The fine line between marketing & misleading conduct

The fine line between marketing & misleading conduct

I have seen this many times – a client is passionate about their product and think it’s the best thing since sliced bread (and sometimes it actually is!). In the excitement and enthusiasm for the product, there is a temptation to throw around a few flashy words to make it sound as appealing as possible.

However, there is a fine line between meaningless marketing terms and actual claims or descriptions. I have seen many companies make the mistake of exaggerating the benefits of their products. Did you know that such exaggerations, whilst they may mean well, could be classified as misleading and deceptive, or misleading representations?

Misleading conduct is penalised heavily as it is a priority area for the ACCC. Recently, Uncle Tobys’ Quick Sachet Oats were found to be misleading representations as the box was described the oats as a “natural source” of “protein” and a “superfood”. In particular, the word “protein” was highlighted in very large font on the box.

It was found that the terms were misleading as the oats are not high in protein – this is only true when they are combined with milk. Even though there was a fine print disclaimer stating this, the ACCC determined that these disclaimers were not sufficient to correct the overall misleading impression. As a result, Cereal Partners Australia (operated by Nestle) was penalised $32,400.

Take-away?

  • Do make sure the main impression and ‘big text’ is consistent with your actual product.
  • Don’t rely on disclaimers to ‘tell the full story’.
  • Don’t advertise benefits of your product that are reliant on combined use with another product. If you do advertise the benefits as a total, it must be clearly stated (not in fine print) so as to not create a false or misleading overall impression.

If you are unsure about your marketing claims or seek legal advice regarding misleading conduct, please contact me on 1300 033 934 or at  for a no obligation chat.