COVID-19 and unfair market practices

A side effect of the coronovirus pandemic, in Poland as well as in other countries, is the intensification of practices on the market that may be classified as acts of unfair competition and violation of collective consumer interests.

Entrepreneurs use the fear of SARS-CoV-2 in various ways and promote their products or services through marketing campaigns directly or indirectly referring to the threat and protection against coronovirus.

While many of the ads appearing recently contain only subtle allusions to changed living conditions during the pandemic, a number of others in a prohibited manner try to mislead consumers by suggesting that a given product may protect against coronovirus infection.

An act of unfair competition and infringement of collective consumer interests

In the light of provisions of the Act on combating unfair competition, no advertising is allowed that may mislead the customer and could therefore influence their decision as to the purchase of goods or services.

However, the Act on competition and consumer protection states that practices violating collective consumer interests are behaviours of entrepreneurs that are contrary to the law or morality which may consist in committing an act of unfair competition in the field of advertising as well as violation of the obligation to provide consumers with reliable, thoughtful and complete information.

The mere suggestion – despite the lack of reliable and scientifically based grounds for this – that a given product has antiviral properties or reduces the risk of coronaviries infection is the act of misleading the consumer.

Actions to combat this type of violations may be undertaken in Poland by the President of the Office of Competition and Consumer Protection as well as by the Main Pharmaceutical Inspectorate with regard to drugs and medicinal products.

Television advertising inconsistent with the Pharmaceutical law

An example from the Polish market may be the immediate ban on broadcasting an advertising spot by the Main Pharmaceutical Inspector of a known antiviral drug. The advertisement shows a product visualization in combination with a virus visualization referring to COVID-19. Viruses gradually decreased and disappeared and thus the recipient of the advertisement received a message that the medicinal product was effective against coronavirus infections or could protect against such an infection.

In the opinion of the Main Inspectorate, the message contained in the advertisement is not confirmed either in the approved Summary of Product Characteristics or in the package leaflet. Therefore, the advertisement violated art. 53(1) of the Pharmaceutical Law Act which states that advertising of a medicinal product may not be misleading. The combination of a medicinal product with a pathogen which, due to its graphic form, is associated with COVID-19 by the average recipient, also constitutes a violation of art. 53(1) of the Pharmaceutical Law because the advertisement thus contains information contrary to the Summary of Product Characteristics.

Full text of the decision of the Main Pharmaceutical Inspector regarding the case PR.600.25.2020.JD.1. is available here.

Coronovirus scams

Another negative phenomenon related to the pandemic are activities that may constitute a fraud.

They may relate to offering products such as drugs, medical supplies, disinfectants at inflated prices and, at the same time, being misleading as to their real value, quality or usefulness, and they may also consist in inducing to conclude unfavourable contracts by taking advantage of the difficult situation of the other party.

Prosecution of this type of offenses is dealt with by relevant authorities such as the police and the prosecutor’s office.

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