False and misleading marketing

One of the fundamental principles of the Danish Marketing Practices Act is that businesses are not allowed to be misleading or untruthful in their marketing. However, it may be difficult to know where to draw the line in respect of misleading marketing. Gorrissen Federspiel has many years of experience assisting businesses in cases of alleged false or misleading marketing. Learn more about the issue here.

What is misleading marketing?

Misleading marketing is defined as marketing of a product or service which contains false or incomplete information. In addition, marketing is considered misleading if the marketing makes it unnecessarily difficult for consumers to understand, e.g., the commitment periods or the conditions of the purchase of a given product or service.

Sections 5-6 of the Marketing Practices Act deals with misleading marketing. A distinction is made between misleading actions and misleading omissions.

Misleading actions

Misleading actions may involve several different elements in the marketing, including:

• Misrepresenting the characteristics, quality, use, price or origin of a product.
• Withholding or concealing material information about a product or service that may influence the consumer’s decision to buy or use the product.
• Creating a misconception that a product or service has special characteristics which it does not actually have.
• Presenting a product or service in a manner that gives a false impression of its characteristics or use.
• Using unethical sales techniques such as taking advantage of a consumer’s age, illness or other personal circumstances to promote sales.

Misleading omissions

Just as you are not allowed to misrepresent or oversell your product or service, there is some information which you are not allowed to omit in your marketing. This includes among other things:

• Omitting to disclose negative characteristics or side effects of a product that are relevant to the consumer’s decision to buy or use the product.
• Omitting to disclose limitations or disadvantages of a service that may affect the consumer’s decision to use the service.
• Omitting to disclose the actual price or prices of a product or a service, including hidden costs or charges.
• Omitting to disclose a material change in the price, quality or characteristics of a product or service after an order has been placed or an agreement has been made.
• Omitting to disclose the terms and conditions of a service, including the right to return, the right to make a complaint or a guarantee.
• Omitting to indicate that content is advertising.

What is the penalty for misleading marketing?

Under the current Marketing Practices Act, breach of the provisions of sections 5 and 6 of the Marketing Practices Act on misleading and false marketing are soley punishable by a fine, unless a severer penalty is provided for under section 279 of the Danish Criminal Code on fraud or by other relevant legislation.

Complaining about misleading marketing to the Consumer Ombudsman

It is the task of the Danish Consumer Ombudsman to supervise compliance by Danish businesses with the Marketing Practices Act.

The Consumer Ombudsman regularly takes up cases on the basis of complaints from both businesses and individual consumers.

If you come across a business which you believe is either not complying with the provisions on good marketing practices, is misleading or even aggressive in its marketing, you may lodge your complaint via this link. However, the Consumer Ombudsman cannot take up all cases submitted. If the Consumer Ombudsman takes up your complaint, you will be notified.

Our marketing law team

Gorrissen Federspiel has established a group specialising in marketing law, rooted in our knowledge of and experience in all aspects of marketing law, including in particular the provisions on misleading marketing.

Our dedicated team deals with all aspects of marketing and consumer law and consists of highly qualified attorneys with extensive experience in the field.

Our team includes former Consumer Ombudsman and Advocate General at the Court of Justice of the European Union Henrik Saugmandsgaard Øe, which gives us unique insight into both the authorities’ handling of marketing law issues and the underlying EU law regulation.

Our specialised knowledge combined with our insight into the current challenges affecting businesses’ choice of marketing strategy forms the basis of our advice on marketing and consumer law.

We assist both Danish and foreign companies with specialised advice and preparation of litigation in a wide range of areas, including:

Disputes and infringements, particularly in cases of comparative and misleading marketing and product imitations.

Green marketing, particularly in cases of greenwashing and issues of misleading/non-misleading green marketing in relation to documentation requirements.

Price marketing, particularly in cases of the lawfulness of promotional campaigns.

E-commerce, particularly in cases of website design requirements, online payments, email marketing and compliance with spam and consent rules.

Clearing of marketing campaigns and advertising, both on and offline.

General consumer law.

Negotiations with authorities, including obtaining advance indications from authorities.

Preparation and implementation of compliance programmes to comply with the rules of marketing law and data protection law, including advice in relation to customer clubs, websites and apps.

Get assistance from Denmark’s leading marketing attorneys

Whatever challenge you and your business are facing, we can help you. Gorrissen Federspiel provides legal assistance based on solid commercial understanding. In this way, we best serve the interests of your business. We understand your business, its services, products and the challenges you are facing.