In April 2023, Procter & Gamble (P&G) was forced to take its then new Fairy “30 Minute Miracle” (Miracle) dishwashing tablets off the supermarket shelves after Reckitt Benckiser (Reckitt) taught it an expensive lesson on comparative advertising.
Reckitt took issue with P&G’s Miracle detergent packaging and sought an urgent interim injunction claiming the packaging misled consumers in breach of the Australian Consumer Law due to:
- the product name “30 Minute Miracle”;
- the statement “Better Cleaning^ even in 30 minutes” on the front of pack;
- the use of a fine print statement attempting to qualify the front of pack claim being “^Tested vs. All in One”, another P&G dishwashing product; and
- the depiction of Miracle and its features in a scientific graph on the back of the pack.
Reckitt sells the market leading “Finish” branded dishwashing products.
The Federal Court Decision
The Federal Court granted the interim injunction on the basis that Reckitt had established a prima facie case of P&G engaging in misleading and deceptive conduct.
Performance tests conducted by the parties and independent laboratories as well were put before the Court, comparing the Miracle product to Finish and other products of P&G branded under the Fairy brand being P&G’s Fairy “ All in One” product and its Fairy “Platinum Plus” product. While the Court did not think it necessary to determine the reliability of these tests, the Court held that P&G’s own testing did not demonstrate any difference between its new Miracle product and P&G’s Fairy “Platinum Plus” product, when used in a 30 minute washing cycle.
The Court was satisfied based on the evidence before it, and assessed from the point of view of the ordinary and reasonable consumer, that Reckitt had a strong prima facie case that the overall impression created by the Miracle packaging was that Miracle was better at cleaning in a 30 minute cycle than all other Fairy branded products sold by P&G, when this was not the case.
Lessons for Marketers and Lawyers Advising Marketers
1. Know when a claim is comparative
Words such as “better”, “cleaner” and “faster” are all examples of comparative language. If you are using those words in your advertising, you need to be able to substantiate them against whatever other products a reasonable consumer would believe they are being compared against.
2. Realise your competitors are watching – very closely!
It’s not just the ACCC to look out for with comparative campaigns – your competitors will be watching you even more closely. Any comparative campaign will run a significant risk of being challenged by your competitors, so understand that risk when you make these claims. P&G paid a very high price here as Reckitt reminded everyone of the fast-acting and commercially damaging nature of interim injunctions – the new Miracle product was ordered off the shelves barely a month after its release.
3. Fine print disclaimers do not always work to qualify headline claims
Fine print disclaimers on fast moving consumer product packs can have serious limitations. The threshold for misleading advertising is low if you are relying on qualifying language that appears small font and that may be obscured by other aspects of packaging. Reason being: most reasonable shoppers will form a general impression of a products’ packaging rather than carefully analysing its fine print.
P&G’s defence relied upon the use of the chevron (ie “^”) in the claim “Better Cleaning^ even in 30 minutes”, which they argued alerted consumers to seek more information on the pack and therefore, find the linked claim, “^Tested vs All in One”, another of P&G’s products. P&G’s testing showed that its Miracle product did perform better than its All in One product. P&G also argued that reasonable customers would be used to a “certain amount of puffery” within the detergent industry.
However, these arguments didn’t amount to sustainable defences.
Firstly, the Federal Court held that a consumer reading Miracle’s packaging would not be aware of the fine print qualification, “^Tested vs All in One”, as this information was “barely visible”, printed in small font and was obscured by the cardboard trays when the Miracle product was displayed on supermarket shelves. Further, it would only be seen after “prolonged inspection of the packaging – circumstances which are unlikely … in the normal shopping experience of a great many customers.”
Secondly, puffery must be outlandish (such as “Redbull gives you wings”) or meaningless for a consumer to interpret it as such. In this case, “Better cleaning^ even in 30 minutes” was held to be a claim.
The interim injunction imposed on P&G provides a stark reminder of the scrutiny that competitors place on each other’s comparative advertising and the speed with which competitors may act. In this case, the Miracle product was launched around 20 March 2023, the application for an interim injunction was filed on 3 April 2023 and the hearing was held on 23 April 2023. Further, to win these cases, companies must ensure their comparative claims are specific, make clear what they are comparing themselves against and are fully substantiated to avoid unwanted implicit comparisons with other products.
If your business needs help getting their marketing claims in order, contact the Addisons Competition, Consumer & Antitrust team.