Organisers of promotional lottery the Great Plus Lottery and Feel the Excitement with Prince Polo have been misleading consumers – decided the President of UOKiK and imposed fines on them in the total amount of nearly PLN 300 thousand
Misleading consumers is considered to be the unfair and prohibited market practice. Furthermore, under the law, every undertaking should act in accordance with good customs. Failing to provide reliable, true and complete information about offered products or services is recognized as contrary to them. Due to unfair market practices or actions contrary to good customs, a consumer is exposed to the danger of buying a product or a service, which they wouldn’t buy, if they had known the actual conditions of the offer. The recently completed proceedings demonstrate that undertakings do not always keep in mind the prohibition of misleading the weakest market participants and about the obligation to provide the complete information. The President of UOKiK contested practices of Just Mobile – the organiser of the SMS lottery for the mobile phone networks owned by Polkomtel and concern Kraft Food Polska – the organiser of the lottery promoting the Prince Polo wafers.
Just Mobile from Katowice applied the so called aggressive market practices. The Office institutedproceedings against the undertaking in August 2011 following numerous complaints from consumers. The Great Plus Lottery organized by the company was addressed to people using the Polkomtel mobile network and lasted from October 2010 to April 2011. The President of the Office was concerned with text messages received by consumers informing about winning a car, e.g. Would you accept the possible COLLECTION of the GOLF car in Warsaw? Send the SMS with the message YES to 7419 (PLN 4.88). Messages clearly implied that a consumer had already received the award and they were only required to send the SMS confirming collecting the prize, whereas sending the SMS guaranteed only the participation in the car lottery drawing.
Pursuant to the law, making the impression, that the consumer has obtained or will obtain, under certain condition, an award, whereas in fact the award does not exist or gaining it is dependent on bearing some expenditures, is considered to be one of the prohibited, unfair market practices. Due to the violation of collective consumer interests, the President of UOKiK imposed on Just Mobile a fine in the total amount of PLN 130 952. The decision, however, is not final and the undertaking may appeal to the court.
The proceedings against Kraft Foods Polska were instituted in February 2012. The promotional packagings of Prince Polo were available for purchase in May and June 2011. The packaging informed that in order to take part in the award draw, it is only necessary to register a code from the packaging through the website or the SMS and keep the packaging or its part including the code. There was no information that, according to the lottery rules, providing a proof of purchase was the necessary condition for receiving an award (a receipt or an invoice). As a result, consumers who had bought the product, but did not keep the proof of purchase, could not receive the award. Furthermore, consumers who had bought sweets from vending machines, which do not issue receipts, were completely deprived of this opportunity.
In the opinion of the Office, for many consumers the prospect of winning an award might have had a great influence on selecting the product for purchase. Therefore, all substantial criteria entitling a consumer to participate in the lottery should be included on the packaging of wafers. The President of the Office established that the undertaking did not fulfil the obligation to provide consumers with reliable information about the offered product and imposed on Kraft Foods Polska a fine amounting to PLN 162 503 due to applying practices violating the collective interests of consumers. The positive is that the company has attempted to settle by way of conciliation the dispute with consumers who reported their objections concerning the lack of proper information on the promotional packagings of Prince Polo. Consumers, with whom it managed to contact (jointly 80 persons), received letters of apologies and gifts including baskets filled with products in the value of about PLN 100. The decision is not final and the undertaking may appeal to the court.
In case of an individual dispute with an entrepreneur, consumers may receive the free of charge assistance of consumer ombudsmen. Pursuing claims might also be facilitated by the Act on combating unfair market practices, which gives consumers the possibility to bring an action in individual disputes with undertakings. In the course of the proceedings, the court verifies, whether a given market practice of the undertaking can be pronounced unfair. In such case, the entrepreneur itself must prove before the court that the applied practice was not misleading for consumers.