In part one of our series, we began looking at key principles for advertising promotions. We paid particular attention to the Australian Competition and Consumer Commission’s (ACCC) case against Medical Benefits Fund (MBF). Here, MBF created advertisements showing a couple giving birth. The ad’s fine print stated that the twelve month waiting period for pre-existing conditions and obstetrics still applied. Justice Hill of the Federal Court held that the first and dominant impression of the ad was that MBF would waive the waiting period for obstetrics. Below, we turn our attention to how you can ensure your advertisements comply with Australia’s Consumer Law, and that you don’t make MBF’s mistakes.

Consider the Target Audience

There is a difference between the target audience and the actual audience. It is the audience viewing your advertisement that receives the message, and this may be larger and more diverse than the expected target audience. Your viewers may differ in age, experience and sophistication which increases the likelihood of your advertisement misleading its audience.  So, it’s important that you take care when considering who will view your ad, and appreciate that your actual audience is likely to contain vulnerable consumers.

Consider the Nature of the Transaction

If the transaction your advertisement is promoting is complicated or relates to goods or services that are complex, then you will need to consider the type of promotion carefully. For example, it is difficult to deliver comprehensive details of financial or insurance arrangements in a 30 second TV spot, or on a billboard that people read as they drive past. The better way to deliver that information is most likely by print advertising, or brochures.

The ACCC’s proceedings have focused on the health insurance industry for attempting to advertise relatively complicated promotional offers in television advertisements through disclaimers. In some cases, the disclaimers appeared as superscripts on the TV screen. We will discuss this further when discussing fine print and disclaimers in advertising.

Consider Where the Advertisement Will Appear

Where the advertisement appears is related to the complexity of the message you are trying to convey. It may be that your message is especially complex, and you will need to think about the medium you choose to deliver the information, and where it will appear.

Key Takeaways

It is important to remember that if your business makes a representation through an advertisement about any future matter, and it doesn’t have reasonable grounds for making that representation, it will be taken to be misleading.

You must then take care to ensure that before you predict future events in your ads that you have reasonable grounds for doing so.

So, what are the advertising techniques that invite the regulator’s scrutiny? We will run through these in our next article.

Questions? Get in touch with LegalVision’s specialist advertising and marketing lawyers on 1300 544 755.

Catherine Logan
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