LEGISLATION
Autocontrol Code of Advertising Practice, Spanish Code of
Dental Ethics, and General Advertising Law 34/1998.
TOPIC
Truth in Advertising: Two Similar Toothpaste Cases
WHEN
May 2006
WHO
1. Autocontrol (Association for the Self-Regulation of
Commercial Communication), citing the Autocontrol Code of
Advertising Practice.
2. Autocontrol (Association for the Self-Regulation of
Commercial Communication), citing the Autocontrol Code of
Advertising Practice, the Spanish Code of Dental Ethics, and
General Advertising Law 34/1998.
WHERE
Spain
WHAT
HAPPENED
1. Glaxo Smithkline Consumer Healthcare, S.A. and Henkel
Ibérica, S.A. vs. Colgate Palmolive España, S.A., Autocontrol
05/29/2006.
Glaxo Smithkline Consumer Healthcare, S.A. (hereinafter
"Glaxo"), and Henkel Ibérica, S.A. (hereinafter "Henkel"), each
brought a complaint over television advertisements sponsored
by Colgate Palmolive España, S.A. (hereinafter "Colgate"). The
two complaints were consolidated into a single action.
The advertisements state that Colgate Total reduces plaque by
98%, and they feature a woman who states that her dentist
was right and that she can now eliminate plaque without
harming her gums. A caption in each advertisement includes
the words "clinically proven." The commercials' primary slogan
is "Colgate Total, the Dentist's Choice." There is also another
caption which reads: "The dentist's choice − Colgate
toothpastes are the ones most dentists use."
In its complaint, Glaxo maintains that by virtue of Rule 17 of
the Code of Advertising Practice (hereinafter "the Code"),
Colgate must prove its advertising statements concerning
dental plaque reduction, as well as those concerning the
advertised toothpaste's being the one most used by dentists,
as is implied by the expression "Colgate Total, the Dentist's
Choice."
According to the complainant, the advertisement asserts, with
no basis whatsoever, that Colgate Total is the dentists'
toothpaste, to the exclusion of others. The complainant points
out that the advertisement seeks to link the "use" of the
toothpaste by dentists to their "recommendation."
For its part, Henkel, the other complainant, considers the
campaign slogan to be equally deceiving and maintains that,
under the principal of "reversal of the weight of the evidence"
(in which the defendant must prove the truth of its claims
rather than the plaintiff their falsity), Colgate toothpastes are
the most frequently used brand. Otherwise, Henkel claims that
the advertisement should be considered deceptive and contrary
to Rule 14 of the Code.
Henkel continues its complaint by underscoring that, in the
context in which Colgate communicates its slogan, the
advertisement implies that there exists a generalised
recommendation in favour of Colgate on the part of dentists.
Henkel supports this complaint with evidence that dentists do
not usually recommend a specific brand and, among the small
number that do, various brands are recommended.
In its decision, the Third Panel of the Autocontrol Advertising
Jury first examines the claim regarding the 98% dental plaque
reduction. The Jury found that the studies offered by Colgate
were sufficient to support such a claim, therefore rejecting this
part of Glaxo's complaint.
In regards to the slogan "Colgate Total: The Dentist's Choice,"
the Jury underscores the importance of considering the
phrase's meaning from the viewpoint of the reasonably
attentive and perceptive, normally informed, average
consumer. It is also important to consider the impression that
the slogan makes on consumers as a whole. Under these
parameters, the Jury understands the slogan to convey two
distinct messages: that Colgate Total is the toothpaste most
used by dentists and that dentists recommend the use of
Colgate Total.
As a result, in order for the advertisements to conform with the
Principle of Truth, Colgate must prove the accuracy of its
statements. However, neither one of the two messages has
been sufficiently supported, since the Jury considers the study
offered by Colgate to be insufficient, as much for its results as
for its research methods, which have not been specified.
The Jury therefore orders the advertisement's cessation.
2. Colgate Palmolive España, S.A. vs. Glaxo Smithkline
Consumer Healthcare, S.A., Autocontrol 05/18/2006.
