Any student, chocoholic or sweet-toothed individual understands the thought process that goes into selecting the perfect chocolate bar. It does not bear imagining that the chosen chocolate will not match its mouth-watering descriptions or eye-catching advertisements.
An English law student has declared her disappointment in a packet of Kit-Kat bars mysteriously lacking their famed wafer center by threatening Nestlé with legal action. As a consumer of their product she accused the multi-billion dollar company of misleading her and of ignoring their duty of care to customers, and is reported to have claimed she has suffered emotional trauma as a result.
The reports are a useful reminder to businesses of ensuring that products or services do what they are advertised to do. Businesses must be careful not to mislead or deceive their consumers with regard to the quality, value, composition or style of its products or services. Such conduct is expressly prohibited under Australian Consumer Law (the ACL) to ensure consumer protection.
The ACL dictates that a person must not in trade or commerce engage in conduct that is misleading or deceptive or that is likely to mislead or deceive (section 18).
Misleading or deceptive conduct includes advertisements, promotions or any other representation made, that creates an overall false or misleading impression of the goods or services in the mind of the consumer.
Culpability is not removed for lack of intention. Misleading or deceptive conduct is a strict liability offence meaning that it does not matter whether someone intended to mislead or deceive, only that there was a real possibility the consumer could have been, or was misled.
Reliance on the representation need not be reasonable – conduct is seen as likely to mislead or deceive where there is a ‘real and not remote’ chance that it will form a false impression in the mind of the consumer.
When products are advertised or packaged, the products must match descriptions, packaging, labels, promotions or advertising, be fit for purpose and match any demonstration model or sample. The advertising or packaging may otherwise be determined to be misleading. Labelling of goods that is incorrect, inadequate or omitted may also be factors in considering whether the labelling is misleading.
We’ve seen it before – Arnott’s Biscuits
Similar cases of misleading packaging or advertising have been heard in Australian courts. In the 2008 case of ACCC v Arnott’s Biscuits Ltd  FCA 590, it was held that Arnott’s packaging of its various ‘Snack Right’ products was likely to mislead or deceive. It was found that the packaging, which displayed the names and images of certain fruits, created a false impression for consumers that significant amounts of the depicted fruits were contained within the snacks. In actual fact, the proportions of these advertised fruits within the snacks were insubstantial. The approximate proportion of blackberry concentrate in the filling of the ‘Apple and Blackberry Fruit Pillow Biscuit’, for instance, was only 1.7%.
To remedy its conduct, Arnotts was required to amend its packaging, undertake to refrain from similar conduct in the future and publish a corrective notice on its website.
This is a classic example of the type of misleading and deceptive conduct in advertising and packaging that the ACL seeks to prohibit.