SLK: Increasing complexity of complaint cases
According to the 2015 Activity Report of the Swiss Fair Trading Commission (SLK), its three adjudication panels handled a total of 71 complaints and 4 appeals last year. Of these, 53.4 percent were upheld—an increase of 8 percent over the previous year.
The number of complaint procedures and the number of preliminary proceedings and inquiries to the legal secretary again declined. However, the complexity of the complaints continued to increase.
The trend from the previous year of a decline in the number of complaints continued in the year under review. "In view of the simultaneous increase in the complexity of complaints, we interpret the decline to mean that our work is having an effect and that advertising clients and agencies alike have developed a clearer awareness of which advertising is louder and which is unfair," Marc Schwenninger, the SLK's legal secretary, explained in a statement. "Companies appreciate being able to obtain an assessment of a competitor's advertising with a competition complaint without much effort, in a very short time and at marginal cost, which is very close to a court ruling." Accordingly, it has become time-consuming for him, as well as for the approximately twenty honorary chamber members and technical experts, to examine the individual cases and prepare the grounds for appeal.
Consumers can better defend themselves against unwelcome advertising
The decline in complaints is also still related to the entry into force of the UCA (Unfair Competition Act). Since the beginning of 2012, so-called individual complaints (questions concerning the delivery of unsolicited mailings, advertising calls, advertising faxes, etc.) can also be submitted to the Federal Office of Economics (Seco). At the same time, the SLK introduced a fee of 50 francs for processing such a complaint. This has greatly reduced the number of such complaints. "What's more," says Schwenninger, "in recent years consumers have been given increasingly effective means of defending themselves against intrusive and aggressive advertising. From stop-advertising stickers to star listings in phone directories to the replay button on TV remotes and adblockers on the Internet."
Further increase in media interest
The importance of the SLK is also manifested in the further increase in media interest. The communications officer or the legal secretary were contacted almost thirty times. The majority of the inquiries were based on the media's own research. Again and again, the SLK had to comment on fundamental questions. The SLK was able to answer such inquiries without evaluating advertising subjects; all specific inquiries, on the other hand, were rejected, since it is up to the three adjudicatory chambers to evaluate appeals.
Most complaints about aggressive sales methods
Among the facts against which complaints were filed in 2015 (Activity Report, page 24), aggressive sales methods are still clearly in the lead, even though they have declined by 5 percentage points compared with 2014. They now account for just over a third of all complaints, followed by gender discrimination at just under 13 percent. The offense "tobacco products + alcoholic beverages," which increased sharply in 2013 and 2014, fell by 9 percentage points to 1.7 percent. Apparently, the new Tobacco Products Act (TabPG) was no longer so much in focus last year. In contrast, there was a strong increase in the facts of the burden of proof: "Every advertiser must be able to prove the accuracy of his advertising claims" (Principle No. 1.9). As far as the sectors are concerned, the most complaints were again received against advertising subjects from banks and insurance companies (aggressive telephone calls from health insurance companies) and mail order companies. In contrast, there was a sharp decline in complaints against telecommunications companies and, analogous to the decline in facts, against the alcohol and tobacco industries.
Parliamentary initiative on self-regulation
State courts today face major challenges. Chronic overload, lengthy proceedings, extensive bureaucracy, massive costs, lack of industry-specific knowledge and high access barriers for consumers are frequently encountered. Against this background, SLK President National Councilor Christine Bulliard-Marbach submitted the parliamentary initiative "Self-regulation as a review criterion in messages and draft decrees" in the 2015 summer session. This demands that new laws that restrict economic freedom must be examined to see whether self-regulation would not be just as good or better. Christine Bulliard-Marbach sees herself in agreement with the OECD and the European Union as well as with the Swiss Federal Council. The position that self-determination and personal responsibility should in principle take precedence over state regulations also prevailed in the new Consumer Credit Act (KKG), which came into force on January 1, 2016. Although the KKG prohibits aggressive advertising, it leaves the definition of what is to be considered aggressive to the industry concerned. Complaints against violations of this self-regulation can be filed with the Fairness Commission. The SLK has already concluded comparable agreements with the industry organizations for alcoholic beverages, for tobacco products and for direct marketing.
