Marketing and Advertising Law
Legal proof that Sugar causes Weight gain and Tooth decay is
Adding one teaspoon or two of sugar to tea is normal.
Adding 40 teaspoons of sugar to a can or energy drink is
also normal. But it won't be normal for much longer.
Here is why:
Last week, the Federal Court gave a landmark decision
that high levels of sugar in food are unhealthy because they
lead to weight gain and dental caries. This is the first
time this link has been made by the courts in Australia.
The decision concerned a Heinz snack food for children
aged 1 - 3, called Shredz. The package contained images and
words which gave the impression that the food was healthy.
There was a young boy climbing a tree, a green apple,
strawberries, pumpkin slices and corn kernels. There were
statements - 99% fruit and veg, no preservatives and no
artificial colours or flavours.
The food sticks inside the packet were high in sugar. It
was not added sugar, it was sugar concentrate. Specifically,
a high proportion was apple which had been mashed and
dehydrated so much that the sugar level was 68.7% by weight.
One serve had the equivalent of three teaspoons of sugar.
The Court heard evidence from expert nutritionists and
dentists. It relied upon the World Health Organisation
Guideline for sugar intake for adults which for a 2 year old
child, the daily limit for added sugar / sugar concentrate
is three teaspoons.
The Court concluded that the Shredz snack food was
unhealthy because a child could be expected to consume more
food with added sugar / concentrated sugar during the day,
in addition to one serve of Shredz. It was also unhealthy in
terms of dental caries because of the high concentration of
sugar, and the 'stickiness' of the food sticks.
By formally proving the link between sugar and health,
particularly in terms of weight gain, the public health
consequences of excessive sugar intake have been emphasized.
The momentum is building to restrict the use of sugar in
food and drink, and to tax sugar (as many countries have
For more details on the decision,
Too much sugar makes Heinz snack food unhealthy for little
Is Nurofen better than Panadol a fact or just misleading
The pain relief market in Australia is lucrative - sales
were $580.54 million in the 2015 year in pharmacies,
supermarkets, petrol stations and convenience stores.
Reckitt the maker of Nurofen and Glaxco the maker of
Panadol have 71% of the pain relief market, in approximately
So it comes as no surprise that Reckitt would want to
increase its market share in such a lucrative market. Based
on a 1996 clinical study, it started a mass-marketing
campaign headlined by NUROFEN IS BETTER THAN PARACETAMOL for
The overall impression given by the advertising (see the
picture), particularly the graph with its bright red line
for Nurofen and 4 hour time frame, was that Nurofen delivers
faster and more effective relief from pain caused by common
headaches than does Panadol or paracetamol.
Glaxco was anxious to defend its market share for Panadol.
It decided to take legal proceedings to stop the Nurofen
marketing campaign, relying upon the argument that the
present state of scientific knowledge did not support the
claim that Nurofen was better than Panadol for headaches.
Glaxco was successful in the Federal Court. The Court
ruled that claims that Nurofen is better than Panadol for
headaches were misleading advertising.
Reckitt will need to find another way to increase its
For my case note on the decision
- Is Nurofen better than Panadol for a headache? The Federal
misleading to charge an extra $3 for Voltarin Osteo Gel?
Look at the picture and you will see the two types of
Voltarin Gel that you can buy at a pharmacy or in a
supermarket, both of which are described as good For the
temporary relief of local pain and inflammation.
Voltarin Emugel is the basic gel, while
Voltarin Osteo Gel looks to be superior because this is
added to the description associated with mild forms of
osteoarthritis of the knees and fingers, and it sells at
a higher price - at least $3 higher.
Why then is the Australian Consumer Watchdog - the ACCC -
is taking the makers, GSK and Novartis, to the Federal Court
claiming that they are misleading the public when they claim
Voltaren Osteo Gel is superior to Voltaren Emulgel?
The reason is simple - both types contain exactly the
same ingredient - diclofenac gel 11.6mg/g. When the ACCC
pointed this out to GSK and Novartis, they added on the
Voltaren Osteo Gel label Same effective formula as
Voltaren Emulgel. They did not remove the added
description associated with mild forms of osteoarthritis
.... or remove 'Osteo' from the name.
GSK and Novartis justify the higher price because the
Osteo Gel has a large blue triangular cap (see the picture)
which is easier to open for arthritis sufferers than the
small grooved round cap on the Emulgel tube.
The Federal Court case has only just begun. Watch this
space to see whether the Court agrees with the ACCC that the
description and the higher price are misleading the public
or GSK and Novartis succeed in proving the description and
higher price are justified.
For more information
click - GSK and Novartis are in hot water for
mislabelling Voltaren Osteo Gel to charge a premium price
Is a $6 million fine too low for
falsely labelling Nurofen packets?
To recap, what Reckitt Benckiser did between 2011 and
2015 was to sell the identical pain relief product - Nurofen
- in 4 differently labelled packets, at almost twice the
price of the standard Nurofen packet - see photo.
The Federal Court found that the labels were misleading.
The four packets had labels which stated that they were
targeted for different pain - one for Migraine Pain, one for
Tension Headaches, one for Back Pain and one for Period
Pain. In fact, each packet contained the same tablet, and
could be taken to relieve any of the pains.
