Part 2 in a 6 part series: The CPA requirements of disclosure & information.
This second insert will deal with sections 22 – 28 pertaining to information provided to the consumer in ‘any notice, document or visual presentation’. The primary requirement is that such information must be in ‘plain language’, the key elements of which is described as follows (Section 22):
The consumer is described as the ‘ordinary consumer’ that falls within the supplier’s target market;
Such consumer must have the following characteristics: average literary skill and minimal experience;
He/she must be able to understand the words/language/visual presentation ‘without undue effort’ with special regard to the content, form, style, vocabulary, sentence structure and/or illustration.
This could mean that English and Afrikaans may not suffice if the predominant language in the area in question is e.g. Venda. The family of a consumer who drowned recently in the USA have brought a claim on the basis that there is a large percentage of Spanish speaking citizens and tourists in the USA and that signage should be in Spanish as well
False claims abound and the lack of plain language and often the font size is a mechanism. Disclosures are written in tiny fonts and are always placed very far away from the qualified claim. This distracts the customer from actually getting to read and understand the disclosure and its association to the qualified claim. Some consumers don’t even get to read the disclosures at all as they are always at the bottom of the packaging while the green claims are in bold type and near the labelling which distracts the consumer.
No product must be displayed without a price (on or adjacent to the product) and if two prices are (inadvertently) displayed, the lower price will apply (Section 23).
The ‘trade description’ (i.e. quantity, weight, ingredients) and labelling (Section 24) requirements apply not only to information displayed on or in close proximity to the product but also in any of the following: ‘any sign, advertisement, catalogue, brochure, circular, wine list, invoice, business letter, business paper or other commercial communication’
So you can see how pervasive the compliance requirements are and, whilst we will deal with fair and responsible marketing in the next section, it is already mentioned here – see extract below as what the trade description used by the supplier must not do. (Note use of the word ‘likely’: likely to mislead the consumer as to any matter implied or expressed in that trade description.)
‘TRADE DESCRIPION in business paper or other commercial communication – see two examples below from www.feedough.com
Volkswagen’s ‘Clean Diesel’
Volkswagen released an ad campaign to debunk the fact that diesel was bad and that it used a technology where it emitted fewer pollutants.
Later, the truth was revealed that Volkswagen rigged 11 million of its diesel cars with “defeat devices,” or technology designed to cheat emissions tests and that the vehicles emitted pollutants at levels up to 40 times the U.S. limit.
The federal agencies made the company to pay $14.7 billion to settle the allegations of cheating emissions tests and deceptive advertising.
EasyJet Less CO2
In a nation-wide press advertisement in 2008, EasyJet claimed that its plane emitted 22% less carbon dioxide than other planes on the same route.
This claim was debunked by the Advertising Standards Agency as the company did not make it clear that the figure was related to emissions per passenger and the airline was able to reduce the emission simply because of the fact that EasyJet planes could carry more passengers than traditional airlines
Here’s a more mundane example:
Here’s another example of plain-language failure, this time from the Education Department:
It features a couple of winding, seemingly never-ending sentences full of jargon. And it concludes with, “The study cannot rigorously disentangle these components.” We cannot “rigorously disentangle” this writing. (www.washingtonpost.com) The ‘lesser of two evils’ trick
This is a fairly common one, whereby a company fools consumers into thinking it’s gone green, when it’s just slightly less harmful than it was before. Take organic cigarettes, for example: they may be made of pesticide free plants, but in this context, ‘organic’ means just slightly less deadly than regular – when you read the advertisement below you ask yours elf ‘Why use plastic at all’? (www.eluxemagazine.com)
The next insert addresses fair and responsible marketing: click here to read it now.
DISCLAIMER: Each case depends on its own facts & merits. The above does not constitute advice; independent advice should be obtained in all instances.
By ADV LOUIS NEL, aka Louis-THE-Lawyer
Top photo by Brian Yurasits on Unsplash