Uncle Toby’s was recently hit with a $32,400 fine for misleading representations about their famous oats. The ACCC was concerned by the way in which the oats packaging implied that certain types of oats were a source of additional protein and a superfood. This however, wasn’t the case as the oats didn’t contain any additional protein. Below, we look at how Uncle Toby’s fell foul of the Australian Consumer Law (ACL) and what your business can learn from their mistakes.

Disclaimers Don’t Fix Everything

This case is a straightforward example of how disclaimers are not always the cure-all for incomplete claims. Here, Uncle Toby’s displayed the dominant phrase, “NATURAL SOURCE OF PROTEIN SUPERFOOD” along with the disclaimer, “when prepared with ½ cup of skim milk”. In this case, the milk provided the additional protein. However, when a consumer is scanning the shelves or watching a TV advertisement, the overall impression that they would have received is that the product contains additional protein.

The ACCC in this situation didn’t agree that the disclaimer was enough. When a consumer is viewing the product, the disclaimer is unlikely to have any effect on the consumers’ impression when presented alongside the larger, and different coloured labelling of, “NATURAL SOURCE OF PROTEIN SUPERFOOD”.

When you are advertising a product, it’s important to view the advertisement as a whole, including the size and placement of each word and image. We outline some questions to consider when you are creating an advertisement.

1. Can I back up all statements and claims in this advertisement?

For example, if I claim any particular health or nutritional benefits, is this substantiated by scientific data?

2. Do I have permission or a licence to use each image?

For example, have I received permission from any required image licensors to use the image for advertising? Do I have the requisite permission to use a celebrity’s image to endorse my product? 

3. Is this overall impression misleading to consumers?

Have I reviewed my advertisement with the consumer, who has no knowledge of my product, front of mind?

4. Do I need to include a disclaimer and does it affect the advertisement’s overall impression?

Does the disclaimer effectively explain the main body of text, or is the overall impression still misleading?

If I am creating a TV advertisement, does the overall impression including images and voiceover creating any misleading representation?

Review the advertisement in its full and completed version, not just the copy and image separately as you may form a different view.

Are there any additional laws or regulations that apply to my advertisement that I should be aware of?

For example, some products can only be marketed to certain age groups or during certain times.

In Short

If you have questions or concerns about an advertisement your business created, let us know. We are familiar with the unique needs of creative agencies and the legal issues marketers and advertisers face.

Questions about advertising? Get in touch with our consumer lawyers on 1300 544 755.

Edith Moss

Next Steps

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