Claims in Baby Food Advertising Considered Misleading and Unfair Commercial Practice

On the 27th of October of 2020, the Advertising Ethics Jury of the Self-Regulating entity was presented with a dispute to decide on the validity of a baby food advertising campaign conducted on the Internet, through websites and social networks, and in supermarkets displays.

The present dispute was between Nestlé Portugal, Unipessoal, Lda. (henceforth “Nestlé”) and MILUPA COMERCIAL – Comercialização de Produtos Alimentares S.A. (henceforth “MILUPA”). Nestlé challenged MILUPA´s baby food products advertising campaign, claiming it amounted to misleading advertising and unfair commercial practice.

Nestlé argued that the advertising claim where the Portuguese term “orgânico” was being used, mislead the consumer to believe in the organic origin of MILUPA´s products, when, in fact, those were not considered organic products. Furthermore, according to Nestlé, other advertising claims (as such “Thus, we guarantee the safest food for the babies”) consisted in depreciative comparative advertising and, therefore, should not be allowed under the current legal framework.

In turn, MILUPA defended itself by stating that the advertising claims at issue “should be read taking into account the advertising message as a whole, as only by looking at all the information provided to the consumer can one assess the consumer's understanding of the message to be transmitted”. Based on that understanding, those claims did not imply that the products were organic, as MILUPA did not use the term “biológico” (the correspondent Portuguese term for organic), nor was there was any comparative advertising since "there is no comparison with competing products”.  

However, the Advertising Ethics Jury of the Self-Regulating entity decided in favor of Nestlé since it considered that the use of the term "orgânico" is likely to mislead the consumer as to the organic origin of the product, even though the correspondent term in Portuguese for organic is “biológico”. Moreover the Ethic Jury held that “safest food” convey a suggestion of superiority over other product’s that shall consist in unauthorized comparative advertising when failing to prove such claim (which was the case). In this sense, the Ethics Jury decided that MILUPA´s commercial communications were not in accordance with the legal principles on advertising whereby their disclosure should cease immediately.

This case shows that attention should be paid when using certain expressions that can be considered misleading claims if they are not properly substantiated.