Claim in Shampoo Advertisement Challenged before the Appeal Commission

On the 12th of January of 2021, the Portuguese Self-Regulation Appeal Commission was presented with a dispute to decide on the validity of a claim concerning a shampoo advertising campaign.

The dispute was between Procter & Gamble, Portugal, S.A. (henceforth “Procter & Gamble”) and UNILEVER FIMA, Lda. (henceforth “UNILEVER”). Procter & Gamble challenged UNILEVER´s men shampoo advertising campaign, claiming it amounted to misleading advertising since the expressions “removes bacteria” and “deep cleansing that removes dandruff and bacteria from everyday life, while keeping the scalp healthy” could disrespect the principle of truthfulness. In particular, that those could lead the consumers into believing that the product in question would be effective against the coronavirus, given the current pandemic context.

UNILEVER challenged the unfavourable first instance  decision arguing, firstly, that it has already demonstrated the veracity of the advertising claims, i.e., that the product “actually removes bacteria and does so by thorough cleaning of the scalp” and, secondly, that the average Portuguese consumer would not interpret those advertising claims as meaning that the product is effective against the coronavirus. Based on that understanding, those expressions have not disrespected the principle of truthfulness as “they simply assign characteristics and functions that the product possesses (in particular the ability to remove bacteria through thorough cleaning)”.  

On appeal, the Appeal Commission decided in favour of UNILEVER, holding that the expressions used were objective, without any connotation whatsoever towards the elimination of the coronavirus. In that sense, having considered that the principle of truthfulness was not compromised, the Appeal Commission annulled the previous decision prohibiting the disclosure of that shampoo campaign.

This case reflects the importance of considering the commercial communications as a whole, i.e., what the consumers may take from it in a global and essential context, regardless of the connotation that may be associated with its elements when viewed individually.