On 30 June 2025, the ACCC launched Federal Court proceedings against Edgewell Personal Care Australia Pty Ltd and its US parent company alleging that more than 90 of its Banana Boat and Hawaiian Tropic sunscreens were falsely marketed as “reef friendly”.
Why? Despite claims like “REEF FRIENDLY” and “No Oxybenzone or Octinoxate” (which are chemicals known to cause harm to reefs) – and packaging featuring coral imagery – the ACCC alleges the products contained other ingredients known to be harmful to marine life.
According to the ACCC, the claims were made without a reasonable scientific basis and the company allegedly knew of studies indicating the harmful effects of those ingredients – but failed to conduct proper testing or due diligence.
The ACCC is seeking a suite of remedies, including penalties, declarations, injunctions, a corrective notice, a compliance program and costs.
Five tips for substantiating claims
Before you slap a bold claim on your product, make sure it can stand the heat. The ACCC’s case against Edgewell serves as a strong reminder for businesses that you don’t just need “any” evidence to substantiate your claims – you need the right evidence.
Keep these tips in mind:
- Evidence First, Marketing Second
Support your claim with solid and appropriate evidence, such as relevant and reliable scientific studies or independent and reputable third-party certification or testing. - Local Laws Matter
Don’t blindly follow your overseas parent company’s advertising and marketing advice or instructions. Get legal advice tailored to Australian law before making claims in this market. - Be Precise
If your evidence only supports a claim in respect of part of your product (and not the whole), say this clearly and prominently in all marketing materials. - Review your Claims on an Ongoing Basis
The recognised scientific consensus supporting your claim might change, supply chain issues affecting your product or business may arise, or you may decide to reformulate or modify your product. Where this happens, assess whether you need to update or remove claims on your product packaging, websites, social media and other marketing materials. - Be Ready to Substantiate your Claims
Keep accurate, comprehensive and up-to-date internal records that support your claim and prove it is true for the whole time you are making the claim. The ACCC can issue a compulsory substantiation notice at any time which gives only 21 days to respond, so always be prepared to provide your proof on short notice.
The Bigger Picture: Scrutiny in Australia and Beyond
The ACCC’s proceedings against Edgewell are part of a broader crackdown by the ACCC, consumer groups and overseas consumer regulators on unsubstantiated claims made in relation to widely used consumer products.
Sunscreens Under Scrutiny
Only weeks before the ACCC filed its suit against Edgewell, sunscreen manufacturers were feeling the heat.
Consumer advocacy group CHOICE published a report which found that 16 out of 20 sunscreens tested did not meet their advertised SPF50 or SPF50+ rating. CHOICE informed the ACCC and the Therapeutic Goods Administration of its sunscreen testing results and called on the ACCC to investigate if consumers are being misled.
The ACCC has not yet publicly commented on the matter.
The ACCC’s Ongoing Greenwashing Crackdown
As covered in our recent article on the ACCC’s proceedings against Clorox – which resulted in Clorox being fined $8.25 million – misleading greenwashing claims are a top priority for the ACCC. The ACCC’s lawsuit against Edgewell is another prime example of this. As the ACCC Deputy Chair Catriona Lowe stated, Edgewell’s alleged conduct “was widespread and risked potentially misleading a large number of consumers”.
For practical guidance on making green claims, see our article The ACCC’s Much Awaited Guidance on Environmental and Sustainability Claims.
The Fashion Industry is also in the Firing Line
In a similar move across the Tasman, the New Zealand Commerce Commission issued a warning to Kmart NZ Holdings Limited for making unsubstantiated claims that its own brand fashion products were made from “100% sustainably sourced cotton” – when in fact they were only partially made from sustainable cotton.
A Global Enforcement Front
The ACCC, New Zealand’s Commerce Commission and 18 other overseas consumer protection authorities recently published an open letter to the fashion retail sector encouraging review of their commercial practices and compliance of their environmental claims with consumer law.
Key Takeaway
If you make bold product claims – environmental or otherwise – make sure you can substantiate them with recent, credible evidence. In the case of scientific claims, the evidence must represent the balance of current scientific consensus.
And remember – as Australia’s consumer watchdog has itself previously stated – where the ACCC has concerns, it will be asking you to substantiate your claims – fast.
Thinking about making a new marketing claim or doing some housekeeping on your existing claims? Get expert advice from the Addisons Competition/Antitrust & Consumer team.