The trial judge fined Reckitt Benckiser $1.7 million
which the appeal court increased to $6 million.
The question is - was the fine still too low considering
that sales were about $45 million, with at least $20 million
in profit? In other words, is a fine of $6 million high
enough to discourage it hapening again, or is it too low and
so will it be considered just the cost of doing business?
Belatedly, the Australian Competition and Consumer
Commission which had asked for the $6 million fine agrees.
It now proposes that fines based on profits derived from the
offending conduct - as high as 3 times the profits.
Too late for the Nurofen case - the horse has bolted!
For a detailed analysis
click - Higher penalties are coming for
conscious breaches of the Australian Consumer Law
What happens to the seller if
the oregano you buy is 50% olive leaf?
Dried oregano gives a spicy Mediterranean flavour to
tomato, pizza, beans and lamb.
It was therefore a matter of great concern when the
Australian consumer watchdog, the ACCC, tested packages
labelled Oregano, 100% Oregano and pure Oregano and found
impurities, mainly olive leaf.
While oregano does grow around olive trees, to have 50%
of the package consisting of olive leaves is more than just
a coincidence! It was proof positive for the ACCC to pursue
suppliers and retailers who marketed the oregano for
misleading the public.
And so it was that the ACCC has punished the oregano
suppliers and retailers for not taking precautions to ensure
that the oregano they sold was unadulterated.
Some were reprimanded after taking action to remedy the
misrepresentation, others provided court enforceable
undertakings to test the products for 3 years, and Hoyt's
Foods was fined $10,800. They were all 'named and shamed' by
the ACCC in media releases.
For more detail,
ACCC protects consumers against false marketing of oregano
There’s no such thing as a free bet in Australia
Free drinks, free coffee, free samples, free admission ...
all these offers use the word free to catch the attention of
the customer to sell a service or product.
So it was that
the online gambling company, Bet365 decided to use the
phrase $200 FREE BETS FOR NEW CUSTOMERS on the Opening Page
of its website. It was very successful - active users
increased by 83% over the previous year and wagering
revenues increased fourfold.
There was only one problem - when they posted the FREE
BETS phrase, they put an asterisk after the word CUSTOMERS*,
but did not put a click through button '*Terms & Conditions
Apply' underneath. Had they done so, then the new customer
have learned that they could only claim $200 in free bets if
they staked three times that amount and could withdraw their
winnings only if other conditions were satisfied.
Bet365 were prosecuted by the Australian Consumer
Regulator, the ACCC, because Bet365 had displayed the FREE
BETS phrase on its website without the Terms & Conditions
click through button for 302 days. The Federal Court found
that this was likely to mislead consumers and fined the two
Bet365 companies involved a total of $2,750,000 for
breaching the Australian Consumer Law.
There are two lessons here - for the consumer, there is
no such thing as a free bet (or anything else) because terms
and conditions apply; and for businesses, to make sure that
the terms and conditions which apply to free offers are
available to the consumer at the point where the free offer
For more information from a legal perspective, and for
Michael Field's comments from a marketing perspective,
click - There's no such thing as a free bet in
Did you know that all Nurofen Specific Pain Range tablets
have the same active ingredient?
Would you be angry if you were told that despite the
label "Migraine Pain' and the distinctive violet packet, the
tablet you are buying is exactly the same as the one in in
the green packet labelled 'Back Pain' or the burgundy packet
"Tension Headache' or the magenta packet 'Period Pain'?
The Australian Consumer & Competition Commission became so
angry with the makers of Nurofen, Reckitt Benckiser, that
last year they prosecuted them for misleading labelling, in
breach of the Australian Consumer Law.
Last week, the Federal Court ordered Reckitt Benckiser to
pay a fine of $1.7 million for its misleading packaging and
website. In addition, they were ordered to change their
packaging to make it clear that the tablet was suitable for
the relief of all kinds of pain.
So, next time you are in a pharmacy or supermarket
looking around for a pain relief medication, look at the
Nurofen Specific Pain Range packets, see how they are
labelled as good for specific pain, and notice how they all
contain the same active ingredient - ibuprofen lysine 342
See Full Article
How the Nurofen Specific Pain
Range marketing strategy was undone as misleading by the
It was a brilliant marketing strategy … instead of
marketing the fast-acting Nurofen for pain relief as one
product effective for a range of pains (as the standard
Nurofen is marketed), to market it as four products targeted
to specific pains, namely migraine pain, tension headache,
period pain and back pain. It’s known as segmenting the
This marketing strategy was undone as misleading as a
result of the recent decision of the Federal Court of
Australia (Edelman J) in Australian Competition and
Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd
(No 4)  FCA 1408 (11 December 2015).
See Full Article
Not Everything Is Fresh Today!
Coles Supermarkets position fresh fruit, fresh cut
flowers and fresh vegetables at the entrance to give
shoppers the impression of entering into a natural oasis
where everything is fresh today.
As the shopper passes by the fresh produce displays,
according to the Coles website they see the “golden baked
crust” and smell “tempting aromas” of the fresh bread
displays below the “Baked Today, Sold Today” signage at the
Is it any wonder that the shopper believes that the bread
displayed was freshly baked on site?
See Full Article
fined 3 cents per loaf for misleading 'par-baked bread'
See Full Article