In this post I want to address, with a practical example, misleading advertising. For it, I will discuss a campaign from a company known theaters (Initiatives Company and Entertainment, S.A, onwards, CINESA), and provide readers of this blog, some of them students- the opportunity to comment on a recent report of the Spanish Association for Self-regulation of Commercial Communications.
... Every time you come to 23/08
En concreto, the action under consideration is a promotional campaign in which CINESA offered “2×;1 ticket every time you come up to 23/08 ". Here's a glimpse of it (to which I will discuss in this article as "Advertising").
The point is that, despite the clarity of the offer and the claim o promesa principal de la publicidad era claro –;without asterisks, ni llamadas a restricción alguna en su oferta inicial–;, CINESA subsequently refused to apply those discounts on Wednesdays within the promotional period publicized (reduced price or the viewer Day Wednesday, or its usual price of other days of the week).
The promotion was sent by e-mail A few days before the application period of this and was optimized for mobile devices, in which occupied an area equivalent to 8 screens Mobile. Screen only No. 7 type of reduced-and lyrics, impossible to read on a mobile phone without increasing the type of letter- appeared a restriction on the "Wednesday". A restriction, paradoxically, He contradicted and denied the main promise of advertising.
The question to be asked, por tanto, it is how we have a case of truthful advertising or misleading to the consumer and, por tanto, fits to catalog of "misleading advertising"? What is your opinion?
Mi opinión es que hubiera sido muy sencillo acompañar la promesa principal de la promoción de un breve texto –en esa misma pantalla inicial–; I would have specified "except Wednesdays" or, somewhat more generic, "Conditions apply", I would have alerted the consumer of possible restrictions. Sin embargo, Advertising did not indicate either in its main message or a sufficiently prominent that the offer was subject to any restrictions and, in particular, that was not valid on Wednesdays, something I only noticed near the end of the advertising piece and a very visible way.
"Advertising misleading" under the law.
Under the above, It seems to me obvious that advertising CINESA You may violate the provisions of the General Law on Advertising (law 34/1988, 11 November-, adapted and updated to Community legislation), as well as several provisions of the General Law for the Defense of Consumers and Users.
En concreto, Art. 4 of the General Advertising Act indicates that:
“Es misleading advertising, either way, including its presentation, induces or may mislead recipients, may affect their economic behavior, or impair or be likely to injure a competitor.” [the bold and underlined are mine].
Por su parte, Article 19.2 of the General Law for the Defense of Consumers and Users (Royal Decree 1/2007, of 16 November, approving the revised text of the General Law for the Defense of Consumers and Users and other complementary laws) indicates that:
Without prejudice of the following paragraphs, for the protection of the legitimate economic and social interests of consumers and users, the business practices of employers addressed to them are subject to the provisions of this Act, the Unfair Competition Law and the Law of the Retail Trade. To these effects, commercial practices are considered entrepreneurs with consumers and users acts, omission, conduct, representation or commercial communication, including advertising and marketing, directly related to the promotion, the sale or supply of goods or services, including immovable property, and the rights and obligations, regardless of whether made before, during or after a commercial operation.
And Article 61.2 of the same Act refers to the integration of supply, promotion and advertising in the contract.
The content of the offer, promotion or advertising, the services expected of each good or service, legal or economic conditions and assurances will be payable by consumers and users, even if not expressly mentioned in the contract or document or receipt received and must be taken into account in determining the principle of conformity with the contract.
All of the above seems to indicate that we would be a case of misleading advertising that could be, incluso, an administrative penalty under Article 49.f Royal Decree 1/2007, of 16 November, on Offenses in defense of consumers and users. That article provides as infringement in defense of consumers and users “breach of the rules on registration, normalization or standardization, labeled, packaging and publicidad of goods and services”.
Nonetheless, responsible for CINESA room and company officials themselves do not seem to think the same. Am I wrong? Faced with this controversy and to leave doubts solicits the views of the experts of the Spanish Association for Self-regulation of Commercial Communications ("Self-Control"). A continuación, the summary its opinion, although let me first explain what is self-monitoring and what does.
Self-control and the Jury of Advertising
It is of interest to all, of advertising professionals and society in general, que esta actividad se rija por unos principios éticos y normativos claros –;and are met, claro–;. Es más, not happen the latter, it is obvious that the authorities have no choice but to regulate the sector further, which would result, quite possibly, Additional restrictions and sanctions. Exists, además, a component of social responsibility that makes it advisable to self-regulation of the profession, es decir, overachieving be more than required by law for the simple principle of responsibility to others.
Precisely to avoid that more besides regulation as an element of social responsibility exists in Spain the Spanish Association for Self-regulation of Commercial Communications (known as Self). As it is shown by the Autocontrol own, Similar bodies exist advertising self-regulation in virtually all countries of the European Union, in order to create open society systems.
