Case: Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106
Outcome: considered
It is appropriate to consider each advertisement, as viewed by a consumer, in its entirety, taking account of content and presentation and also the circumstances in which it was published ( Astrazeneca Pty Ltd v Glaxosmithkline Australia Pty Ltd [2006] ATPR 42-106 at [24]). The message conveyed by the advertisements is for the Court to determine ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 ). 25 The significance of an elucidator in similar terms was considered by the Full Court in Astrazeneca . In that case, the GOAL study referred to in the advertisements was said to be based on observations of clinical tests undertaken with ' 3416 patients with uncontrolled asthma ' and no more (at [48]). The elucidator represented that, in that study, 41% of patents achieved "total control" of asthma symptoms and 71% achieved "well controlled" asthma for periods of 7 out of 8 weeks over the 12 month study by using the promoted product, "Seretide Total Control" (at [43]). The elucidator, in those specific advertisements, did not allow inferences to be drawn by the reader that all, virtually all, or even a majority of asthma patients, would achieve total control of asthma symptoms by using Seretide (at [43]). 26 In considering the advertisements then before it, the Full Court recognised that the significance of footnotes to which a consumer's attention is drawn depends on the material in question and the surrounding circumstances in each individual case (at [22]). This is not limited to questions of format. 27 In the present case, I am of the view that the invitation to generalise is stronger and more comprehensive than in the advertisements considered in Astrazeneca . It is clear from the Summer Glow advertisements as a whole that the message conveyed was that, as a generalisation and supported by the "use test", 7 out of 10 "Holiday Skin users" preferred Summer Glow. The message conveyed is that the study supported the generalisation and that, as a properly conducted and representative test, the preference of those women should be extrapolated to the population of Holiday Skin users. It cannot be said that if, for example, the 105 women had been carefully chosen from a population of Dove aficionados who had once used Holiday Skin, the representation was other than misleading. It follows that if the results or methodology of the study do not support the generalisation sought to be drawn, the fact that the surveyed population expressed the stated preference does not prevent the advertisements from being misleading. 28 Johnson contends that the advertisements emphasise the tanning aspect of the products and that the user preference claim relates directly to the tanning attributes of the products: that is, that 7 out of 10 Holiday Skin users preferred Summer Glow because it gives a better tanning effect. It submits that the "heart of the ads" is the reference to "the best summer tan", emphasised in the television advertisement by the exhortation to ' think again '. Johnson submits that Unilever intended to communicate superiority in terms of performance attributes and, in particular, that the television advertisement stresses tanning rather than moisturising or other attributes such as fragrance. Johnson makes these submissions with an eye to what it says is a disconformity between the study (which relevantly measured "7 out of 10" as a general preference) and the advertisements (which communicate performance superiority as to tanning). 29 Unilever contends that the competing products are sold as body lotions with a tanning component. The products are sold in the "moisturiser" section of the supermarkets, rather than among self-tanning or sunscreen products, where they are marketed as moisturisers that give a tan rather than as tanning agents. Unilever submits that the emphasis in the television advertisement is on the body lotion and the moisturising capacity of the body lotion that, additionally, provides for tanning; that is, a moisturiser with a hint of tanning where use will moisturise the skin and build a gentle tan. 69 In order to determine whether there has been a contravention of s 52(1) of the Act, ' it is necessary to determine whether or not the conduct complained of amounted to a representation which has or would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct...has been directed ' ( Astrazeneca at [34]). 70 Where the persons to whom the conducted is directed are not identified individuals, but members of a class to which the conduct is directed in a general sense, it is necessary to isolate a representative member of that class ( Campomar at [103]). The question then is whether a misconception is likely to arise on the part of that representative consumer from the conduct alleged ( Campomar at [103]); Astrazeneca at [34]). For there to be a contravention of s 52 , the ordinary or reasonable representee must be shown to labour under some erroneous assumption ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Campomar at [104]). The question is whether any misconceptions or deceptions alleged to arise from the advertisements are properly to be attributed to the ordinary or reasonable members of the class of the public towards whom the conduct has been directed ( Campomar at [104] [105]; Astrazeneca at [37]). 108 The distinction between the advertisements in this case and those in Astrazeneca illustrates why Johnson's criticism of the age of the population tested is made out. The appellant in Astrazeneca complained that patients with significant concomitant diseases, smokers and children under 12 years of age had been excluded from the study of ' 3416 patients with uncontrolled asthma ' upon which the advertisements were based. This was said to give rise to a misrepresentation that the results of the GOAL study would likely be achieved in clinical practice. No mention was made in the advertisements of the fact that the GOAL study did not include those patients. However, no contravention of s 52 of the Act arose because ' none of the flyers or advertisements represented that the GOAL Study patients were representative of the asthma suffering members of the community at large ' (at [48]). 109 Unilever chose to exclude certain women of certain ages from the study and now submits that age is not relevant to the outcome. Johnson has not established that the exclusion of women under 25 in fact biased the results but does not need to do so. Women of a variety of age groups, including those who appear to be in the under 25 age group, are portrayed in the television advertisement. The print advertisement invites "every woman", regardless of age, to use Summer Glow. The assertion of preference is thereby represented to be over the class of all women, or at least women over a range of ages that clearly includes under 25's. 110 The advertisements should be considered, in their totality, as directed to women without age restriction. The context of the advertisements was that a new market had been established. Previously, there was a market in tanning agents, moisturisers and sunscreens. Johnson established a new market in moisturisers that had a tanning effect. Unilever wished to enter that market and to take customers from Johnson as well as to expand the market. Unilever's existing market for its Dove products was, I infer from Mr Kibble's evidence absent Unilever submitting to the contrary, largely in the age group of 25 to 45 year old women. Johnson's market was particularly significant in the under 25 year old age group. The representation asserts a preference for Summer Glow by Holiday Skin users. However, the population surveyed excluded a substantial proportion of those users in circumstances where Unilever was, at least in part, targeting Johnson's market in which the under 25's were a substantial class. Where the conclusion drawn from the study should have been based on the Johnson user cohort, it was based on the Dove user cohort.