Bodywave Co., Ltd.’s “Red Wine Yeast Series” advertisement (Celebrity Interview, which had opinions and experiences, regarding the product in question, given by people other than the Respondent) published in magazines had false, untrue and misleading representations about the product quality, in violation of Article 21(1) of the Fair Trade Law

Chinese Taipei

Case:

Key Words:

untrue advertisement, cosmetics, spokesman

Reference:

Fair Trade Commission Decision of November 25, 2005 (the 733rd Commissioners' Meeting); Disposition Kung Ch’u Tzu No. 094126

Industry:

Wholesale of Cosmetics (4452)

Relevant Laws:

Article 21 (1)of the Fair Trade Law

Summary:

1. Bodywave Co., Ltd. (hereinafter referred to as “Bodywave”) published Red Wine Yeast Series advertisement in BAZZAR and Cosmopolitan magazines. In the said advertisement, the part of “Celebrity Interview” stated, “…after discovering that skin can also have red wine, it (the product) has immediately become Chen, Po-Yu’s (transliteration) new beauty weapon….” In the aforesaid advertisement, the Celebrity Interview had Ms. Chen’s photo and signature and the advertisement content expressed Ms. Chen’s opinion and experience regarding the product in question. Since Ms. Chen’s statement might be able to enhance the persuasion of the advertisement, Bodaywave should truthfully reflect Ms. Chen’s real opinions and experiences and shall not have any deceptive expressions or representations. Bodywave alleged that it provided testers to Ms. Chen at the press conference on June 17, 2002 and had inquired Ms. Chen’s thoughts about the testers more than once on the phone in 2003. Bodywave later on drafted the said Celebrity Interview based upon Ms. Chen’s impressions of the product in question. However, even Ms. Chen had used the testers of the product in question from June 17, 2002 to 2003 and had the aforementioned impressions of the product, it was one year later when the product became available in the market. During this one-year gap, Bodywave had never provided the official product to Ms. Chen. Bodywave should have informed Ms. Chen of whether the tester and the official product had the same quality and then confirmed Ms. Chen’s opinions about the product before publishing the aforesaid advertisement in April 2004. Bodywave claimed that it did not constitute any spokesman agreement with Ms. Chen and that it owned the copyrights of Ms. Chen’s photo in the advertisement. Therefore, Bodywave did not think it was necessary to confirm with Ms. Chen after the advertisement was finalized. Hence, it is very clear that such Celebrity Interview failed to truthfully reflect Ms. Chen’s real opinions and experiences regarding Bodywave’s official product sold in the market. Moreover, Ms. Chen denied using the product in question and expressing the statement in the aforesaid interview. Furthermore, Bodywave failed to provide any specific proof evidencing that it had ever provided any testers to Ms. Chen. Therefore, Bodywave employed deceptive expression or representation in the Celebrity Interview published in magazines to reflect other people’s opinions and experience of the product in question. Such an advertisement is sufficient to mislead general consumers into believing that Ms. Chen was also one of the users of the product in question. Bodywave had made false, untrue and misleading representations in its advertisement and ,therefore, violated Article 21(1) of the Fair Trade Law.
2. After taking into account the motive, purpose of the unlawful act, anticipated improper profits, the degree and duration of the act’s harm to trading order, benefits derived from the acts, business scale, operating condition, turnover and Bodywave’s market position, whether Bodywave was corrected or warned by the Central Competent Authority, past violation types, times, intervals and punishment, substantial evidence of repentance after being found in violation and the cooperativeness during the investigations, the Fair Trade Commission ordered Bodywave Co., Ltd. to immediately cease the aforesaid unlawful acts and imposed an administrative fine of NT$ 200,000 upon Bodywave Co., Ltd. in accordance with the forepart of Article 41 of the Fair Trade Law.

Summarized by Lin, Shu-Ling;
Supervised by Yeh, Tien-Fu

Appendix:
Bodywave Co., Ltd.’s Uniform Invoice Number: 84946852