Claim in Baby Product Advertisement Challenged

On the 28th of February, 2020, the Portuguese Self-Regulation Appeal Commission was presented with a dispute to decide on the validity of claim concerning a baby product advertisement.

The dispute was between MEDINFAR CONSUMER HEALTH – Produtos Farmacêuticos, Lda. (“MEDINFAR”), FARMINVESTE – Investimentos, Participações e Gestão, S.A, (“FARMINVESTE”), as first defendant and BAYER Portugal Lda. (“BAYER”), as second defendant. MEDINFAR considered the expression “contains no zinc oxide” could disrespect the principle of truthfulness, as it would suggest that a legal ingredient of the product could harm or danger consumers as it was accompanied by a claim stating "lets the skin breathe".

In its turn, FARMINVESTE and BAYER argued that the expression “contains no zinc oxide” was a true statement to inform that the product does not have that ingredient. Furthermore, the expression “lets the skin breathe” is only a consequence of the absence of that ingredient. At first instance, the Advertising Ethics Jury of the Self-Regulating entity decided in favour of the defendants, because it considered that the expression was limited to conveying to the public a real and verifiable fact.

On appeal, the Appeal Commission again decided in favour of the defendants, since it considered that the expression used in the claim used was objective, without any connotation whatsoever, meaning that it does not infringe the principle of truthfulness.

This case shows the importance and care one should take in reviewing product claims, ensuring their objectiveness.