Advertising

The Elephant in the Womb: FSANZ Calls for Submissions on Proposed Mandatory Pregnancy Warning Labels on Alcoholic Beverages

Food Standards Australia New Zealand (FSANZ) has recently called for submissions on proposed mandatory warning labels to inform consumers of the dangers of drinking alcohol while pregnant. Despite the Australian and New Zealand governments regularly issuing health warnings against consuming alcohol while pregnant, recent studies conducted by FSANZ have found that consumers do not recognise that drinking “small amounts” of alcohol is also dangerous to foetuses, and considerably increases the risk of Foetal Alcohol Spectrum Disorder. The Proposal In response to these recent studies, FSANZ is proposing to introduce a mandatory pregnancy warning labelling requirement for all packaged alcoholic beverages …

The Elephant in the Womb: FSANZ Calls for Submissions on Proposed Mandatory Pregnancy Warning Labels on Alcoholic Beverages Read More »

Not Bhed, Good Trade Mark: Infringement, Ten Seconds In?

It was recently reported that the man behind the “not bhed, good syze” fishing video is taking steps to trade mark the catchphrase that made him a viral sensation in Australia.  With the video’s star now capitalising on his new found fame, including starring in an advertisement for a space rental start-up, this has left many wondering whether they will have to refrain from uttering their favourite phrase, or otherwise run the risk of infringing his trade mark… In short, not necessarily.  Setting aside whether or not the phrase is sufficiently distinctive to qualify for registered trade mark protection, the …

Not Bhed, Good Trade Mark: Infringement, Ten Seconds In? Read More »

Therapeutic Goods Administration Cracks Down on Prohibited Advertising

A series of recent enforcement actions and announcements by the Therapeutic Goods Administration (TGA) indicate that the regulator is actively monitoring and prosecuting businesses for breaches of the Therapeutic Goods Advertising Code (No. 2) 2018 (TG Advertising Code) and Therapeutic Goods Act 1989 (TG Act). These enforcement actions include: successfully prosecuting a business in the Federal Court of Australia, resulting in a financial penalty of AUD 10 million, for advertising peptide products: in breach of restrictions on advertising substances listed in Schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons (Poisons Standard), including peptide products; making …

Therapeutic Goods Administration Cracks Down on Prohibited Advertising Read More »

These Schemes Ain’t Loyal says ACCC Draft Report on Customer Loyalty Schemes

The Australian Competition & Consumer Commission (ACCC) recently released its draft report on customer loyalty schemes, which has raised concerns about the actual benefit to consumers of such schemes and the use (or rather misuse) of consumers’ data. Preliminary Findings and Concerns At a high level, the ACCC’s main concerns (as set out in the report) focus on the following key areas: whether consumers actually receive the benefits advertised by customer loyalty schemes; unilateral changes to loyalty scheme terms and conditions – such as reduction of ‘earn rates’ and ‘redemption values’; poor communication of how the respective schemes work – …

These Schemes Ain’t Loyal says ACCC Draft Report on Customer Loyalty Schemes Read More »

2019 A.D. – The post-influencer age?

Social media influencers have become a key weapon in the armoury of advertisers and can be successfully used to drive consumer engagement with a product offering.  However, are we entering a ‘post-influencer age’? Only recently, the Australian Federal Government announced that they would no longer use influencer marketing for any government department campaigns after it came to light that influencers working with the government had previously endorsed alcohol and “extreme dieting” products. Similarly, with a number of high profile influencers recently mis-stepping (see our previous post on the Fyre Festival here) and the speed of information spreading on the internet, businesses …

2019 A.D. – The post-influencer age? Read More »

Online marketing and trade marks: To infringe, or not to infringe?

…Whether ’tis nobler in the mind to suffer The slings and arrows of poor searchability, Or to take arms against a sea of competitors (with SEO and Adwords) As online visibility becomes essential for connecting with consumers, businesses are increasingly investing in measures to improve traffic on their websites. Some of these include acquiring strategic domain names, using search engine optimisation services, and paid search engine advertising. However, in employing these measures, it is important for businesses to ensure that they do not infringe the trade marks of their competitors. Terminology To unpack the jargon: a domain name is an …

Online marketing and trade marks: To infringe, or not to infringe? Read More »

Don’t believe the hype: Online ratings and reviews under the microscope

Online ratings and reviews are perceived as a low cost, transparent and real-time way for consumers to make informed purchasing decisions and can therefore be highly influential. Over the past year, there have been a number of enforcement actions successfully brought by the ACCC for businesses manipulating reviews or ratings that appear on their website, or third party review platforms. There has been much media focus on online ratings and reviews both in Australia and internationally, including the well-publicised example of a ‘fake restaurant’ being the number 1 ranked restaurant in London on a major review platform. As an area …

Don’t believe the hype: Online ratings and reviews under the microscope Read More »

When a Fyre starts to burn: A cautionary tale in marketing

A private island in the Bahamas, an ‘immersive’ music festival experience, return flights on a private jet, luxury eco-friendly villas, world-class gourmet food and partying with supermodels… These were just a few of the representations that organisers made to entice approximately 5,000 ticket holders to attend the Fyre Festival in 2017. This high profile (and extreme!) example of a product or service not matching the marketing hype is a perfect case study for a hypothetical analysis of how the Australian Consumer Law (ACL) would apply if such an event was to occur in Australia. Australian Consumer Law False, Misleading and …

When a Fyre starts to burn: A cautionary tale in marketing Read More »

Returning faulty gifts: New year, new product returns?