Colgate Palmolive España, S.A. (hereinafter "Colgate"), brought
a complaint in response to two television advertisements by
Glaxo Smithkline Healthcare, S.A. (hereinafter "Glaxo"). The
two advertisements respectively feature a medical dentist and
a dental surgeon at their workplaces and wearing healthworker attire. In both commercials these professionals explain
that tooth sensitivity is a sharp, painful sensation experienced
when eating certain foods or drinking cold drinks and that the
condition affects 40% of the population. At the end of the
advertisements, both the doctor and the dental surgeon
recommend "the use of specific toothpastes for tooth
sensitivity" and that the same "be used regularly." In addition,
at the end of the commercials, the following caption appears:
"3 of every 4 dentists recommend Sensodyne for sensitive
teeth. National tooth sensitivity survey of 425 dentists."
In its decision, the Third Panel of the Autocontrol Advertising
Jury holds that its it cannot issue any opinion as to whether the
dentists' recommendations conform with the Spanish Code of
Dental Ethics, which establishes that "the dentist's name will
never be used for advertising by commercial entities." Such an
opinion would be outside the Jury's jurisdiction, as said code is
not promulgated by Autocontrol. With respect to the expression
"3 of every 4 dentists recommend Sensodyne," the Jury finds
that the opinion poll offered by the defendant is insufficient to
support the truthfulness and accuracy of its claims. As such,
said assertion violates the principle of truthfulness of Article 14
of the Code. Therefore, the Jury sustains in part the complaint
brought by Colgate and orders Glaxo to correct its
advertisement.
COMMENT
Advertising claims must be substantiated in order to be
considered legitimate.
LEGISLATION
TOPIC
Autocontrol Code of Advertising Practice, the Spanish
Constitution, the General Advertising Law, and the Television
Without Borders Act.
Respect for Animals and the Environment
WHEN
February 2006 and May 2006
WHO
1. Autocontrol (Association for the Self-Regulation of
Commercial Communication), citing the Autocontrol Code of
Advertising Practice.
2. Autocontrol (Association for the Self-Regulation of
Commercial Communication), citing the Autocontrol Code of
Advertising Practice, the Spanish Constitution, the General
Advertising Law, and the Television Without Borders Act.
WHERE
Spain
WHAT
HAPPENED
1. Individual vs. Volkswagen-Audi España, S.A., Autocontrol
02/28/2006.
Three individuals brought a complaint against an advertisement
by Volkswagen-Audi España, S.A. (hereinafter "VolkswagenAudi"). The advertisement shows the new Touareg vehicle
driving through a road in the mountains. In the lower part of
the screen appears a caption, which reads: "Images shown
have been produced by professionals on rural roads suitable for
traffic." The vehicle stops in the middle of a riverbed, and we
see the image of a salmon trying to swim against the current.
Once the salmon disappears from the screen, the car begins to
drive out of the river. The advertisement then ends with a
caption that reads: "There are some obstacles that even a
Touareg can't overcome."
The complainants claim that the advertisement described
above harms the environment in the sense that the vehicle
brutally passes through unspoiled nature − destroying paths,
degrading a riverbed, competing with a salmon that is trying to
go upriver and, in effect, damaging the environment. The
complainants therefore claim that the advertisement violates
Rule 7 (Illegal Behaviour) and Rule 12 (Respect for the
Environment) of the Autocontrol Code of Advertising Practice
(hereinafter "the Code").
The Third Panel of the Autocontrol Advertising Jury holds that
the advertisement does not infringe Rule 12 (Respect for the
Environment) of the Code so long as the phrase "[i]mages
shown have been produced by professionals on rural roads
suitable for traffic" can be clearly perceived by the
advertisement's viewers. In this way, the commercial does not
depict scenes and behaviours that are absolutely contrary to
the environment. Furthermore, the advertisement as presented
does not incite behaviours that are harmful to the environment,
as the viewers are clearly told that the vehicle should be used
only on roads suitable for traffic. However, the Jury ruled that
the caption was so small as to be practically unreadable, and
ordered Volkswagen-Audi to increase both the caption's font
size and the duration of its on-screen display in order to avoid
violating Rule 12 of the Code.
2. Individual vs. Teléfonica
Autocontrol 05/29/2006.
Publicidad
e
Información,
The second claim was filed by an individual in response to a
Yellow Pages advertisement by Telefónica Publicidad e
Información (hereinafter "TPI"). The advertisement shows a
woman hitting an octopus on the table of a traditional kitchen
while she says, "The secret to a tender, tender octopus is
hitting it." The octopus is then released and falls into another
scene, onto the head of a chef who is sampling a creative
cuisine dish. Both scenes are then shown side-by-side, with
captions reading "traditional cuisine" and "creative cuisine"
respectively. The next image shows the Yellow Pages
Restaurant Guide and a voice saying, "Now traditional and
creative cuisine are very close to each other − in the Yellow
Pages Restaurant Guide."
