Hawley & Hazel Chemical (Taiwan) Co., Ltd.

Case:

Key Words:

toothpaste, comparative advertising, sensitivity relief

Reference:

Fair Trade Commission Decision of August 3, 2011 (the 1030th Commissioners' Meeting), Disposition Kung Ch'u Tzu No. 100138

Industry:

Manufacture of Cleaning Preparations (1930)

Relevant Laws:

Article 24 of the Fair Trade Law

Summary:

1. The FTC was informed that in a comparative commercial for its Colgate Sensitive Pro-relief toothpaste (hereinafter referred to as the product), Hawley & Hazel Chemical (Taiwan) Co., Ltd. (hereinafter referred to as Hawley & Hazel) claimed that its product was "instantly effective, providing long-lasting relief" and "truly effective." The same commercial also had a narration saying "I will not use XXX (the brand name Sensodyne was muted) again" and "because I am switching to Colgate – the toothpaste that really works." The product was placed side by side with Sensodyne which was rendered mosaic. Hawley & Hazel's intention to compare its product with Sensodyne was obvious. However, different technologies have been applied to produce the two toothpastes and both can achieve the same effect of relief of sensitivity and pain. The said commercial made consumers have wrong impressions and was in violation of Article 24 of the Fair Trade Law (FTL).
2. Findings of the FTC after investigation:
   (1)Hawley & Hazel had the said commercial made and played on various TV channels. It was also placed online to advertise the product.
   (2)Hawley & Hazel presented a number of clinical test reports to prove that its product had the capacity to relieve sensitivity whether it was applied directly on teeth or by brushing. The FTC asked the Department of Health (hereinafter referred to as the DOH) for professional opinions on the said reports. The reply from the DOH was that the reports did support the unique Pro-Argin? technology used to make the product indeed had the effect of "relieving dental sensitivity and pain."
3. Grounds for disposition:
   (1)The said commercial began with "we have invited users of other sensitivity-relief toothpastes to compare and tell how the Colgate Sensitive Pro-relief toothpaste is different." The following image showed the product side by side with mosaic-rendered toothpaste, with the narration that "I will not use XXX again because I am switching to Colgate – the toothpaste that really works," the commercial was obviously comparing the effectiveness of the product with that of other sensitivity-relief toothpastes on the market. The mosaic was divided into two sections. On the right were green squares and on the left white. In the bottom right corner was a line of words in white, while under the white mosaic on the left was a large area of lettering in blue. Matching with sensitivity-relief toothpastes available on the market showed these features were similar to those on the packaging of Sensodyne. After further observation, it is not difficult to identify the mosaic-rendered toothpaste as the Sensodyne toothpaste. Despite that the commercial did not indicate straightforward the brand or name of the object being compared, the content was obvious enough for consumers to have the associated impression. Hawley & Hazel also admitted that the muted sound was "Sensodyne". Hence, the toothpaste rendered mosaic was indeed the Sensodyne toothpaste.
   (2)As mentioned above, in the said commercial the product was placed side by side with the rendered-mosaic toothpaste and there was the narration that "I will not use XXX again" and "because I am switching to Colgate – the toothpaste that really works." It gave consumers the impression that the product was the sensitivity-relief toothpaste that really worked, especially in comparison with the rendered-mosaic toothpaste (Sensodyne). The investigation revealed that the principal ingredient in Sensodyne was 5% potassium nitrate. According to the "Words and Phrases Allowed on Labels of Regular Toothpastes" established by the DOH, the wording of "Help relieve the discomfort of sensitive teeth" and "Reduce the pain of sensitive teeth" indicates "true effectiveness." In the said commercial, the advertiser only subjectively claimed that the new pro-Argin? technology used to make the product was more superior in relief of pain from sensitive teeth. This can be inferred from the firm statement that "I will never use XXX again because I am switching to Colgate – the toothpaste that really works" while the product was placed next to Sensodyne, the competing product, which was rendered mosaic. This was enough to create the impression in consumers that the product was the truly effective sensitivity-relief toothpaste on the market and other toothpastes or Sensodyne was not really effective. It could cause consumers to have misconceptions or make wrong decisions. It was in violation of market competition principle and the business ethics of fair competition.
   (3)Based on the above findings, the comparison Hawley & Hazel made in the said commercial with the quality of competitors' products was deemed obviously unfair conduct able to affect trading order in violation of Article 24 of the FTL. The FTC applied the first section of Article 41 of the same law, ordered the company to immediately cease its unlawful act, and also imposed on it an administrative fine of NT$400,000.

Appendix:
Hawley & Hazel Chemical (Taiwan) Co., Ltd.'s Uniform Invoice Number: 01515651

Summarized by: Huang, Li-Ming; Supervised by: Chi, Hsueh-Li