Federal Court of Australia
RB (Hygiene Home) Australia Pty Ltd v Procter & Gamble Australia Pty Limited (No 2) [2023] FCA 1491
ORDERS
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. By supplying “30 Minute Miracle” dishwashing tablets (Miracle) in the packaging depicted in Schedule 1 to the reasons published as RB (Hygiene Home) Australia Pty Ltd v Procter & Gamble Australia Pty Limited (No 2) [2023] FCA 1491 (the Miracle original packaging and the Reasons, respectively), the respondent, Procter & Gamble Australia Pty Limited, has represented, in trade or commerce, that Miracle is better at cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the “Fairy” range of products including “Fairy Platinum Plus” dishwashing tablets (Fairy Platinum Plus), and that there is a current adequate foundation in scientific knowledge for that claim, when in fact Miracle is not better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus, and the respondent has thereby:
(a) engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth));
(b) made a false or misleading representation that Miracle is of a particular standard or quality, in contravention of s 29(1)(a) of the Australian Consumer Law; and
(c) engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose, of Miracle, in contravention of s 33 of the Australian Consumer Law.
2. By supplying Miracle in the Miracle original packaging, the respondent, Procter & Gamble Australia Pty Limited, has also represented, in trade or commerce, that Miracle gives better cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the “Fairy” range of products in an eco-cycle or any other dishwashing cycle that exceeds 30 minutes, and that there is a current adequate foundation in scientific knowledge for that claim, when in fact Miracle is not better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus and “Fairy Platinum” dishwashing tablets in an eco-cycle wash, and the respondent has thereby:
(a) engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law;
(b) made a false or misleading representation that Miracle is of a particular standard or quality, in contravention of s 29(1)(a) of the Australian Consumer Law; and
(c) engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose, of Miracle, in contravention of s 33 of the Australian Consumer Law.
3. By supplying “Finish Ultimate Plus” dishwashing tablets (Finish Ultimate Plus) in the packaging depicted in Schedule 3 to the Reasons, and by promoting Finish Ultimate Plus in video advertisements as “our best dishwashing tablet”, the cross-respondent, RB (Hygiene Home) Australia Pty Ltd, has represented, in trade or commerce, that Finish Ultimate Plus is better at cleaning than all other “Finish” dishwashing tablets, including “Finish Ultimate Pro” dishwashing tablets (Finish Ultimate Pro), and that there is a current adequate foundation in scientific knowledge for that claim, when in fact there is no meaningful difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro, and the cross-respondent has thereby:
(a) engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law;
(b) made a false or misleading representation that Finish Ultimate Plus is of a particular standard or quality, or has performance characteristics which, in fact, it does not have, in contravention of s 29(1)(a) and (g) of the Australian Consumer Law; and
(c) engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose, of Finish Ultimate Plus, in contravention of s 33 of the Australian Consumer Law.
4. By supplying “Finish Ultimate Pro 0%” dishwashing tablets (Finish 0%) in the packaging depicted in Schedule 4 to the Reasons, the cross-respondent, RB (Hygiene Home) Australia Pty Ltd, has represented, in trade or commerce, that Finish 0% does not contain any ingredient that is unnecessary for the tablets to perform their function of cleaning items in an automatic dishwasher, when in fact Finish 0% contains colourants that are unnecessary for the tablets to perform that function, and the cross-respondent has thereby:
(a) engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law;
(b) made a false or misleading representation that Finish 0% is of a particular standard, quality, or grade, or has a benefit which, in fact, it does not have, in contravention of s 29(1)(a) and (g) of the Australian Consumer Law; and
(c) engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose, of Finish 0%, in contravention of s 33 of the Australian Consumer Law.
THE COURT orders THAT:
5. In the absence of agreement being reached between the parties on the form of the injunctions to be granted to give effect to the Reasons, or on the question of costs, each party, by no later than 4.00 pm on 8 December 2023, provide to the Associate to Yates J written submissions, limited to 3 pages, on the orders to be made.
6. Unless the parties request an oral hearing, and if it is otherwise appropriate, the question of the remaining relief to be granted be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[1] | |
[18] | |
[18] | |
[31] | |
[41] | |
[49] | |
[53] | |
[64] | |
[66] | |
[73] | |
[79] | |
[79] | |
[95] | |
[103] | |
[103] | |
[111] | |
[115] | |
[122] | |
[147] | |
[150] | |
The general approach to determining misleading or deceptive conduct | [150] |
[154] | |
[163] | |
[163] | |
[170] | |
[190] | |
[194] | |
[207] | |
[210] | |
[229] | |
YATES J:
1 This proceeding is about the packaging and promotion of automatic dishwasher detergent tablets (dishwashing tablets). It concerns claims and counter-claims made by two major competitors in the Australian market for dishwashing detergents.
2 RB (Hygiene Home) Australia Pty Ltd (RB) supplies dishwashing tablets under the “Finish” brand in various ranges which include Finish Ultimate Plus, Finish Ultimate Pro, Finish Ultimate Pro 0% (Finish 0%), and Finish Ultimate.
