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 …

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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 …

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Therapeutic Goods Administration Flexing Muscles 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 …

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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 …

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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 …

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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 …

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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 …

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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 …

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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 …

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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. …

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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 …

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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 …

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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 …

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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 …

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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 …

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