The Supreme Court has granted the Consumer Ombudsman leave to appeal the decision of the Market Court concerning marketing by XXL Sports & Outdoor Oy (XXL).
On 24 November 2015, the Market Court prohibited XXL from giving a misleading impression of the affordability of its prices and duration of its offers in its marketing.
The Market Court rejected, however, the Consumer Ombudsman´s request to prohibit XXL from using a price promise in marketing.
According to the Market Court, the price promise given by XXL does not mean that XXL would claim to have the cheapest prices, and a reasonably well informed and circumspect average consumer will not understand the price promise in that way, either.
In January 2016, the Consumer Ombudsman petitioned the Supreme Court for leave to appeal the decision of the Market Court.
The Consumer Ombudsman deemed that Market Court’s decision considers consumers as being rational actors, who study the content of the price promise and understand that the prices will not always be the cheapest on the market based on it.
In contract, in the Finnish Consumer Protection Act and the case law based on it, marketing has traditionally been assessed from the point of view of a consumer that is quickly browsing advertisements.
Research results from behavioural economics have also shown that in reality, people do not always act rationally or analyse information in a machine-like manner.
The Supreme Court has not previously assessed the concept of an average consumer in its judgments concerning consumer protection.
The Consumer Ombudsman therefore considers it important that a precedent is set on this issue.
Consumer Ombudsman petitions for leave to appeal the XXL decision of the Market Court(FCCA press release of 26 January 2016)