3 Procter & Gamble Australia Pty Limited (PG) supplies dishwashing tablets under the “Fairy” brand in various ranges which include Fairy 30 Minute Miracle (Miracle), Fairy Platinum Plus, Fairy Platinum, and Fairy All in One.
4 By an amended originating application dated 16 June 2023, RB seeks declarations that PG has contravened ss 18, 29(1)(a), and 33 of the Australian Consumer Law (the ACL) (Sch 2 to the Competition and Consumer Act 2010 (Cth)) by representing that:
(a) Miracle is better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus;
(b) Miracle is better at cleaning in a 30 minute dishwashing cycle than its competitors, including Finish;
(c) Miracle gives equal or better cleaning results in a 30 minute dishwashing cycle than can be achieved using any other dishwashing tablet in an eco-cycle or any other dishwashing cycle that exceeds 30 minutes; and
(d) there is a current adequate foundation in scientific knowledge for these representations.
5 These representations are alleged to have been made by two forms of packaging used for Miracle, depicted below at [79] and [89] (which I will call the original packaging and the revised packaging, respectively) and, in relation to the revised packaging, through a promotional campaign involving point of sale material and video advertisements (the Miracle representations).
6 On 28 April 2023, following a contested hearing in relation to the original packaging, I granted an interlocutory injunction, on RB’s application, restraining PG from representing that Miracle is better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus. The order was expressed to remain in effect from 3 May 2023 until the determination of this proceeding or further order: RB (Hygiene Home) Australia Pty Ltd v Procter & Gamble Australia Pty Ltd [2023] FCA 383 (RB v PG).
7 By a notice of cross-claim dated 16 August 2023, PG seeks declarations that RB has contravened ss 18, 29(1)(a) and (g), and 33 of the ACL by representing that:
(a) Finish Ultimate Plus is better at cleaning than all other Finish dishwashing tablets;
(b) Finish 0% dishwashing tablets do not contain any ingredient that is unnecessary for the tablets to perform their function of cleaning items in an automatic dishwasher;
(c) there is a current adequate foundation in scientific knowledge for these representations.
8 The representations with respect to Finish Ultimate Plus (the Finish Ultimate Plus representations) are alleged to have been made by the packaging depicted below at [103], in video advertising in which RB refers to the product as “our best dishwashing tablet”, and on RB’s Finish website where RB refers to “our next generation of dishwashing tablets”.
9 The representations with respect to Finish 0% are alleged to have been made by the packaging depicted below at [115] (the Finish 0% representations).
10 In opening their respective cases, RB and PG considerably narrowed the issues that fall for determination.
11 First, PG does not dispute that Miracle in its original packaging (depicted at [79] below) represents that Miracle is better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus and that that representation is not supported by the testing (discussed at [122] – [146] below). It proffers an undertaking, on a “without admissions” basis, not to advertise, sell, or offer to sell Miracle in that packaging. Given the basis on which the undertaking is proffered, it is still necessary for the Court to consider whether, by supplying dishwashing tablets in that packaging, PG has contravened the ACL as alleged.
12 Secondly, RB does not press its case based on the allegation noted at [4(b)] above.
13 Thirdly, RB has “pulled” the video advertising about which PG complains in respect of the marketing of Finish Ultimate Plus (a matter to which I will return). For present purposes I simply record that it is still necessary for the Court to consider whether RB’s use of that advertising contravenes the ACL.
14 Fourthly, the parties do not dispute that if the product performance representations at issue in this proceeding are made out, each of those representations necessarily carries with it the further representation that there is a current adequate foundation in scientific knowledge for the performance that is represented (the scientific foundation representation).
15 In addition, a number of submissions that were advanced in opening were not maintained in closing. At the time of closing, the parties confirmed that their closing submissions were the submissions on which they rely: Transcript p 141 line 26 – p 143 line 33 (RB); Transcript p 152 lines 25 – 47 (PG).
16 Finally, although RB’s amended originating application claims damages against PG (and its amended statement of claim alleges that it has suffered, and is likely to continue to suffer, loss and damage by reason of PG’s conduct), RB made clear in its oral closing submissions that it does not maintain a claim for damages. In its cross-claim, PG made a similar claim for damages against RB. PG did not, however, adduce any evidence of damage. In these circumstances, I have proceeded on the basis that it too does not maintain a claim for damages.
17 I am satisfied that PG has contravened the ACL in some respects as alleged by RB in relation to the original packaging, but not the revised packaging, of Miracle. I am satisfied that RB has contravened the ACL as alleged by PG.
The features of automatic dishwasher performance
18 The washing of items by an automatic dishwasher involves four main steps.
19 The first step is pre-cleaning by removing food residues and other debris from the soiled wash ware. This is undertaken to prevent an unnecessarily high level of dirt entering the dishwasher. Pre-cleaning can be undertaken either manually (e.g., using a scraper or water) or automatically by the pre-cleaning phase of the dishwasher itself.
