SUMMER GLOW advertising misleading, says Federal Court

In Johnson & Johnson Pacific Pty Limited v Unilever Australia Limited (No 2), the Federal Court of Australia has ruled that Unilever Australia Limited's advertising, which compared its new SUMMER GLOW product to Johnson & Johnson Pacific Pty Limited's HOLIDAY SKIN product, was not sufficiently accurate to avoid a finding that it was misleading.

Johnson & Johnson's HOLIDAY SKIN product is a moisturizer with the ability to build a light tan. When it was released in August 2005, it created a new segment in the skin moisturizing market and a new product category.

The HOLIDAY SKIN product became very successful and Unilever launched a competing product in March 2006. To coincide with that launch Unilever produced advertising that compared its SUMMER GLOW product with HOLIDAY SKIN. This advertising, which was based on market research, stated that seven out of 10 HOLIDAY SKIN users preferred DOVE SUMMER GLOW and contained a reference to the test conducted.

Johnson & Johnson alleged that Unilever's advertisements contained the following misleading representations:

• Seven out of 10 users of HOLIDAY SKIN preferred SUMMER GLOW to HOLIDAY SKIN for its tanning attributes;
  
  
• Seven out of 10 users of HOLIDAY SKIN preferred SUMMER GLOW to HOLIDAY SKIN for each of the product variants (Fair to Normal and Normal Darker);
  
  
• Seven out of 10 users of HOLIDAY SKIN preferred SUMMER GLOW to HOLIDAY SKIN; and
  
  
• SUMMER GLOW is the best tanning body lotion available.

The first two issues were essentially concerned with interpretation of the advertisements, while the third and fourth largely concerned the scope of the market research.

The Federal Court pointed out that the totality of the advertisements must be considered when determining what representations are being made and reiterated the view, established by precedent, that a statement "which is literally true may still be misleading and deceptive if it conveys to others 'something more than the literal meaning which the words spelled out'".

Unilever's advertising invited consumers to "think again", if they thought that the HOLIDAY SKIN product gave them the best summer tan. Without specifically stating the fact that seven out of 10 HOLIDAY SKIN users preferred SUMMER GLOW for its tanning attributes the overall impression of the advertising gave emphasis to tanning rather than moisturizing effects of the product, such that consumers would understand the assertion made as meaning that seven out of 10 users preferred SUMMER GLOW for its tanning attributes.

Since this was not what the research established, the television and print advertising was found to be misleading.

The court next examined the interpretation of the general representation that seven out of 10 HOLIDAY SKIN users preferred SUMMER GLOW. Since the survey sought feedback only on the "Normal to Fair" skin variant and consumers would reasonably expect the representation to relate to both variants, the representation was found to be misleading.

With respect to the third representation, it was found that the survey was properly conducted, however, it did not include women under the age of 25 and since the television advertisement depicted younger women, viewers would reasonably assume that women under the age of 25 had been included in the study. Consequently, the third representation was also misleading.

The fourth representation was not argued in detail and there were comments that it might be considered "mere puffery", or an indication that SUMMER GLOW was the better product, as it and HOLIDAY SKIN the only two products on the market in the relevant category. It was agreed that the decision on this issue would follow the finding on the third representation and, therefore, it was not assessed separately.

Unilever argued that it was not liable for any misrepresentations made as it was merely reporting the results of a study. However, the manner in which it presented its findings contained an implicit representation that Unilever had ascertained that the facts justified the opinion it was presenting. Therefore, it was liable for the statements made.

This case demonstrates the care that needs to be taken when advertising involves a comparison of competing products.

Sean McManis, Shelston IP, Sydney