We’ve all seen those products that claim to help us ‘lose belly fat in just five days!’ or ‘slim yourself by drinking our herbal tea’. But can these products really advertise these claims?

This type of advertising relates to performance characteristics, where the ad refers to a use or benefit of the product, or something the consumer can do with the product. Below, we shine the light on two household brands that caught the attention of Australia’s consumer watchdog, the Australian Competition and Consumer Commission (ACCC).

Danoz Director and the AbTronic

The court looked at advertising a product using performance characteristics in Australian Competition and Consumer Commission v Danoz Direct Pty Ltd (2003) 60 IPR 296. Danoz Direct was advertising a product called the AbTronic. Here, the critical question was whether the AbTronic was capable of ‘working’ and ‘toning’ the muscles as Danoz Direct advertised on TV.  Or, did this advertising mislead consumers, and contravene section 53(c) of the Trade Practices Act (now section 29(1)(g) of the Australian Consumer Law).

The AbTronic was meant to work through electronic muscle stimulation (EMS) to provide improved muscle tone, size, and strength. Both parties submitted expert evidence about the ability of EMS to improve muscle tone, size, and strength. However, the court found significant variance among the opinions.

The court decided that some of the statements used in the ads referring to the AbTronic’s performance characteristics in helping with weight loss, and toning different muscle groups misled consumers. 

It was clear from the evidence that the advertisers were aware that they had no material basis to support the claims that the AbTronic would tone and exercise muscle. The court required Danoz Direct to issue corrective advertisements for a two week period, airing at the same time as the original ads. The court also ordered Danoz Direct to implement a Trade Practices compliance program.

Reebok’s EasyTone Shoes

We now turn to Reebok’s EasyTone shoes. In 2014, the ACCC alleged that Reebok’s advertising material about EasyTone included a performance characteristic that the shoes would benefit an individual’s muscle tone in the calves, thighs, and buttocks.

Although Reebok used statements referring to scientific evidence in their advertisements, it is unclear where they received this information. The court ordered Reebok to pay $35 to purchasers of the EasyTone shoes from 2011-2013, amounting to a penalty of over $350,000. Reebok had also faced a similar action in the US where they settled for $25 million compensate consumers.

What Does This Mean for Consumers?

This type of advertising is used to convince consumers of the quality of the product by using scientific evidence or statements to encourage a purchase. We’ve all been tempted by ads offering ‘6 pack abs in 6 days!’ 

But, it is important to be wary of the types of businesses promoting these products. You should ask where is the business located? Not every country has Australia’s robust consumer protection framework and the law around misleading statements might not apply. What is the scientific evidence the business is using to justify its advertising claims? 

As with any product purchase, our best recommendation is to do your research beforehand. If it sounds too good to be true, it probably is!

Questions? Get in touch on 1300 544 755.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Bianca Reynolds

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