SLK: False pretenses
At its first session in 2015 at the end of January, the Third Chamber of the Swiss Fairness Commission (SLK) had to adjudicate a number of appeals that are exemplary for numerous areas of fairness law.
Euro or Swiss Franc in a different way
The first case involves a violation of the Price Disclosure Ordinance PBV. The German travel company, which sells its offers on a website with a .ch domain, considered it sufficient to indicate the prices in Swiss francs only on the homepage. The reasoning: The advertised offers were those of foreign providers, which could only be booked in euros. This assumption is wrong. As soon as an offer is clearly addressed to Swiss addressees, Swiss legal norms are binding - regardless of what is stated in the imprint. Since the PBV prescribes the effective prices in Swiss francs, the complaint was upheld. Incidentally, less stringent rules apply to advertising. On a homepage, which according to Art. 13 para. 1 PBV is considered advertising in contrast to the offer and booking pages, euro prices would be sufficient.
Beware of overly flowery promises
The advertising of a supplier of slimming pills was unfair in several respects. For example, the advertisement "Simply take a capsule before sleeping, ... and lo and behold: you weigh less" is not permitted under Art. 10 of the Foodstuffs and Utility Articles Ordinance (Lebensmittel- und Gebrauchsgegenständeverordnung, LGV). This requires that any description or illustration must correspond to the facts. Also prohibited are references to preventive, therapeutic or curative properties or the advertising of foodstuffs with fictitious medical titles such as "Head of Development Prof. A. Bernd". According to Principle No. 3.2 item 2 of the Fairness Commission, any reference to persons must also be true. In this respect, the experience report by "Mona" was also unfair. The complaint was upheld, even though the so-called respondent claimed that the advertisement in question was merely a preprint that had appeared in error. Incidentally, mere assertions of the correctness of a statement or statements that have not been proven, such as "sold well over 1'000'000 times," as has been argued in two other cases, are not sufficient.
Puffery Exaggeration: Is the claim for a hearing aid "Hearing like a lynx" legally permissible or not? Factual claims in advertising must be true in themselves. If, however, there is a market-shouting exaggeration recognizable to the average addressee, the statement is nevertheless louder, as the Commercial Court of Zurich held in a comparable case in accordance with principle no. 1.1 no. 2 of the SLK 2012. Since "listen like a lynx" is such an exaggeration in the assessment of the Third Board, the appeal was dismissed.
No violation of the Lottery Act: Does the promise to win "if it snows more than 5 cm on Samichlaustag..." violate the Lottery Act? No, says the Third Chamber of the SLK, since the trader could not know how many heating pellets he would effectively have to give away if the condition came true. Thus, the planned nature of the game is missing as one of four conditions that must be met cumulatively for a violation of the Lottery Act. The other three are the prospect of a monetary prize, participation against payment - for example the conclusion of a legal transaction (compulsory purchase) - and chance in determining the winners or the amount of the prize.
False pretenses: The operator of an electronic business directory did not dispute that the complainant had been included in the directory as part of a marketing campaign and without the complainant's knowledge. Therefore, the complaint that the alleged contract extension was a false pretense was credible. However, the operator of the directory believed that he could settle the case with a settlement proposal. In addition, he mistakenly regarded the SLK as an agent of the complainant instead of an independent professional organization. The complaint was upheld.
