Misleading advertising practices in Switzerland

Misleading advertising

How is editorial content differentiated from advertising?

The guidelines of the Swiss Commission for Fairness provide some guidance on this. Commercial communication, regardless of the form or media, must be identified as such and separated from other content such as editorial content. It is unfair, for the purpose of the acquisition of commercial mandates, to promise editorial content or to make commercial mandates dependent from concessions in editorial content. Further, product placement in editorial communication against payment is not allowed if it remains non-transparent to the consumer. In addition, surreptitious advertising is not allowed.

How does your law distinguish between ‘puffery’ and advertising claims that require support?

The UCA prohibits the making of incorrect or misleading statements in commercial communication. Thus, factual statements in advertising must be true. However, puffery statements are allowed in so far as value judgments or subjective statements of opinion are concerned that are readily recognisable as such by the addressees of the advertisement and are therefore not taken seriously by the public.

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Misleading advertising is unfair and prohibited by law. As such, advertising must not only be true but also clear. The consumer should receive the goods and services that he or she imagines and may reasonably imagine on the basis of a relatively fleeting overall view of an advertisement. As such, all material information must be disclosed in a clearly recognisable manner. Disclaimers and footnotes are often used; however, the respective information must correspond to the aforementioned preconditions. Sector-specific rules may require specific information to be provided in advertisements.

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

Generally speaking, advertisers are not required to provide proof of their advertising claims before publishing. However, the UCA requires that the information provided in advertising, for example, information on the company, goods or services, prices, quantities in stock, sales event or business relationships, must be true.

As regards the standard of proof, the general procedural rules apply. The court must be convinced in such a way that any doubts appear to be irrelevant. As regards the possibility of a reversal of the burden of proof, refer to question 10.

Are there specific requirements for advertising claims based on the results of surveys?

Advertising claims based on the results of surveys have to correspond with the general rules applicable to advertising. The fair commercial communication guidelines of the Swiss Commission for Fairness provide some guidance on the conduct of tests and the commercial communication of respective results (see question 21). However, mere consumer and opinion surveys are not considered as ‘tests’ and must not be designated as such.

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Subject to the provision in article 3(1)(e) UCA, and provided the comparison is not likely to create confusion among traders or consumers, it is allowed to make comparisons with competitors and their products - in particular, by using their names. The UCA prohibits comparative advertising only if it compares products or prices by means of incorrect, misleading or unnecessarily offensive statements or in an unnecessarily condescending manner. The guidelines of the Swiss Commission for Fairness state that, among others, the products compared in advertising must allow for a comprehensive and conclusive factual comparison, relevant facts must not be suppressed, no unnecessary intervention with the personality of market participants must occur and the value of the compared product must not be unnecessarily reduced.

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

Producers may advertise their products and services by using expert opinions beneficial to them, if such opinions or tests have been released for advertising purposes. There are no specific rules governing a higher or special degree of proof; the general rules of the UCA apply.

The fair commercial communication guidelines provide some guidance on the conduct of surveys and tests and the commercial communication of respective results. They must correspond to the principles of neutrality, objectivity, relevance and transparency and, thus, be true, clear, complete and comprehensible. Further details are provided in the guidelines for tests, also issued by the Swiss Commission for Fairness.

Legislation on advertising for medicines strictly prohibits the use of clinical studies, scientific publications or expert opinions in advertising to the public.

Are there special rules for advertising depicting or demonstrating product performance?

There are no specific rules governing the depicting or demonstrating of product performance. Advertisers must, however, consider all general rules such as those of the UCA and specific rules concerning, for example, discriminatory content or the use of tobacco products.

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

Advertisers that use testimonials or expert opinions should be able to bring forth the original document or in another way prove its authenticity. This also applies to foreign testimonials and opinions as they must be verifiable in the place they are being used as advertisement. Such third-party opinions and testimonials may be published only with the explicit consent of the author or at least the consent may not have been retracted.

If correct, the adherence to a code of practice may be mentioned in advertising. In addition, the use of certifications and quality marks is generally encouraged. However, the use of untrustworthy or invented labels not only violates the rules on misleading statements of the UCA but may also bear consequences in more specific areas such as laws regulating the advertising of chemicals.

Are there special rules for advertising guarantees?

There are no special rules for advertising guarantees.

Are there special rules for claims about a product’s impact on the environment?

Any claims such as ‘environmentally friendly’ and ‘ecological packaging’ must be clearly defined and explained. The reasons for such claims may be that the product is refillable or that it can be destroyed in an environmentally non-damaging way. Special rules can be found, for example, in the Federal Ordinance on Protection against Dangerous Substances and Preparations.

Are there special rules for describing something as free or a free trial or for special price or savings claims?

As regards pricing claims in general, the Federal Ordinance on the Disclosure of Prices must be observed. Article 18 UCA prohibits pointing out price reductions in a misleading way. A price quotation without sufficient informative value, for example, that does not show the value of the discount or the final price or that is based on fictitious comparison prices, is misleading. Moreover, the customer must not be misled into believing that a particular product can be obtained only at a special price for a short period of time, although the promotion is not limited in time or the product is no longer available at all after the promotion. Further, it is considered unfair if goods are repeatedly offered below cost price and if such offers are particularly highlighted and customers are thereby deceived about the vendor’s ability to perform (article 3(1)(f) UCA). Customers must also not be deceived about the actual value of an offer by adding free encores (article 3(1)(g) UCA).

Are there special rules for claiming a product is new or improved?

No specific rules apply for claiming the novelty or the improvement of a product. The general rules apply, which is why respective claims must be true and not misleading. The time span during which a product can be fairly qualified as ‘new’ or the level of improvement that must be reached for it to qualify as ‘improved’ substantially depends on the particular product and the market concerned.

Are there special rules for claiming where a product is made (such as country of origin)?

There is no general obligation in advertising for claiming where a product is made. However, if a respective claim is made, it must correspond to the applicable legislation. The Federal Trade Mark Protection Act (TMA) protects against any kind of unlawful use of geographical indications of source and states that respective indications in advertising are considered to be correct only if the origin of all of the products and services advertised corresponds to the rules in articles 48 and 49 of the TMA. The respective requirements largely depend on the specifics of the advertised product, for example, whether it is a natural product, foodstuff or an industrial product etc.