Under Turkish Law, advertisements are regulated under "Protection of Consumers Law" no. 4077 ("Law No.4077") and "Regulation on Principles and Application of Commercial Advertisements and Announcements" published in the Official Gazette No. 14 June 2003 and numbered 25138 ("Advertisement Regulation").
Among other types of violations cited under the legislation, "misleading advertising" constitutes an essential part of the violations due to its extensive scope and the approach of the Advertisement Board is quite strict regarding advertisements having a misleading basis.
In General
According to article 16 of the Law No. 4077, advertisements and announcements shall conform to the law; principles adopted by the Board of Advertisement, general morality, public order, personal rights and shall be true and correct. The Article further stipulates that "no advertisement, announcements or implied advertisement that is deceptive or misleading the consumer, or abusing his lack of experience or knowledge shall be allowed". Article 16/4 also sets forth that the advertiser is under the obligation to prove the material claims referred in the advertisement or the announcement.
Article 7(c) of the Advertisement Regulation provides that "advertisements shall not contain expressions or images that could mislead the consumers directly or indirectly in terms of bringing forth false impressions by providing incomplete information, leading to confusion or presenting exaggerated claims". The Regulation further states that the advertisements shall not mislead consumers in particular with the characteristics, value, payment conditions, term of delivery, guarantee, maintenance, intellectual property rights of the products.
According to article 25 of Law no. 4077, administrative measures by means of precautionary suspension and/or suspension and/or correction of the advertisement and/or administrative fine of Turkish Lira 7,3951 shall be applied depending on the severity of the violation against those who violates Article 16 of Law no. 4077. If the advertisement is published or broadcasted countrywide via printed, audio, visual and other means, the administrative fine shall be calculated as ten times more of the original fine. If the violation is repeated within the same year, the administrative fine will be doubled.
The competent authority regarding the advertisements is the Advertisement Board ("Advertisement Board" or the "Board") established under the Turkish Ministry of Industry and Trade. The Board convenes each month and reviews advertisements that is claimed to be violating the law and impose penalties on the relevant parties. "All type of advertisements and announcements" fall within the scope of the Board's duty. The Board does not only consider Law no. 4077 in its decisions but also takes into consideration the provisions of the other applicable legislation. The resolutions of the Board are published monthly in its official website. The Board is entitled to review claims as to the advertisements upon complaints or ex-officio and may seek opinion of the experts on the subject-matter of the claim such as the universities.
Among many decisions of the Board regarding misleading advertisement, the followings can be submitted as examples of the Board's approach to the misleading advertisements: in a recent decision concerning a mobile network operator, the Board decided that the statement "we are where no one can cover" is misleading as it may not technically possible for a mobile network operator to cover geographically 100% of Turkey. In another decision concerning a cleaning product, the Board imposed fine for the statement as"...with foam that lasts 4 times more" and "this gel stands 4 times more than the other leader dishwasher liquids..." which was found misleading where the claims were not scientifically proven.
Article 5 (e) of the Advertisement Regulation states that "advertisements shall be prepared by taking into account the average advertisement spectator's perception level and possible effects of the advertisement on consumers". In parallel with this article, the Board also considers the "perception of average consumer" while granting decisions. In a recent decision concerning an internet service provider's campaign, the Board concluded that giving the main information with small subtitles is misleading since average consumer will consider the visual advertisement and not the small subtitles.
Advertisement Board decisions can be challenged in administrative courts. According to article 26 of Law No. 4077, a lawsuit against Advertisement Board' decisions shall be filed within fifteen days following the notification of the decision.
Use of Statistics
Concerning misleading advertisements, especially use of statistics in advertisements requires specific attention.
Article 7(g) of Advertisement Regulation states that "advertisements shall not distort research findings or quotations from technical scientific publications. Statistics shall not be presented so that they bring about results different than the actual results. Scientific terminology shall not be used in a misleading manner. Inappropriate scientific expressions and scientific terminology that present the claims as if they have a scientific basis that does not exist in reality shall not be used in advertisements".
Misleading Advertising in Some Specific Areas of the Turkish Law
Cosmetic Legislation
Article 10 of Cosmetic Regulation published in the Official Gazette dated 23 May 2005 and numbered 25823 states that texts, names, trademarks, pictures, designs or other shapes used in advertisements shall not be used in a way misleading the consumers regarding the characteristic of the product.
Advertisement Board is particularly sensitive on cosmetic product advertisements, especially when statistics are used in the advertisement.
In an advertisement, of a cosmetic product, the Board concluded that the statements as "In an hour: smooth out wrinkles in the ratio of 60%. In a month: smooth out wrinkles in the ratio of 88%. In two months: new material development increases in the ratio of 19%" were misleading, because the scope of the research statistics were based on was too narrow and insufficient to prove a significant statistical result.
Food Legislation
Under Production, Consumption and Supervision of Foods Regulation published in the Official Gazette dated 9 June 1998 and numbered 23367 ("Food Regulation"), there is a specific provision regarding food advertisements setting forth general principles of food advertisements and misleading food advertisements. Accordingly, it is stated under the Food Regulation that among others, exaggeration, wrong scientific researches, vague statements constitute examples of misleading advertisement.
In a recent decision concerning a food product Advertisement Board concluded that the statement "100% natural" and "Turkey's first and only pudding that is 100% natural" was misleading for the consumers.
Footnote
1. Approximately 3400€ as of 13 Sept. 2011.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