The complainant alleges that the scene in which the woman
hits the octopus, as well as the scene in which the octopus flies
onto the chef's head, is an affront to the dignity of persons
dying of hunger and a justification of animal abuse.
In its decision, the Third Panel of the Autocontrol Advertising
Jury first clarifies the manner in which advertisements should
be interpreted. In accordance with Rule 3.1 of the Code of
Advertising Practice (hereinafter "the Code"), an advertisement
should be analysed in its entirety to determine the overall
impression that it conveys. The Jury next determines that,
based upon the images described, it would be unreasonable to
infer a violation of Rule 2 of the Code, as it relates to Article 10
of the Constitution and Article 3.a) of the General Advertising
Law (i.e., affronts to human dignity). This is because the
images are limited to showing the traditional manner of
tenderising an octopus before cooking it.
In the same way, it is not appropriate to interpret the
advertisement as promoting animal abuse or cruelty, in
violation of Rule 2 of the Code as it relates to Article 8 of Law
25/1994 (published 07/12/1994) of the Television Without
Borders Act. For such a violation to exist, the advertisement
must directly or indirectly call for animal abuse or cruelty, or at
least tend to promote the such behaviour, depending upon the
circumstances of the case. In the case at issue, neither of
these two circumstances exist. The Jury concludes that the
scenes in question will not be viewed as the abuse of animals,
but as a necessary step towards their preparation for cooking.
Furthermore, the analysed scene is clearly exaggerated and
has a humorous overtone, such that a viewer would not likely
be spurred to duplicate the acts depicted. The Third Panel
therefore rejects the complainant's claim.
COMMENT
The Autocontrol Advertising Jury holds than an advertisement's
obviously humorous depictions of animals being prepared for
cooking does not constitute animal abuse and does not
promote such behaviour.
LEGISLATION
TOPIC
Autocontrol Code of Advertising Practice.
Affront to the Dignity of the Person and to Constitutional
Values
WHEN
June 2006
WHO
Autocontrol (Association for the Self-Regulation of Commercial
Communication), citing the Autocontrol Code of Advertising
Practice.
WHERE
Spain
WHAT
HAPPENED
An individual brought a complaint against Fiat Auto España,
S.A. (hereinafter "Fiat"), over a television advertisement
promoting the Fiat Dobló vehicle. The advertisement shows two
women sitting inside a Dobló, dressed up to go out. The driver
says to the passenger, "Manuel uses it for work." The
advertisement then shows the rear area of the vehicle, with
work tools visible. At the same time, various captions appear,
detailing the capabilities of the vehicle. When the two women
arrive at their destination, the driver touches up her make-up,
and the caption "The beauty..." appears on the screen. The two
then make their way to a party, and the driver gives the
doorman an unexpected pat on the behind. At this point a
caption appears that reads "And the beast."
In its decision, the Fifth Panel of the Autocontrol Advertising
Jury explains that the concept of "dignity of the person" is clear
and that it encompasses the right to physical and sexual
integrity. As a result, those behaviours that imply an attack on
a person's dignity should be considered contrary to this right.
The advertising scene in question must be judged according to
such a standard. It must be assumed that the person was
given a pat on his behind against his will. However, it must also
be borne in mind that the portrayal of this scene alone is not
necessarily sufficient to characterise the advertisement as
illicit, since the advertisement must be evaluated in its entirety.
That said, in this case there are no mitigating circumstances
such as humour, exaggeration or a clearly fictitious or unreal
tone that would change the analysis. To the contrary, the
conduct is presented as normal and even plausible. As a result,
the Jury rules for the complainant.
COMMENT
Advertisements that may violate social norms or etiquette must
be evaluated in their entirety. Elements of humour,
exaggeration, or fiction may prevent an advertisement from
being considered an affront to constitutional values or to the
dignity of the person.
LEGISLATION
TOPIC
Autocontrol Code of Advertising Practice.
Gender- and Age-Sensitive Advertising
WHEN
May 2006
WHO
Autocontrol (Association for the Self-Regulation of Commercial
Communication), citing the Autocontrol Code of Advertising
Practice.
