Claims of First Place in Advertisements – An Evaluation within the Framework of the Court of Cassation and Advertising Board Decisions

10.07.2024

1. Introduction

Advertisers try to use the most assertive statements in advertisements that will attract the attention of consumers. One of these statements is the claim that the relevant product or service is the number one, leading, or first product in Turkey or worldwide. These claims are widely used in all sectors. Phrases such as “Turkey’s No. 1 shopping site”, “The world’s first brand”, and “The world’s most preferred product” are frequently used by consumers. In this article, we will discuss all aspects of first-place claims, one of the most common types of comparative advertising.

2. Legal Framework

The Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”) defines comparative advertisements as advertisements that compare the goods or services promoted with the goods or services of competitors that have the same purpose or meet the same need. In any case, the claims made in comparative advertisements and subject to comparison must be substantiated by information and documents obtained from the relevant departments of universities or accredited or independent research, testing, and evaluation institutions.

In advertisements claiming first place, there is no direct comparison with direct competitors. While the advertiser claims that its brand or product is “first”, it makes an indirect comparison with all its competitors. Accordingly, advertisements containing first-place claims must also comply with the rules of comparative advertising.

3. Board and Judicial Practice

The Court of Cassation examines claims of primacy from a general framework under the unfair competition provisions of the Turkish Commercial Code. The Advertising Board, on the other hand, inspects whether the relevant advertisements comply with the specific rules in the Regulation. Therefore, the approach of the Court of Cassation and the Advertising Board is not parallel in all cases. We will evaluate the examination methods and criteria of these two authorities in this section.

I. The Court of Cassation and the Claim of First-Place

As mentioned above, the claim of first place is one of the oldest and most common types of marketing. For this reason, there are also past decisions on the subject. The decision of the 11th Civil Chamber of the Court of Cassation “DYO Boyada Birinci” is one of them.

In this case, the advertiser DYO used a typical claim of first place and claimed that it was the leader in its sector. In the lawsuit filed against it, DYO claimed that it ranked first in its sector in terms of its date of establishment, market share, annual production, paint types, and quality. In the first instance court decision upheld by the Court of Cassation, it was found that a general claim of first place was misleading. The court accepted that the statements in the advertisement pushed other paint companies to the position of “second”, which constituted unfair competition.

This opinion of the Court, and therefore the Court of Cassation, paves the way for accepting that all claims of first place are unlawful. This decision has been criticized in the doctrine. The member who disagreed with the decision stated that harmless and ordinary boasts inherent in advertising would not mislead consumers. The member suggested that the claim that “DYO is the First in Paint” should also be evaluated within this scope. As a matter of fact, the Court of Cassation accepted the statement “You are number one in Turkey” made by a music radio host during the broadcast as legitimate within the competition rules of commercial and broadcasting life.

In a more recent decision of the Court of Cassation, it was decided that this action constituted unfair competition since the advertiser failed to prove its claims of “one in the world, always unique and first in artificial insemination, Turkey’s preference in genetic breeding” and “world leader in genetics”. In this respect, it is possible to say that the Court of Cassation expects the claims of first-place to be detailed and proven.

II. Standards of the Advertising Board

The Advertising Board examines first-place claims in detail on the accuracy of the claim, whether the documents on which the claim is based cover the period in which the advertisement was published, and whether consumers were provided with accurate information.

One of the first decisions of the Board on this issue concerns the claim of “Turkey’s number one motor oil producer”. In this decision, the Board found that it was not clear whether the claim of first place was based on production capacity, market share, or quality. The Board underlined that the advertiser must fulfill the burden of proof regarding the criterion on which the advertiser relies. This decision of the Board is similar to the Court of Cassation’s “DYO Boyaada Birinci” decision. With this decision, we can say that the Board accepts that unelaborated general claims of first place are unlawful, but that the unlawfulness may be eliminated if the claim of first place is explained and proven.

In the following years, in line with the Board’s opinion, advertisers started to elaborate their claims of first place. An advertiser using the phrase “World’s No. 1 brand of irons” included the phrases “According to January-June 2011 Eastern Europe turnover market shares, compared to brands accounting for 83% of the steam iron market” as subtitles and “According to 2002-2012 Euromonitor sales volume results” as static text. However, the Board found that all these expressions created a confusion of meaning for consumers and the source of the claim could not be fully understood. Therefore, an infringement decision was issued. As can be seen, it is not sufficient to include the reports on which the claims of first place are based in the advertisements.

It is also necessary to evaluate the scope of the reports on which the claims of first place are based. In 2013, an advertiser using the claims “World’s No. 1 dandruff shampoo” and “World’s No. 1” used the phrase “According to July 2012 – June 2013 global marketing volume sales data” as a subtitle. At first glance, this advertisement does not appear to be unlawful. However, the Board determined that the report cited as the basis of the claim was a study conducted in the Turkish market. The Board decided that the claim of worldwide first place by citing the research conducted for Turkey constituted a violation.

The above examples are cases where advertisers have used the services of independent research companies but failed to provide adequate information. There is also the misuse of some random rankings. An advertiser claiming to be “the world’s No. 1 Islamic fashion e-commerce website” cited the Global Islamic Economic Report as the basis for this claim. However, the Board found that the report only named the most popular e-commerce sites in the world and did not rank them in order of superiority, but that the advertiser misled consumers by taking advantage of the fact that the advertiser was coincidentally at the top of the list. Accordingly, an infringement decision was issued.

