What you need to know
- A television commercial and in-store promotion claimed that Fairy Platinum dishwashing tablets cleaned stuck-on food better than Finish Quantum.
- Reckitt Benckiser (Australia) Pty Limited, the owner of the Finish branded products, filed an interlocutory application for an injunction to immediately discontinue the broadcast of the advertisement and in-store promotion.
- In determining whether the advertisement was misleading or deceptive in contravention of the Australian Consumer Law, the overall impression and dominant message of the advertisement were key considerations.
- Where a claim is substantiated by scientific testing, the court will rely on those findings where no other evidence to the contrary has been adduced.
What you need to do
- Be cautious when engaging in comparative marketing – the competitor is likely to closely scrutinise your claims and whether these can be substantiated.
- Always ensure any comparative claim is accurate and substantiated by evidence.
- When assessing what representations are conveyed by an advertisement, consider the overall dominant message or impression as well as specific, express claims.
Background
As outlined by Justice Lee in his judgment, “[t]he gentle rinse of dishwashing detergent is not reflective of the vigorous thrust of commercial rivalry between the protagonists”. On this occasion, the conflict between the parties concerned comparative advertising of dishwashing tablet products.
This proceeding was commenced by Reckitt Benckiser (Australia) Pty Limited (Reckitt Benckiser), the company behind the well-known Finish dishwashing products. It was brought in relation to a comparative television advertisement and in-store promotion run by a competitor, Procter & Gamble Australia Pty Limited (Procter & Gamble), which sells dishwashing products under the Fairy brand. Reckitt Benckiser sought an interlocutory injunction to immediately discontinue the broadcast of the advertisement and in-store promotion.
In summary, the advertisement is a 15 second video commencing with a woman holding a transparent baking dish, and asking herself questions as to why the dish remained dirty after washing. A blue packet in the background is marked with the words "Leading tablet". Neither party disputed that the reference was to Finish products. A superscript at the bottom left of the frame bears the words "Baked on starch". A voiceover states "It's not your fault, try a new tablet". Fairy Platinum is then introduced to the commercial with the admonition to "Switch to Fairy Platinum". The voiceover states "With triple action, its beats Finish Quantum at cleaning stuck-on food on the first wash". A further white superscript is added in the frame that reads "Third party laboratory tested with Finish Quantum in market as of Nov 2017 using baked on starch and baked on pasta". Similarly, the in-store promotion included the wording "Cleans Better than Finish Quantum* Even on stuck on food". The asterisk connected to a similar disclaimer regarding the third party laboratory testing.
What were the representations conveyed?
The proceeding required consideration of whether the advertisement conveyed representations that were false, misleading or deceptive or likely to mislead and deceive under sections 18 and 33 of the Australian Consumer Law (ACL).
Reckitt Benckiser submitted that the advertisement conveyed a number of representations, including that Finish dishwashing tablets are faulty, that Fairy Platinum is better than Finish Quantum at cleaning all stuck-on foods, that Fairy Platinum is superior to Finish Quantum for all stuck-on foods, and that there was current adequate foundation in scientific knowledge for each of the representations.
Did the testing support those representations?
Procter & Gamble supported its advertising claims with the findings of a third party laboratory test which assessed the cleaning performance of both Finish Quantum and Fairy Platinum. This test was conducted in accordance with the IKW Standard, which is an internationally accepted industry standard for the assessment of the cleaning ability of dishwashing tablets.
In assessing the dishwashing tablets’ ability to wash seven different types of “soils” (including pasta, minced meat, starch and egg yolk), Fairy Platinum performed significantly better than Finish Quantum in four soil classes, and was sufficiently close to be regarded as comparable in the remaining three. However, his Honour found that the report supported the conclusion that Fairy Platinum had an overall generally better cleaning performance than Finish Quantum.
Reckitt Benckiser did not supply any evidence in respect of the testing of the tablets, and so the laboratory results were not contradicted.
Findings
His Honour explained that in order to determine if the advertisement and in-store promotion constituted misleading or deceptive conduct, a two-step analysis was required. Inquiry had to be made as to:
- whether or not any of the pleaded representations are conveyed in the advertisement; and
- whether any of the representations conveyed are false, misleading or deceptive or likely to mislead or deceive.
His Honour outlined that it was necessary to view the conduct as a whole, and that the dominant message was of crucial importance. His Honour relied on authority that stated that a false dominant impression will not be ameliorated by the accuracy derived from careful analysis of all of the constituent parts of the whole.
His Honour also considered the principles of granting or refusing an injunction, including the requirement that the party bringing the interlocutory application must demonstrate a "relatively strong" prima facie case.
His Honour found that the overall and predominant claim conveyed in the advertisement and in-store promotion was that "Fairy Platinum cleans better than Finish Quantum", and that this was made in respect of "stuck-on food", and not baked-on food. It was also found that a representation was being made that the overall better performance of Fairy Platinum had a reasonable foundation based in scientific material.
In considering the scientific material, his Honour found that, taken as whole, the (unchallenged) test results demonstrated that Fairy Platinum did achieve a better overall result. This meant the representations were not found to contravene the ACL. His Honour considered that a relatively strong prima facie case was not established by Reckitt Benckiser, and so on the balance of convenience dismissed the interlocutory application.
Conclusion
While Procter & Gamble engaged in comparative advertising with a fierce competitor, it successfully resisted the interlocutory application by being able to substantiate the representations made within its advertisement.
Authors: Hannah Rumble, Lawyer; and Lisa Ritson, Partner.
