Consumer Law – Dishwasher Tablets and Stuck-on Food
Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited [2018] FCA 378
Justice Lee of the Federal Court of Australia recently decided on a case under the Australian Consumer Law. The case involved rival dishwasher tablet manufacturers and allegations of misleading or deceptive conduct and misleading conduct as to suitability for purpose and quality of those tablets.
The Australian Consumer Law protects consumers from a range of business conduct and practices that may lead to consumers being mislead or exploited. Knowing the law is a fundamental principle of the rule of law and the Australian Consumer Law Simple English guides assist in educating consumers about the relevant legislation. This is an excellent example of how the rule of law principles work to improve access to the law for Australians.
The ACC defines misleading and deceptive conduct as:
…the behaviour of the business affects the audience’s impression of a good or service. When deciding if conduct is misleading or deceptive, or likely to mislead or deceive, the most important question to ask is whether the overall impression created by your conduct is false or inaccurate. ACCC
The Case
Reckitt Benckiser (Australia) Pty Limited (“RBA”) imports and sells Finish dishwasher tablets in Australia. Procter and Gamble Australia Pty Limited (“PGA”) markets and sells Fairy dishwashing tablets in Australia.
RBA applied to the Federal Court for an injunction (an order stopping a person from continuing an action) to stop PGA broadcasting a television commercial and using supermarket promotion booths which they alleged indicated that a version of PGA’s Fairy tablets (Fairy Platinum) were better than a version of the RBA’s Finish tablets (Finish Quantum).
In his judgment His Honour noted that:
the gentle rinse of dishwashing detergent is not reflective of the vigorous thrust of commercial rivalry between the protagonists [5]
He noted that the parties had previously been before the court in 2015 in a case involving another PGA advertisement for dishwasher tablets (see Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited [2015] FCA 753).
The Law
Section 18 of The Australian Consumer Law provides that a person must not engage in misleading or deceptive conduct in trade or commerce. Section 33 prohibits misleading the public in relation to the nature, characteristics, suitability for purpose or quality of goods.
The Commercial
Justice Lee watched the television commercial three times. He noted that he was required to view the commercial from the perspective of a reasonable member of the target audience for such commercials.
The commercial:
The commercial involved a woman taking a baking dish out of a dishwasher and scratching it. In the background was a blue packet with the words ‘leading tablet’ written on it. The packet was then shown more obviously and a voice over suggested, “It’s not your fault, try a new tablet”. A further voice over then said “With triple action, it beats Finish Quantum at cleaning stuck-on food on the first wash”.
Small print at the bottom of the commercial stated:
Third party laboratory tested with Finish Quantum in market as of Nov 2017 using baked on starch and baked on pasta [11]-[16].
After viewing the advertisement His Honour noted that it was:
neither subtle nor multi-layered and deconstructing it like it was an early work of Ingmar Bergman would be as unproductive as it would be misconceived [8]
The First Decision – What did the Commercial Claim?
The first matter to be considered by the court was what impression the advertisement made. Justice Lee found that PGA’s commercial represented that Fairy Platinum tablets are better at “cleaning stuck on food on the first wash” [61] than Finish Quantum tablets.
The Second Decision – Was the Claim Misleading?
The court then had to consider whether PGA’s commercial was misleading and deceptive in representing that the Fairy Platinum tablets were better than the Finish Quantum tablets.
Whether conduct is misleading and deceptive is a question of fact and should be decided from the evidence put before the court of all of the relevant surrounding facts and circumstances.
The lawyers for PGA provided evidence from an independent testing laboratory, which they said indicated that the Fairy Platinum tablets had an overall better cleaning performance than Finish Quantum tablets. No evidence contradicting this was provided by the lawyers for RBA.
The court accepted that:
the claim made that Fairy Platinum cleans better than Finish Quantum, on stuck-on food on the first wash, is supported by the research…[64]
The court ultimately found that there was not “a prima facie case established of contravening conduct..” [65], that is, based on a first impression, PGA had not taken part in misleading and deceptive conduct through their advertising. The injunction sought by RBA was not granted.
