The unexpected amendment of the campaign terms for "Nutella Awarding Jars" during the campaign period was deemed an unfair commercial practice by the Turkish Advertisement Board in its recent decision. The Advertisement Board ordered the company to cease the unfair commercial practice which is found to be non-compliant with the requirements of professional diligence set forth by the Regulation on Commercial Advertisements and Unfair Commercial Practices ("Regulation").
As per Article 28 of the Regulation a consumer-oriented commercial practice shall be deemed unfair, if it is contrary to the requirements of professional diligence and if it perturbs or is likely to perturb substantially the financial behaviors of the reached average consumer or the average member of the targeted group pertaining to a product or a service and in this respect an unfair commercial practice is prohibited before, during and after the consumer activity. Although there is no explicit rule restricting any amendments to campaign rules during its term the main principle of Turkish consumer law is the accuracy of the consumer-oriented activities. Contrary actions could be considered misleading.
Pursuant to the originally announced campaign rules in September 2018; the consumers were required to collect the codes indicated on the Nutella jar in order to earn the points and in return for the points the consumers were entitled to gain customized Nutella knife, Nutella speaker, Nutella lamp etc. One month later, in October 2018, the original rules were changed by the organizer, the entry of more than 8 codes in one month by the same user were ruled to be commercial participation and these participations were ruled to be null and void. With this amendment, an entry limit which was not set in the original terms and the exceeding entries were retroactively invalid.
Upon complaint of a consumer whose entries already exceeding the post-determined limit even at the time of the amendments made in the terms were invalidated, the Advertisement Board reviewed the original and amended campaign rules as well as the invalidated entries. The Board confirmed that total invalidation of 65 entries made by the consumer is unfair, the changed rules are detriment to the participant, at least 8 entries should be deemed valid considering that this rule is subsequently incorporated in the campaign. According to the decision; even though the amendments to the terms were declared, the consumer was supposed to have the right to request awards in return for 8 codes which should be valid in terms of the former campaign rules.
The decision is exemplary and is important in two aspects. The Board affirmed his power to scrutinize the campaign & promotion rules of companies directing consumers with award(s). Under Turkish law there is no explicit rule which empowers the Board for surveillance of consumer-oriented campaigns and promotions. On the other hand there is no doubt that these activities should be considered as commercial practices towards consumers and they remain within the supervising authority of the Board against unfair commercial practices and there is no real debate about this issue. However the scrutiny and market surveillance of the Board over the promotion / campaign rules are very rarely experienced, hence this decision is good in reminding the Board's powers to the ones conducting unfair commercial practices in the market.
The second important aspect of the Board's decision is in terms of the validity of the amendments to be made in the campaign / promotion rules. As the organizers frequently preserve their right to change and amend the rules during a campaign or promotion period the validity of these terms are questionable in terms of consumer protection aspects. It is generally advised that the changed conditions should not be to the detriment of the participants and consumers can have such a claim against the organizer. The decision shows that the Board continue to adopt this approach.
Originally Published by GALA, February 2021
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