Failure to include the leading brands of the sector in the sector surveys may also be considered as a reason for infringement. In 2023, the Board found that the advertisement containing the phrase “The number one choice of pediatricians” did not include competing brands that are widely used by consumers and ruled an infringement decision. In another decision of the Board, the claim “Turkey’s number one choice” and the subtitle “Turkey’s best-selling espresso, filter coffee and capsule brand in the period July 2020-June 2021” were analyzed. The Board found the “number one choice” claim misleading, noting that these product categories constitute a very small portion of the total coffee market in terms of turnover. These decisions once again demonstrate the need to combine accurate research with accurate statements.

The Board’s 2016 decision on the phrase “World’s No. 1 Best-Selling Fruit Juice Brand” is an example of a lawful claim of first place. The Board found the expression used by the advertiser, the independent research company report containing the sales figures, and the way the report was conveyed to consumers to be lawful. Indeed, the expression “best seller” in such advertisements keeps advertisers in a very safe area.

III. Problems with Claims of First Place

When the above decisions are analyzed, it seems unlikely that the Advertising Board will penalize advertisers who are in the first place in the sector, have scientific reports on this subject, and provide good information to consumers. However, very different problems may arise in practice.

We encounter the first of these problems in the decision of the Advertising Board, which examined the phrase “No. 1 Brand of Dermatologists”. The advertiser published the advertisement containing this claim on 11.01.2022 in line with the June-August 2021 data of an independent research company. According to the results of a different research conducted by the same independent research company between October and November 2021, the Board determined that the validity of the claim in question was no longer valid. Therefore, a violation decision was issued.

In another decision, the Board examined the advertiser’s competitor’s claim that “N°1 is the brand most recommended by dermatologists” based on the results of a survey conducted between October and November 2021. This time, the Board found that the results of a different survey conducted by another research company between November and December 2021 contradicted the report covering October and November 2021. The Board stated that the promotion of different products by different companies with the phrase “The Brand Most Recommended by Dermatologists” in the same date range confused consumers. In cases where there is no clear difference in the first place and research is conducted by different organizations, similar problems are frequently experienced.

Another problem is the mismatch between the date of preparation of the reports of research companies and the date of the advertisement. According to the Regulation, the reports submitted as proof of the allegations must prove the allegations in the advertisement at the time of publication of the advertisement. As is known, sector surveys are sometimes conducted periodically and sometimes annually. These reports are prepared as a result of a long study and presented to the attention of those concerned as a result of this study. For example, a sector report covering the year 2023 may only be published in April 2024. Due to the natural flow of life, the actual situation in April 2024 and the data for the whole year 2023 may not be the same or similar. In this case, how can an advertiser, which is determined by scientific research to be the first in the sector in 2023, use its claim of first place in 2024? The answer to this question is not clear.

Based on the report conducted in January-February 2020, the Board deemed the phrase “Pharmacists’ No. 1 brand” used in the promotions published in 2022 as unlawful. Again in July 2019, a violation decision was issued because a number claim used was based on data from 2018.

In our opinion, what is important for the Board is the actual situation at the time of publication of the advertisement. The Board is not bound by the duration of the claim usage rights granted to advertisers by research companies or the scope of the research conducted. As a rule, the Board does not impose a direct penalty on the advertiser who uses the first-place claim according to the previous year’s data, provided that other conditions are met. However, in the presence of reports based on actual or more recent data that contradict the advertiser’s claim, an infringement decision may be issued.

IV. A Current Decision: Hepsiburada

The D-Market/Hepsiburada decision published by the Advertising Board on July 9, 2024, deserves to be evaluated separately as it is a good example of the problems related to first-place claims and the Board’s standards. In this decision, the Board evaluated the first-place claims published by Hepsiburada in various media. In some media, Hepsiburada, citing an online consumer survey conducted by an independent research company, claimed that “Turkey’s No. 1. The most recommended e-commerce brand”, and in some media outlets, Hepsiburada made promotions such as ‘No. 1 Hepsiburada offers door-to-door returns’ and ‘Relax, No. 1 Hepsiburada has all original products’, without any justification.

In its decision, the Board found that the claim of “Turkey’s most recommended e-commerce brand” was proven in accordance with the Regulation. However, the Board stated that the first-place claims used in conjunction with this statement were not shown to complement each other and that the relevant online consumer research was not sufficient in terms of scope and accuracy. In addition, it was decided that Hepsiburada’s No. 1 advertisements, which were made without showing any basis and without specifying in which field it was the first, were also unlawful. For all these reasons, Hepsiburada was imposed an administrative fine of 2,200,258-TL.

With this decision, the Board implies that research conducted with a limited community and based on subjective statements will not be sufficient for primary claims. This again demonstrates that the scope of action for first-instance claims is very narrow.

4. Conclusion

Every brand that pushes for the first-place in the sector wants to claim first place. Indeed, it is difficult to say that consumers are not affected by the claim of first place. Nevertheless, first-place claims are among the leading advertisements that lead competitors to file complaints. Therefore, it is recommended that advertisements containing these claims be prepared in accordance with the Regulation and Board standards.

Claims of first place must in all cases be substantiated by information and documents from the relevant departments of universities or accredited or independent research, testing, and evaluation organizations.

General first-place claims used without any explanation are likely to be penalized.

In advertisements claiming first place, the information of the independent research report revealing the first place should be conveyed to the consumer through methods such as subtitles/ footnotes. This information should not be prepared in a way to mislead consumers.

What matters for the Board is the actual situation at the time of publication of the advertisement, not the period for which the independent research company authorized the use of the claim.