POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Damian Ludwiniak, Sołtysiński Kawecki & Szlęzak
President of the OCCP. This phenomenon is part of a broader trend and an initiative to provide EU consum - ers with greater protection against unfair (including deceptive) business practices.
rest with the advertiser. Under the UCL, the burden of proving the truthfulness of statements made in an advertisement rests with the defendant. This means that advertisers need to be prepared to present evi - dence supporting the truthfulness/and non-mislead - ing character of their advertising claims. 2.4 Product Demonstrations Under Polish law, product demonstrations (presenta - tions) form one of the elements taken into account when assessing whether a given advertisement is mis - leading. For example, under the UMPL, all elements must be taken into account when assessing whether a market practice (including advertising) is misleading by action, such as the way a product is presented. The UMPL also expressly prohibits “bait and switch” practices, which involve offering to sell a product at a certain price and then failing to provide the advertised product to consumers. 2.5 Endorsements and Testimonials The UMPL contains a broad list of commercial prac - tices that are regarded as unfair in B2C relations in all circumstances. The Polish legislature has also provid - ed a list of practices pertaining to consumer reviews and consumer opinions, with the following activities being considered unfair in all circumstances under the UMPL: • a trader who gives access to consumer reviews of products, claiming that those reviews have been posted by consumers who have used or purchased the product, even though the trader has not taken reasonable and proportionate steps to verify that the reviews originate from those consumers; and • posting or causing another person to post false consumer opinions or recommendations, or dis - torting consumer opinions or recommendations for the purposes of promoting products. In terms of endorsements, the UMPL prohibits, in all circumstances, falsely claiming that a trader (includ - ing their commercial practices) or a product has been approved, endorsed or authorised by a public or pri - vate body, or making such a claim without comply - ing with the terms of the approval, endorsement or authorisation.
2. Advertising Claims 2.1 Deceptive or Misleading Claims
Under the UCL, advertising is considered misleading if it may affect the client’s decision to purchase a prod - uct or service. Similarly, under the UMPL transposing EU Directive 2005/29, a market practice (including advertising) is considered misleading if it in any way causes or is likely to cause an average client to take a contractual decision that they would not have taken otherwise. It should also be noted that, under Polish law, mis - leading advertising may also occur as a result of omis - sion – eg, when an advertiser omits material infor - mation that the average consumer needs to make an informed contractual decision. 2.2 Regulation of Advertising Claims UCL The UCL provides that all elements need to be tak - en into consideration when assessing a misleading advertisement, particularly those concerning the quantity, quality, ingredients, manufacturing method, fitness for a particular purpose, uses, repair or main - tenance of the advertised products or services, as well as the customer’s behaviour. UMPL A similar approach was adopted in the UMPL, accord - ing to which all elements of a market practice should be taken into account when assessing whether or not it is misleading, including the circumstances in which the product is marketed. Irrespective of this, the UMPL sets out a broad list of commercial practices that shall be regarded as unfair in all circumstances, reflecting the list set out in Annexe I to EU Directive 2005/29. 2.3 Substantiation of Advertising Claims In both the UCL and the UMPL, the Polish legisla - ture introduced a rule that the burden of proof should
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