SLK deals with first complaint on native advertising
On April 25, 2018, the plenum of the Swiss Fairness Commission (SLK), in which all three chambers meet twice a year, met alongside the Second Chamber. In the two sessions, nine appeals and five appeals were dealt with. Worth mentioning: on the one hand, the SLK assessed a case of native advertising for the first time, on the other hand, it approved an appeal for the first time in a long time.
At its meeting on April 25, 2018, the Second Board had to decide on nine appeals. Of these, it approved three, rejected four and in one case demanded evidence for the advertising statements in question; an appeal was filed against one of the decisions. For the first time, the Fairness Commission had to rule on a complaint regarding insufficient labeling of native advertising.
Insufficient separation of content and advertising
A media company from the French-speaking part of Switzerland had posted a video report on its website about allegedly questionable ingredients in traditional cosmetic products. Although the video was marked "Sponsorisé" above the short introductory text, there was no corresponding reference in the video itself. Even more, the term itself was misleading, since it was by no means an editorial contribution financed by a sponsor, but the commercial communication of a natural cosmetics manufacturer, which wanted to create the appearance of an editorial contribution. Thus, the contribution clearly violated the principle of separation No. 3.12, No. 1 of the Fairness Commission, which requires a clear demarcation between content and advertising.
In addition, the article itself was unfair, since it denounced an entire product group as harmful to health and the environment. It thus violated Art. 3 (1) (e) of the Unfair Competition Act (UWG). According to this, anyone who "compares himself, his goods, (...) with others (...) in an incorrect, misleading, unnecessarily disparaging (...) manner" acts unfairly.
Lower prices with direct booking misappropriated
"... shows the price for the hotel if you book directly there." This is how a search engine for hotels advertised its services in a TV commercial. This pissed off a hotelier. He complained to the SLK, because in many cases the often lower prices compared to the relevant booking platforms would be concealed when booking directly on a hotel website. The Second Chamber upheld the complaint, since the average consumer understands the statement "...shows the price for the hotel if you book directly there" to mean that the price for the direct booking is taken into account in every hotel comparison.
Appeal approved
In the plenary session, the three chambers assembled had to judge five appeals. Of these, one was approved and three were rejected, while one case was definitively closed. For the first time in many years, an appeal was granted. The reason for this was that, in the opinion of the plenum, the first chamber to advise had paid too little attention to the fact that the actual target group of the advertising was not the end consumer, but the specialist trade. Against this background, the specification of the general term "original spare part - within the meaning of the motor vehicle notice or the BER" was sufficiently clear. However, the SLK could not grant the request of the appellant to obtain an expert opinion from the Competition Commission in order to clarify the facts of the case due to lack of competence.
In another case, the Fairness Commission discontinued the proceedings. It did, however, require the respondent to refrain from making the statement that Swiss cows have "family ties" in the future. However, it also became clear in the course of the appeal that the Board of Appeal would have come to a different decision if it had been presented not only with the disputed subject matter, but with the entire campaign. According to principle no. 1.1 no. 2 of the SLK, an advertisement is also to be judged according to the basic message of an overall campaign.
As always, the detailed reasons for all decisions can be found on the website Website Fair-advertising.ch. in the "Decisions" section. Any person is authorized and legitimized to complain to the Swiss Loudness Commission about commercial communications that they believe to be unfair. The SLK has been the self-control body of the advertising industry since 1966. In addition to the industry associations, it includes the Federal Office of Public Health, the State Secretariat for Economic Affairs SECO, the Office for Equality of the City of Zurich, the lottery and betting commission Comlot, the Institute for Intellectual Property and consumer associations. The Swiss Commission for Fair Trading has been chaired by National Councilor Christine Bulliard-Marbach since 2012.
