The Federal Court recently examined whether representations alleged by Unilever to have been made by Beiersdorf about Beiersdorf’s Nivea ‘Stress Protect Clinical Strength’ deodorant were false, misleading or deceptive under the Australian Consumer Law1.
Whilst Unilever was ultimately unsuccessful, the case provides useful guidance on the use of the term ‘clinical’ as a product descriptor and what sort of scientific substantiation is required to support a ‘clinical’ claim.
Unilever specifically challenged Beiersdorf’s use of the word ‘clinical’ in its Nivea product name and alleged Beiersdorf had made false, misleading or deceptive representations via marketing its products like other ‘clinical’ antiperspirants on the market by packing it in a box with a leaflet and selling it at a higher price point to standard, non-clinical products. Unilever alleged that via these means Beiersdorf had made the following representations: the Nivea range had similar antiperspirant efficacy to other clinical antiperspirants on the market (similarity representations); the Nivea range had greater antiperspirant efficacy than all other non-clinical antiperspirant deodorants (superiority representations); and the Nivea range provided particularly strong protection against stress sweat (stress sweat representations).
Beiersdorf justified its claims by submitting scientific evidence which it argued showed that the Nivea range was on par in terms of efficacy with other clinical products on the market in Australia.
The Federal Court found that Beiersdorf didn’t expressly make the similarity or superiority representations at all. The Court also found that whilst Beiersdorf had ‘adopted the cues’ of a ‘clinical’ product, this did not amount to an implied similarity or superiority representation. It found that all the marketing get-up conveyed to ordinary consumers was that the Nivea range was a highly effective product for heavy sweaters and not that it was better at reducing perspiration than other products in the broader antiperspirant deodorant category or the clinical subcategory.
Whilst Beiersdorf admitted it made the stress sweat representation, the Court found that Unilever had not proved the falsity of the claim as it had ‘misconceived’ the representation and the scientific testing and therefore had limited the conclusions that could have been drawn from the evidence.
The Court went on to consider whether, if the purported similarity and superiority representations had been made, they would have been false. The Court’s discussion is instructive in relation to necessary scientific substantiation. The Court took into account various pieces of evidence including:
- laboratory tests – ‘head-to-head’ comparative tests which Unilever relied on and which both parties’ experts conceded were the most reliable and useful means of assessing whether one product is more efficacious than another; and ‘absolute tests’ on overall efficacy of individual products which both parties relied on and in relation to which the Court conceded it would be problematic to rely on due to potentially differing test protocols, subjects and climatic conditions;
- blind home user tests conducted by Beiersdorf to support the inference that consumers could not readily perceive differences in efficacy between Unilever’s Rexona products and Beiersdorf’s Nivea products and ‘to bolster Beiersdorf’s pre-existing and reasonable understanding of the efficacy’ of the Nivea range2,
- complaints about the Nivea range as well as evidence of the poor market performance of the range and marketing of the range in the UK as non-clinical products.
The Court conceded that whilst the laboratory test results indicated that the Rexona product range was more effective in reducing sweat than the Nivea products, the way the consumer would have understood the similarity and superiority representations was extremely important and that they would have seen these representations in terms of how the products worked for them. ‘They would be unlikely to consider that two products were dissimilar, in terms of antiperspirant efficacy, simply on the basis of statistically significant differences between the amounts of sweat reduced in the laboratory tests. In that context, consumer perceptions may be as important as, if not more important than, laboratory tests. If consumers were unable to perceive any difference between the products, in terms of their antiperspirant efficacy, they would be likely to consider them to be similar, or at least not dissimilar’3.
The final technical point to make about the case relates to the onus of proof. Under the ACL, where a person makes a representation as to ‘future matters’ or a prediction about something happening (eg. you’ll sweat less), the representation is deemed to be misleading unless the maker had reasonable grounds to make the representation. The onus was therefore on Beiersdorf to establish it had a reasonable basis to make the representations found to have been made.
The Court found there was evidence that showed Beiersdorf had reasonable grounds to make the future stress sweat representation. This was on the basis that its laboratory tests confirmed that the Nivea range did in fact have a high degree of antiperspirant efficacy against stress sweat regardless of how the range performed as against other clinical products. However, the Court found that if Beiersdorf had made the similarity and superiority representations, it would not have satisfied its evidentiary burden because its scientific testing did not include head-to-head tests of the Nivea range against the Rexona range. The Court criticised in particular the fact that Beiersdorf management only knew ‘top line marketing information’ about the scientific testing and didn’t dig deeper to make sure the claims made matched the support.
Unilever has appealed the decision!
Learnings for marketers
- Use of a descriptor term like ‘clinical’ will require a higher standard of scientific support than more general, non-specific claims.
- The descriptor ‘clinical’ has to be viewed in the particular context in which it is used. In the context of ‘clinical’ antiperspirant deodorants, the term was found to mean ‘high strength’ and efficacy and that it was not representative of a baseline benchmark which all products marketed in that ‘clinical’ subcategory had to meet. Caution is required when using this term though as it may mean something very different in another context.
- When a product is promoted as being part of an established market category, ordinary consumers may take this to mean that the product has certain features or attributes that are standard in this market. So when designing this style of marketing campaign, you should have a good knowledge of the products in the competitive set to work out how your product compares to these other products and establish whether the category has a quantitative benchmark for a descriptor term like ‘clinical’.
- Consumer perceptions of efficacy may be more important than scientific data that technically substantiates claims.
- Product performance claims in advertising and marketing often include representations as to future matters. This makes it all important for the business making the claim to be able to establish that it has reasonable grounds for making the claim by way of contemporaneous evidence that substantiates any representations.
- Scientific tests that are intended to support claims must support the actual claims being made and be checked to make sure they are supportive.
1. Unilever Australia Ltd v Beiersdorf Australia Ltd  FCA 2076, per Wigney J
2. Ibid, para 430.
3. Ibid, para 321.
Liability limited by a scheme approved under Professional Standards Legislation.
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