs, anti-poisoning treatments and positively influencing appearance and intelligence.

According to the defendant, the administrative authority, the plaintiff did not inform the customers on the fact that these devices had not been officially examined and that the alleged effects were not medically proven. Defendant therefore imposed a HUF 10 million fine on plaintiff.

Plaintiff contested the decision of the defendant, claiming that the devices are approved by official quality certificates and that there are some effects that did not need any further proof.

The court of first instance dismissed the claims of the plaintiff but lowered the fine to HUF 5 million.

 

The court, in a short reasoning, held that it was established that the information provided by plaintiff was not based on clinical tests or approved medical research.

When making quality claims as in this case, the court held, the plaintiff must bear all test results, certifications, permits, etc. proving the alleged effects at the time of providing the information to the consumers, not thereafter.

As it was established that at the time of the advertisements the plaintiff did not possess such proof to substantiate its claims, the court held that it has breached the prohibition on unfair commercial practices.

 

Does it constitute an unfair commercial practice to attribute certain quality features to an advertised product, in the event the trader has no objective proof of such features, and even though the trader could be able to proof the quality claims afterwards?

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The court dismissed the appeal.