Marketing and Advertising Law
Is a $6 million fine too low for
falsely labelling Nurofen packets?
To recap, what Reckitt Benckiser did between 2011 and
2015 was to sell the identical pain relief product - Nurofen
- in 4 differently labelled packets, at almost twice the
price of the standard Nurofen packet - see photo.
The Federal Court found that the labels were misleading.
The four packets had labels which stated that they were
targeted for different pain - one for Migraine Pain, one for
Tension Headaches, one for Back Pain and one for Period
Pain. In fact, each packet contained the same tablet, and
could be taken to relieve any of the pains.
The trial judge fined Reckitt Benckiser $1.7 million
which the appeal court increased to $6 million.
The question is - was the fine still too low considering
that sales were about $45 million, with at least $20 million
in profit? In other words, is a fine of $6 million high
enough to discourage it hapening again, or is it too low and
so will it be considered just the cost of doing business?
Belatedly, the Australian Competition and Consumer
Commission which had asked for the $6 million fine agrees.
It now proposes that fines based on profits derived from the
offending conduct - as high as 3 times the profits.
Too late for the Nurofen case - the horse has bolted!
For a detailed analysis click
Higher penalties are coming for
conscious breaches of the Australian Consumer Law
What happens to the seller if
the oregano you buy is 50% olive leaf?
Dried oregano gives a spicy Mediterranean flavour to
tomato, pizza, beans and lamb.
It was therefore a matter of great concern when the
Australian consumer watchdog, the ACCC, tested packages
labelled Oregano, 100% Oregano and pure Oregano and found
impurities, mainly olive leaf.
While oregano does grow around olive trees, to have 50%
of the package consisting of olive leaves is more than just
a coincidence! It was proof positive for the ACCC to pursue
suppliers and retailers who marketed the oregano for
misleading the public.
And so it was that the ACCC has punished the oregano
suppliers and retailers for not taking precautions to ensure
that the oregano they sold was unadulterated.
Some were reprimanded after taking action to remedy the
misrepresentation, others provided court enforceable
undertakings to test the products for 3 years, and Hoyt's
Foods was fined $10,800. They were all 'named and shamed' by
the ACCC in media releases.
For more detail, click on my article -
ACCC protects consumers against false marketing of oregano
There’s no such thing as a free bet in Australia
Free drinks, free coffee, free samples, free admission ...
all these offers use the word free to catch the attention of
the customer to sell a service or product.
So it was that
the online gambling company, Bet365 decided to use the
phrase $200 FREE BETS FOR NEW CUSTOMERS on the Opening Page
of its website. It was very successful - active users
increased by 83% over the previous year and wagering
revenues increased fourfold.
There was only one problem - when they posted the FREE
BETS phrase, they put an asterisk after the word CUSTOMERS*,
but did not put a click through button '*Terms & Conditions
Apply' underneath. Had they done so, then the new customer
have learned that they could only claim $200 in free bets if
they staked three times that amount and could withdraw their
winnings only if other conditions were satisfied.
Bet365 were prosecuted by the Australian Consumer
Regulator, the ACCC, because Bet365 had displayed the FREE
BETS phrase on its website without the Terms & Conditions
click through button for 302 days. The Federal Court found
that this was likely to mislead consumers and fined the two
Bet365 companies involved a total of $2,750,000 for
breaching the Australian Consumer Law.
There are two lessons here - for the consumer, there is
no such thing as a free bet (or anything else) because terms
and conditions apply; and for businesses, to make sure that
the terms and conditions which apply to free offers are
available to the consumer at the point where the free offer
For more information from a legal perspective, and for
Michael Field's comments from a marketing perspective, click
There's no such thing as a free bet in
Did you know that all Nurofen Specific Pain Range tablets
have the same active ingredient?
Would you be angry if you were told that despite the
label "Migraine Pain' and the distinctive violet packet, the
tablet you are buying is exactly the same as the one in in
the green packet labelled 'Back Pain' or the burgundy packet
"Tension Headache' or the magenta packet 'Period Pain'?
The Australian Consumer & Competition Commission became so
angry with the makers of Nurofen, Reckitt Benckiser, that
last year they prosecuted them for misleading labelling, in
breach of the Australian Consumer Law.
Last week, the Federal Court ordered Reckitt Benckiser to
pay a fine of $1.7 million for its misleading packaging and
website. In addition, they were ordered to change their
packaging to make it clear that the tablet was suitable for
the relief of all kinds of pain.
So, next time you are in a pharmacy or supermarket
looking around for a pain relief medication, look at the
Nurofen Specific Pain Range packets, see how they are
labelled as good for specific pain, and notice how they all
contain the same active ingredient - ibuprofen lysine 342
See Full Article
How the Nurofen Specific Pain
Range marketing strategy was undone as misleading by the
It was a brilliant marketing strategy … instead of
marketing the fast-acting Nurofen for pain relief as one
product effective for a range of pains (as the standard
Nurofen is marketed), to market it as four products targeted
to specific pains, namely migraine pain, tension headache,
period pain and back pain. It’s known as segmenting the
This marketing strategy was undone as misleading as a
result of the recent decision of the Federal Court of
Australia (Edelman J) in Australian Competition and
Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd
(No 4)  FCA 1408 (11 December 2015).
See Full Article
Not Everything Is Fresh Today!
Coles Supermarkets position fresh fruit, fresh cut
flowers and fresh vegetables at the entrance to give
shoppers the impression of entering into a natural oasis
where everything is fresh today.
As the shopper passes by the fresh produce displays,
according to the Coles website they see the “golden baked
crust” and smell “tempting aromas” of the fresh bread
displays below the “Baked Today, Sold Today” signage at the
Is it any wonder that the shopper believes that the bread
displayed was freshly baked on site?
See Full Article
fined 3 cents per loaf for misleading 'par-baked bread'
See Full Article