There’s always that one present under the tree. It doesn’t quite fit right or maybe doesn’t work once plugged in…Remember to not only remain calm, but both consumers and retailers should also ensure that they are fully aware of their rights and obligations under the Australian Consumer Law (ACL). According to the ACCC website, the Australian competition watchdog received nearly 34,000 contacts about consumer guarantee related issues in 2018 alone – an increase of more than 17 per cent compared to 2017. This article will outline both the rights of consumers and obligations of businesses when dealing with the return …

Returning faulty gifts: New year, new product returns? Read More »

Digital marketing update: Shoppable content, unreal and nano influencers, virtual home assistants and ads in messaging apps

In a world of exponential technological growth, consumers make purchasing decisions across an array of media platforms. When developing new methods of delivering a personalised and convenient consumer experience across these platforms, businesses should therefore factor in the risks involved including the application of the Australian Consumer Law (ACL). In this update, we take a look at some of the predicted tech trends for 2019 and flag the associated legal issues you should bear in mind. Shoppable Content – In the footsteps of the Chinese app WeChat, Instagram is expected to roll out an in-app purchase feature this year, allowing users to …

Digital marketing update: Shoppable content, unreal and nano influencers, virtual home assistants and ads in messaging apps Read More »

Marketing warfare series – Part III: Guerrilla marketing

What is guerrilla marketing? Guerrilla marketing involves unconventional or interactive campaigns that take consumers by surprise and typically attract social media attention for being so unexpected. These tactics allow businesses to repurpose their consumers’ environment to include their brand and are particularly attractive to small businesses looking for greater reach and impact at a lower cost than traditional marketing. This type of marketing can take many forms, including: publicity stunts (e.g. flash mobs or world record attempts); brand installations (e.g. giant statues of a product in prominent public places); transformation of everyday items into advertisements (e.g. park benches or dressing up …

Marketing warfare series – Part III: Guerrilla marketing Read More »

A Christmas credit carol: Advertising consumer credit

As we move into the festive season, personal finance such as credit cards and loans become increasingly attractive to consumers so they can spread the Christmas cheer. Offering finance options are a great way to get customers through the door, however, businesses should be aware of requirements that apply to advertising consumer credit under the National Credit Code (NCC), which is contained in Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth). Applicability The NCC is regulated by Australian Securities and Investments Commission (ASIC) and applies to ‘credit contracts’.  These are agreements that have the following features: the …

A Christmas credit carol: Advertising consumer credit Read More »

Marketing warfare series – Part II: Comparative advertising

A strategy often used by competing brands is comparative advertising. With numerous cases brought in the Federal Court of Australia each year and the potential for considerable pecuniary penalties, businesses should approach this strategy with caution. What is comparative marketing? Comparative advertising is, as its name suggests, an advertisement that compares a product or service with the equivalent offering of a competitor. This is usually done to highlight limitations of the competing offering and demonstrate the promoted offering’s superiority. Businesses may draw comparison with the competing offering: directly – by referring to, or displaying the offering e.g. use of images …

Marketing warfare series – Part II: Comparative advertising Read More »

Food Standards Code: Mandatory Warning Labelling Update

On 26 May 2018, products containing the legume Lupin became subject to mandatory allergen warning requirements under the Australia New Zealand Food Standards Code (the Code).  It’s inclusion is a timely reminder for businesses to ensure that their product labelling includes warnings required by the Code. Mandatory Warnings By operation of Standard 1.2.3 of the Code (the Standard), food manufacturers must label their products with a warning when a designated allergen may be present as an ingredient or compound ingredient, food additive or processing aid.  These allergens include Milk, Eggs, Peanuts, Tree Nuts, Cereals containing Gluten, Seafood, Shellfish, Soy, Sesame Seeds …

Food Standards Code: Mandatory Warning Labelling Update Read More »

Social Media Marketing and Advertising Update: The Rising Star of the ‘Micro Influencer’

Businesses are increasingly questioning the value of “celebrity” social media influencers and appear to be favouring partnerships with “micro influencers” as a more cost effective marketing strategy. A “micro influencer” is a social media user with between 1,000 to 90,000 followers who, like a traditional influencer, makes posts promoting products.  Their key advantages include use of products out of real loyalty to a brand (in some cases), smaller and more intimate followings and, as a result, the perception of genuine endorsements by their followers.  “Micro influencers” also require much lower remuneration, if any, and exist in greater abundance than “celebrity influencers”, and …

Social Media Marketing and Advertising Update: The Rising Star of the ‘Micro Influencer’ Read More »