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Guidance on misleading "faux fur" claims in clothes and accessories

09 July 2019. Published by Oliver Bray, Partner and Stuart Harris, Associate

The Committee of Advertising Practice (CAP) has issued an Enforcement Notice advising that retailers should be careful as to how they may unwittingly advertise products as "faux fur" when they may actually contain real animal fur.

The key issue

 

The Committee of Advertising Practice (CAP) has issued an Enforcement Notice advising that retailers should be careful as to how they may unwittingly advertise products as "faux fur" when they may actually contain real animal fur.

Retailers must check that their faux fur products are in fact faux fur. CAP has advised that the best method of checking is by conducting laboratory analysis but equally that retailers can use a three-step test to identify the difference between real and faux fur.  This includes checking the base of the fur (faux fur will usually have threaded fabric from which the “hairs” emerge), checking the tips of the fur (real fur usually tapers to a point which faux fur does not) and burning a sample of the fur (real fur will singe and burn like human hair whilst faux fur melts and smells like burnt plastic).

The Enforcement Notice also includes some general do’s and don’ts for retailers who sell faux fur products.  These include being as transparent as possible about the materials in advertised products, and not assuming that a low cost of a fur product from a supplier means that it is faux fur. Put simply, retailers are advised to use caution and not label the product as "faux fur" when they are in doubt.

Why is this important for retailers?

The Enforcement Notice recognises that in most instances retailers are not deliberately trying to mislead consumers about faux fur products, and that the advertisement of faux fur products which in fact contain real fur is usually a result of supply chain issues or a lack of education.  However, the Notice also highlights that it is the advertiser’s responsibility not to claim that products are made from faux fur if they contain real fur.  The Enforcement Notice states that targeted action will be taken by CAP’s compliance team from 11 February 2019 in relation to misleading ads.  Retailers selling faux fur products would do well to start taking steps to ensure that their faux fur products do not contain real fur and that they comply with the CAP Code.

The development

 

CAP has recently issued an “Enforcement Notice on Misleading ‘Faux Fur’ claims in clothes and accessories” following two ASA rulings which found that consumers had been misled by advertisements for faux fur products which had actually contained real fur, in contravention of Section 3 of the CAP Code. The Enforcement Notice, published on 17 January 2019, encompasses advertising across all media, including websites, social media platforms and online marketplaces and platforms.  It requires all retailers to take steps to ensure that they do not advertise products as containing faux fur if in fact they contain real fur.

Digging deeper

The ASA rulings related to a “Faux Fur Pom Pom Jumper” and a “Faux Fur Pom Pom Headband” which were found to contain real animal fur.  The ASA found that the retailers who had advertised the products had breached sections 3.1 and 3.7 of the CAP Code.  Section 3.1 says that “marketing communications must not materially mislead or be likely to do so” and section 3.7 states that “before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation.  The ASA may regard claims as misleading in the absence of adequate substantiation”.

The Enforcement Notice also refers to relevant legislation which retailers must comply with, including the Consumer Protection from Unfair Trading Regulations (CPRs) and The Textile Regulation (EU) No 1007/2011 (the Textile Regulation).  Notably, section 6(1) of the CPRs prohibits a misleading omission of information that causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise.  As the RSPCA has conducted a survey to which 95% of participants responded that they would never wear real fur, clearly advertising a product as containing faux fur when it in fact contains real fur would constitute such a misleading omission.

Also relevant is Article 13 of the Textile Regulations, which requires any textile process containing non-textile parts of animal origin to be labelled as “contains non-textile parts of animal origin”.

Want more like this? This blog was adapted for retail from our snapshot series, bringing you a regular roundup of key legal developments for the modern commercial lawyer.