This body has a "Jury of Advertising", composed of experts in the field of advertising right now and chaired by Professor José Luis Piñar, analyzing its own initiative or at the request of a third party, cases submit disputes regarding the legality or professionalism of a particular piece of advertising. Self clarifies, no obstante, que resolutions that settle such disputes have binding force only for partners, who they have voluntarily expressed their adherence to the Code of Advertising Conduct Self, which governs the pronouncements of the Jury. Por el contrario, against entities not attached to the system of self-discipline, Self-Control opinions are a mere opinion, not binding, on ethics and ethical correctness of the advertising campaign in question, issued by experts in the field.
Fundamentos deontológicos
Despite this, the Self itself admits that "lto most of the opinions issued by the Jury of Advertising are met voluntarily even those companies that do not have the condition associated with the system. Probably this fact is explained by the recognized moral strength They enjoyed such opinions.
This moral force derive from accredited and recognized prestige of the jury members, and legal support granted to the system of self-discipline or self-control, both at Community level (see paragraph 18, and Articles 6 and 8 of Directive 2006/114 / EC, concerning misleading and comparative advertising; Reason and Articles 16 and 17 of Directive 2000/31 / EC of the European Parliament and of the Council, of 8 June 2000, e-commerce) as at the state level (see the Explanatory Memorandum of Law 34/1988, of 11 November, General Advertising); forecasts regulations they joined the explicit recognition of codes of conduct and encouraging self-regulation introduced by Law 29/2009, December 30 in Law 3/1991, January 10 Unfair Competition (see your new Chapter V), and by Law 7/2010, March 31, General Audiovisual Communication (see the Explanatory Memorandum and Article 12). In all likelihood, is the same moral force which also explains the existing substantial overlap between the opinions and resolutions and decisions of the Jury of Judges and courts in those cases where, consecutively, the same facts have been known for these”.
Deep inside the affair
In the case at hand, Self-monitoring indicates that it would be advertising analyze the light CINESA principle of truth contained in Rule 14 of the Advertising Code of Conduct Self-Control (hereafter, "Code of Self").
That provision provides that: “1. Advertising must not be misleading. It is meant by misleading advertising it in any way deceives or is likely to mislead recipients, It is susceptible to alter their economic behavior, provided that impinges on any of the following: (…) b) The main characteristics of the good or service, such as their availability, its benefits, risks, execution, His composition, accessories, the procedure and the date of manufacture or provision, delivery, fitness for purpose, Its use, quantity, specifications, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out good or service. (…) e) Or price fixing mode, or the existence of a specific price advantage over”.
As I said previously, It seems to me clear that advertising is misleading under analysis, since it may mislead availability and scope of supply and promoted, in particular, whether this is valid any day of the week.
In the same vein, according to the Jury of Advertising Self-Control, the configuration of that advertising, and in particular, the initial omission of any warning about the fact that promoted the offer is not available on Wednesdays, “incompatible with the rule 14 of the Code of Self-Control”. Es decir, Jury concludes "considering that the missing information in the main part of advertising is essential and, thus, apt to alter the perception that the consumer has the scope and availability of supply, This section has concluded that advertising is apt to cause an erroneous expectation reasonably informed consumer, observant and circumspect. In particular, advertising is capable of transmitting to their recipients the message that the offer is available without restrictions and, thus, regardless of the day, during the promotional period, when it does not correspond to reality.”
One question that might have as consumers is whether the fact that advertising include the restriction later (on the screen 6) It could serve to justify the same, about what the jury believes that:
“not be claimed that the information in question (this is, the offer is unavailable or does not operate on Wednesdays) It is included and provides the user with a less prominent part of advertising. First, why, given the location of the warning (much later in advertising, near the end of the same) and the small font size that is used for it, It may well go unnoticed the average consumer. And in second place, and in any case, because it's constant teaching of the Jury Part of the advertising that appears in a prominent way it can not be relevantly limited or significantly contradicted by other less prominent posts that prevent consumers to properly understand the content and the actual scope of supply. And this is precisely what, in the opinion of this Section, in the case of advertising analyze. As we said, in the main part of the advertising in question it does not state that the offer is not valid promoted Wednesday. And through a much less prominent message that you can easily pass unnoticed (to the extent that access to it must move far ahead in advertising, almost to the end of an advertisement that occupies several pantallazos) He warns of the end. Por tanto, it seems clear that advertising purpose of this opinion can easily mislead consumers, that in response to the main part of advertising they may conclude that the offer is comprehensive, can possibly ignore the warning is included in a far less prominent party that the offer is not valid on Wednesdays.”;
In consecuense, Jury understands that in the present case the advertising is incompatible with rule 14 of the Code of Self-Control.
I must say that the opinion issued by Autocontrol has been issued without the opinion of CINESA, since the company chose not to submit any claim and, Regrettably, CINESA is not a member of Autocontrol nor are other reasons linked to the Jury. And I must say that, prior to the publication of this post, I have directed the marketing manager CINESA to meet the company's position with respect to this review Jury of Advertising Self-Control. With little success because, the opinion nearly three months after being issued, CINESA remains silent.
Nothing else. I hope you have been interesting this post. I encourage you to be aware of similar cases and critically analyze advertising you see, you read or listen. All that we are tied to this world as exciting as it is to business communication -in its different facets-have an obligation to prestigiarla, to act ethically and promote best practices. As usual, your comments are welcome.
