August 19, 2019

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Faux or Fur?

The Committee of Advertising Practice (“CAP”) recently drew attention to a number of misleading “faux fur” claims in relation to certain clothes and accessories in its enforcement notice published on 17 January 2019.

The notice records CAP’s concern that consumers have been misled by ads for “faux fur” products, in contravention of Section 3 of the UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (“CAP Code“). The enforcement notice informed offending retailers that CAP’s compliance team would take targeted enforcement action from 11 February 2019 if misleading ads continue to be used.

What is “faux fur”?

Faux or fake fur is any material designed to resemble fur, normally as part of a piece of clothing, and is recognised as an ‘animal friendly’ approach to fur fashion adopted by ethically, and cost, conscious consumers. Although fur farms were banned in the UK in 2003, real fur farmed in other countries is still making its way into checkout baskets, misleadingly advertised as “faux fur”.

As consumers become more educated on product origins and environmental impacts, there is a demand for sustainable products and the RSPCA reported that in a survey, 95% of the public responded saying that they would never wear real fur. Misleading advertising, as highlighted by CAP’s enforcement notice, will most likely result in an anti-fur majority purchasing clothes and accessories they may not otherwise have chosen.

Misleading Ads

The Advertising Standards Authority (“ASA”) investigated two separate “faux fur” claims detailed in CAP’s enforcement notice. The first in relation to a “Faux Fur Pom Pom Jumper” and the second into a “Faux Fur Pom Pom Headband”. Independent textiles analysis reports were commissioned by the complainants in both instances and the samples provided were found to contain animal fur, most likely rabbit.

The ASA held that the retailers in question had breached sections 3.1 and 3.7 of the CAP Code as a consequence of advertising the above products as containing “faux fur”. Section 3.1 states that “marketing communications must not materially mislead or be likely to do so” whilst section 3.7 requires marketers to hold documentary evidence in order to prove claims and be capable of objective substantiation. Without such documentary evidence, the ASA may regard claims as misleading. Section 3.7 was of greater relevance to the “Faux Fur Pom Pom Jumper” advertisement as the quality control team had not retained any record of their tests performed on the product.

The Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”) and The Textile Regulation (EU) No 1007/2011 (“Textile Regulations”) are examples of other relevant legislation identified in CAP’s enforcement notice. Regulation 6(1) of the CPRs prohibits the omission of material information which but for its inclusion, the average consumer would most likely not have made the transactional decision. This is further reinforced by Article 13 of the Textile Regulations which requires any textile products containing non-textile parts of animal origin to be labelled with the phrase ‘contains non-textile parts of animal origin’.

Following the ASA findings, both retailers were provided with the deadline of 11 February 2019 to ensure that their online advertising is compliant with both the CAP Code and legislation.

“Faux Fur” cases such as these have led to the Environment, Food and Rural Affairs Committee proposing a ban on fur in order to remove the possibility of consumers being misled into purchasing real fur, thinking they are buying fake (a copy of the Committee’s report can be read here). The coming weeks will reveal whether targeted enforcement action against retailers will be necessary, and whether 2019 could be the year that the UK high street becomes genuinely fur free.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Carlton Daniel, intellectual property and technology lawyer, London, Squire Patton Boggs
Partner

Carlton Daniel is a partner in our Intellectual Property & Technology team based in our London office. His practice incorporates the full range of specialist advice in the advertising, marketing and media sectors, and he handles both contentious and non-contentious matters. His practice ranges from advising on intellectual property rights (including trade marks, designs, copyright and confidential information) to commercial contracts, licensing, brand endorsement, sponsorship, product placement, privacy, defamation, confidentiality, data compliance and advertising...

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