Misleading and Deceptive Case
Misleading and Deceptive Case
Facts
A soap powder manufacturer had marketed a product called ‘Sudso’ for many years. Its market share had fallen steadily due to increase competition. The manufacturer designed a bright new package for the product, added a scented fragrance and changed its name to ‘Sno’. The product was then re-released and advertised as ‘a new advance in laundry detergent that washes whiter than white’.
Issue
Has the soap manufacturer breached any laws?
‘A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive’: s 52. To mislead or deceive means to lead into error. Therefore, misleading or deceptive conduct, whether in advertising or otherwise, will normally involve some form of misrepresentation. Depending on the circumstances the misrepresentation may be conveyed by words, graphical representations, pictorial images, action sequences, or even by silence. The representation may take the form of a statement of fact, an opinion or a prediction and may appear on a billboard, in a newspaper, on television or radio, on the Internet, on a label or on the product packaging.
To determine whether any particular advertisement is misleading or deceptive it is first necessary to have a clear idea of the conduct said to constitute the breach. It is then first necessary to apply a three steps approach: 1. Identify the relevant target audience; 2. Determine the message or impression being conveyed to the target audience; 3. Determine whether that message or impression is true or false.
Step 1: What is the relevant target audience?
The target audience is those persons likely to be influenced by the conduct, not just the persons to whom the audience aimed the conduct. The target audience is often referred to as the relevant section of the public. Factors to be considered:- a) The nature of the product involved; b) The price of the product; c) The type of
Facts
A soap powder manufacturer had marketed a product called ‘Sudso’ for many years. Its market share had fallen steadily due to increase competition. The manufacturer designed a bright new package for the product, added a scented fragrance and changed its name to ‘Sno’. The product was then re-released and advertised as ‘a new advance in laundry detergent that washes whiter than white’.
Issue
Has the soap manufacturer breached any laws?
‘A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive’: s 52. To mislead or deceive means to lead into error. Therefore, misleading or deceptive conduct, whether in advertising or otherwise, will normally involve some form of misrepresentation. Depending on the circumstances the misrepresentation may be conveyed by words, graphical representations, pictorial images, action sequences, or even by silence. The representation may take the form of a statement of fact, an opinion or a prediction and may appear on a billboard, in a newspaper, on television or radio, on the Internet, on a label or on the product packaging.
To determine whether any particular advertisement is misleading or deceptive it is first necessary to have a clear idea of the conduct said to constitute the breach. It is then first necessary to apply a three steps approach: 1. Identify the relevant target audience; 2. Determine the message or impression being conveyed to the target audience; 3. Determine whether that message or impression is true or false.
Step 1: What is the relevant target audience?
The target audience is those persons likely to be influenced by the conduct, not just the persons to whom the audience aimed the conduct. The target audience is often referred to as the relevant section of the public. Factors to be considered:- a) The nature of the product involved; b) The price of the product; c) The type of