WHERE
Spain
WHAT
HAPPENED
An individual filed a complaint against an advertisement by
Allianz Company. The advertisement shows a middle-aged man
and woman sitting in a car. Then an elderly woman is seen
leaving a driving school, her driver's license in hand. The
couple approaches the elderly woman, who tells the couple that
she was given a license. The couple congratulates the woman.
The three persons approach the car, and the mother-in-law and
the son-in-law meet at the driver's door. The son-in-law gives
the mother-in-law the car keys, which are on an Allianz key
chain. Then there appears a caption which reads, "In decisive
moments... Allianz Auto." Then the mother-in-law begins
driving, but she stalls out the car. As this happens, there
appears another caption which reads, "With Allianz you'll feel
safer." An off-screen voice says, "With Allianz you'll feel safer.
3 million clients already are."
The First Panel of the Autocontrol Advertising Jury holds that
advertisements directed to the general public should be
analysed as a whole and evaluated from the point-of-view of
the average consumer, as dictated by Rule 3 of the Code of
Advertising Practice (hereinafter, "the Code"). Based on this
rule, the Jury rules that the advertisement does not
communicate the message that older drivers should be feared,
but rather that new drivers pose a greater level of risk and that
Allianz insures all new drivers, whether they be young or old.
As a result, the advertisement does not constitute an affront to
the dignity of women, nor to that of older women, and does not
violate Rule 2 or Rule 10 of the Code.
COMMENT
It is necessary to assess the advertisement as a whole from the
perspective of the average consumer.
LEGISLATION
TOPIC
Autocontrol Code of Advertising Practice; the Accord of March
20, 1998, between the Ministry of Food and Health and the
Spanish Federation of Food and Beverage Industries; and Royal
Decree 2785-76.
Misleading Advertising
WHEN
June 2006
WHO
Autocontrol (Association for the Self-Regulation of Commercial
Communication); citing the Autocontrol Code of Advertising
Practice; the Accord of March 20, 1998, between the Ministry of
Food and Health and the Spanish Federation of Food and
Beverage Industries; and Royal Decree 2785-76.
WHERE
Spain
WHAT
HAPPENED
Bimbo, S.A. (hereinafter "Bimbo"), brought a complaint in
response to a television advertisement by Panrico, S.A.
(hereinafter, "Panrico"). The advertisement in question
concerns
Panrico
Línea
crustless
white
bread.
The
advertisement begins with the statement, "Do you want to lose
calories?" To this the advertisement's protagonist, the actress
Paz Padilla, responds, "Switch to Panrico Línea without crust
and you'll lose calories as if running a marathon." At the same
time, the advertisement shows the actress pretending to run a
marathon. The advertisement closes with the statement, "New
Panrico Línea without crust. The bread with fewer calories."
The complainant argues that the bread is advertised as a
weight-loss product, which would contravene the Accord of
March 20, 1998, signed by the Ministry of Food and Health and
the Spanish Federation of Food and Beverage Industries.
Bimbo also alleges that the advertisement violates Royal
Decree 2785-76, which regulates prepared foods for weight
loss and/or special-needs diets. The complainant further
maintains that the quantity and method of consumption of the
advertised product have been omitted, contrary to Rule 2 of
the Code of Advertising Practice (hereinafter, "the Code"),
which establishes the principle of legality. Finally, Bimbo
alleges that the advertisement is deceptive in that it
communicates that the consumption of a bread product
reduces calories in the human body by an amount equivalent to
running a marathon.
In its decision, the Fourth Panel of the Autocontrol Advertising
Jury explains that strict literal or grammatical interpretations
are not to be used when interpreting advertising messages.
Instead, the advertisement should be analysed in its entirety.
The Jury recognises that in the advertisement at issue there
exist expressions, which, interpreted literally and out-ofcontext, could communicate the message that consumption of
the advertised bread reduces calories. However, considering
the totality of the advertisement's elements − from the
perspective of a reasonably attentive and perceptive, normally
informed, average consumer − the perceived message is that
substituting regularly consumed bread with the advertised
bread results in a reduction in caloric intake.
In regards to the comparison made between the calories
consumed by running a marathon, such an expression is
permitted exaggeration, bearing in mind the context in which it
is made (the exclamatory tone used, the humorous profile of
the protagonist, the shot of a clearly feigned marathon, etc.).
Therefore, the principle of truth is not applicable. As a result,
the Jury rules against the complainant.
COMMENT
Advertising may be considered misleading in terms of its
content as well as in the presentation of its message.
Humorous exaggeration alone should not be considered
misleading advertising.