The dissemination of false information about the medicinal properties of a cosmetic product without its registration as a medicinal product constitutes the misleading of consumers and unfair competition – SC CommCC

The dissemination by a business entity on the packaging of a cosmetic product of information about its ability to treat diseases without the corresponding registration of the product in the State Register of Medicinal Products of Ukraine constitutes the communication of false information. For the qualification of such actions as unfair competition it is sufficient that the very fact of the dissemination of information that may influence consumers’ intentions regarding the purchase of the goods be established, irrespective of the occurrence of actual losses for competitors.

This conclusion was reached by a panel of judges of the Commercial Cassation Court within the Supreme Court.

The manufacturer of a cosmetic product brought a claim against the Antimonopoly Committee of Ukraine (AMC) seeking recognition as invalid of a decision by which its actions were qualified as a violation of Article 15-1 of the Law of Ukraine “On Protection against Unfair Competition” in the form of the dissemination of information that misleads, and a fine was imposed.

In the AMC decision it was stated that the packaging of the cosmetic product “Rotokan” contained information about its efficacy in inflammatory diseases of the oral cavity, which could create in consumers the impression of its medicinal properties. At the same time the said product was not registered as a medicinal product, and the claimed properties were not confirmed by proper studies. A survey of consumers showed that such information influences the decision to purchase and is perceived predominantly as a characteristic of a medicinal product. In this connection the AMC reached the conclusion that the disseminated information was false and could confer on the manufacturer unlawful competitive advantages.

The courts of previous instances refused to grant the claim, noting that a product positioned as one that is applied in inflammatory diseases of the mucous membrane of the oral cavity must be entered in the State Register of Medicinal Products of Ukraine. The claimant, without conducting clinical trials of the cosmetic product, could have obtained unlawful advantages over other manufacturers not by reason of its own achievements but through the dissemination of false information.

In reviewing the case the Supreme Court noted that the dissemination of information that misleads, as a manifestation of unfair competition, must be assessed in the context of competitive relations and covers the communication of incomplete, inaccurate or false information that has influenced or may influence consumers’ intentions. For the qualification of a violation the occurrence of negative consequences is not required – it is sufficient to establish the very fact of such actions or the possibility of their influence.

The courts established that the claimant disseminated on the packaging of the cosmetic product information which, by its content, created in consumers the impression of properties inherent in a medicinal product, although such product was not registered as a medicinal product. The results of surveys confirmed that this information influences consumers’ intentions and is perceived by the majority as a medicinal product. The Supreme Court reached the conclusion that the courts of previous instances had correctly applied Article 15-1 of the Law of Ukraine “On Protection against Unfair Competition”.

The Commercial Cassation Court of the Supreme Court left the cassation appeal unsatisfied and upheld the decisions of the previous courts without changes.

Resolution of the Commercial Cassation Court of the Supreme Court of 20 March 2026 in case No. 910/9006/25 – http://reyestr.court.gov.ua/Review/135844764.

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