This is what the Fair Trading Commission decided in the first half of the year
At the end of June/beginning of July, the media focused on the first complaints against influencers. In total, however, the Swiss Commission for Fair Trading (SLK) had already dealt with more than fifty complaints and two appeals in the first half of the year, which were also quite a challenge. An overview.
In addition to numerous complaints about disregarding the star entry in the telephone directory or the stop-advertising sticker, the cases can be roughly divided into three subject areas: "gender discrimination", "competitor complaints" and complaints in which other laws were affected in addition to the principles of the SLK and the Unfair Competition Act (UWG). Specifically, this concerned the Foodstuffs Act, the Radio and TV Ordinance and the Animal Welfare Act.
Tele-Basel presenter and former "Bachelorette" Adela Smajic used a revealing yoga clip to promote a political program on her channel. The Fairness Commission described the appearance as "gender-discriminatory".
Animal Welfare Ordinance (TSchV): The complainant considered claims such as "Really strong, our cows can get out regularly" to be incorrect and therefore unfair. The SLK adjudicating chamber was not of the same opinion and dismissed the appeal in its entirety. According to the Federal Office for Agriculture, 14% of cows do not have regular access to pasture. However, the TSchV also requires tethered cattle to have regular access to pasture. The average consumer can therefore correctly assess the contested advertising claims; all the more so as he knows that animal welfare in this country is far stricter than abroad.
Competitor complaints, which companies can use to have the advertising of competitors assessed, have become regular fodder for the Fair Trading Commission in recent years. In the first half of 2019, these included the following complaints:
The price is hot: A laser eye center was unable to prove that it had actually advertised the regular price and the promotional price as required by the Price Disclosure Ordinance (PBV) - namely for a maximum of two months and only half as long as it was in force. The complaint was upheld.
No comparison: The decisive part of this appeal was also upheld. It concerned an advertising cover that was allegedly one of the "Top 10 Swiss print media". In view of the vanishingly small proportion of editorial contributions, this claim was unfair.
Worth imitating: Fairness law does not recognize a general prohibition on imitating other people's services. Such advertising is only unfair if, on the one hand, the original has distinctive character, on the other hand, it is copied in essential parts, there is a risk of confusion and the imitation is unnecessarily suggestive. This was not the case with this complaint; it was therefore dismissed.
Caught on the dog: The case was similar for the advertising of bedbug sniffer dogs and the question of which of the two parties was the original. As the name "Bedbug Hunter" is also purely descriptive and cannot be registered as a word mark, the complaint regarding trademark theft was rejected. However, it was upheld due to a misleading logo and false information regarding the training and certification of the animals.
According to the Commission on Fair Trading, this campaign is not unfair - it is of the opinion that consumers can correctly assess the claim.
Foodstuffs Act (LMG): More complex was the case of the advertising of food supplements which, according to the Foodstuffs Act (LMG), may not be imported into Switzerland - except for purely private domestic use - or may not be imported in the dosage offered. In order to assess this complaint, the SLK consulted the Federal Food Safety and Veterinary Office (FSVO). Ultimately, the respondent was recommended to adapt its communication in three cases: For products that are not permitted in Switzerland at all, for a misleading product reference and for medical recommendations that are not permitted in this context according to the Federal Council's Information on Foodstuffs (LIV).
Is your wife dusty? Then it's high time for a xxx vacuum cleaner". This claim was deemed unfair as it ascribes stereotypical characteristics to women. The statement "If you are dusty - then it's ....." would have been harmless.
I always come: Are advertising slogans such as "I always come" and "I look in every crack" for a pipe cleaning service sexist or not? It was undisputed by the Board of Appeal that there was a factual connection with the activity; it was also undisputed that the statements had a sexual reference. With regard to the average consumer, the SLK came to the conclusion that there was no inappropriate depiction of sexuality.
Is it still okay to say cleaning lady? The URL of a cleaning company was objected to as it gave the impression that only women should do housework. The SLK did not consider it to be gender-discriminatory, as "cleaning lady" is a common job title.
In total, the three adjudicatory chambers have dealt with 51 complaints, two appeals and one request for sanctions in four meetings so far this year. The detailed reasons can be found on the website Fair-advertising.ch in the "Decisions" area.
Radio and TV Ordinance (RTVO): A Facebook clip from a media company was only marginally about yoga. The actual purpose was to attract viewers to its own website on a voting Sunday. The fact that this was done with a scantily clad woman doing the "bridge" yoga exercise so that the viewer's gaze fell directly on her cleavage was deemed unfair and gender-discriminatory. However, the media company argued that the Fairness Commission was not responsible, but rather the Radio and TV Ordinance (RTVO). However, this would only have applied if the media company had shown the video in its own program.