20 The second step is cleaning the soiled wash ware using a cleaning solution consisting of water and detergent heated to an elevated temperature. The cleaning solution is delivered using pumps and nozzle spray systems.
21 The third step is rinsing. This is undertaken in one or two cycles using drinking water. Rinsing removes all residues of the cleaning solution and any remaining dirt particles. Generally, in the last rinse cycle, a rinse aid is added to the water. The resultant rinse solution has a reduced surface tension and therefore runs off the washed items readily. The rinse solution also improves drying. The rinse aid can be added separately to the dishwasher or can be a component of a multi-functional dishwashing product. This rinsing step is often carried out at a temperature above the temperature of the cleaning step. This supports the subsequent drying step and can improve the hygiene of the entire washing process.
22 The fourth step is drying. This can take place outside the dishwasher. When it takes place within the dishwasher, the drying is assisted by the heat stored in the washed items. Dishwashers can also incorporate various drying devices (e.g., fans, condensing devices, zeolite absorption, and heat pumps).
23 There are four cleaning factors that must work together in an automatic dishwasher: temperature; chemistry (in the form of the detergent and rinse aid); mechanics; and time. These factors must be coordinated optimally by the dishwasher.
24 Water occupies a special position because it mediates the interaction between the four factors and the items to be cleaned. The amount of water used is important. Its capacity to absorb dirt particles is limited. In an automatic dishwasher the water is continuously filtered to remove food residues. Water is also the solvent for the cleaner (detergent) and the transporting element of heat.
25 Water hardness is also important. The range of water hardness in Australian drinking water is discussed below. At the present time it is sufficient to note that the high concentration of calcium and magnesium ions in hard water can react with soap/detergent to destroy its cleaning action. Calcium and magnesium ions can also precipitate as salts which cause white stains on glassware and fill pipework within the dishwasher.
26 From the perspective of chemistry, the higher the water hardness, the more difficult it will be to remove soil and to keep it in solution; the lower the water hardness, the easier the cleaning process will be.
27 Therefore, cleaning tests are best done in hard water as the presence of hardness salts provides a better test of the chemistry of the tablet than soft water. If tests were to be run in soft water alone, there is a risk that the formulation would not work in hard water. On the other hand, if a formulation works in hard water, it will definitely work in soft water.
28 Some domestic dishwashers incorporate an ion exchanger to “soften” the water. At the start of the washing cycle, water is run through the exchanger, which absorbs calcium ions and releases sodium ions to create soluble salts. At the end of the washing cycle, the calcium ions are removed from the system by washing the exchanger with a salt solution, which requires added granular sodium chloride. Rinse aid also assists to keep calcium carbonate, which might otherwise precipitate, in solution.
29 The most important parameter of dishwasher cleaning is temperature. The minimum temperature is determined by the melting temperature of the fat component in the soils. The temperature significantly determines the energy consumption of the dishwasher. It is said that the temperature should be as high as necessary but as low as possible.
30 As to time, longer programme times can take advantage of the interaction of time, temperature, and chemical and mechanical actions. The performance of a dishwasher can be maintained, and a significant amount of energy saved, by increasing the duration of the washing cycle and simultaneously reducing the water temperature for washing and rinsing. However, there is some data that indicates that many consumers assume that a long programme time automatically increases the energy that is used.
31 Industrieverband Koerperpflege-und Waschmittel e.V. (IKW) is an industry and trade association of manufacturers and distributors of cosmetic, toiletry, perfumery, detergents, and household cleaning products based in Frankfurt, Germany. It is a founding member of the International Association for Soaps, Detergents and Maintenance Products, which provides policy recommendations and industry information to the regulators of the European Union in relation to soaps, detergents, and home maintenance products.
32 The IKW Standard (“Recommendations for the Quality Assessment of the Cleaning Performance of Dishwasher Detergents”) is a standard developed by IKW (the IKW Standard or, simply, the Standard). The parameters of the Standard include requirements related to the soil types tested, the tableware items used, water hardness, the method of making the soil, the number of soiled items in the dishwasher, the presence of additional soil in the body of the dishwasher (ballast soil), water temperature during the wash cycle, the time of the wash cycle, and the specific dishwasher to be used in testing. These parameters are intended to be uniformly applied to enable an accurate comparison between the performance of dishwashing detergents.
33 The IKW Standard is not an official standard of a national or international standardisation organisation. Nevertheless, it is accepted worldwide as a method for accurately assessing the performance of dishwasher detergents with objective results, and is widely used in testing by detergent producers, test houses, and consumer organisations. The evidence was that the IKW Standard is a very good way to test the comparative performance of dishwashing tablets.
34 The IKW Standard is designed to establish the complete wash profile of a detergent by reference to its action on four different soil classes. The term “soils” refers to the food or liquid on items of crockery, glassware or stainless steel that are placed in a dishwasher at the commencement of the washing cycle.
35 Under the IKW Standard, the soils to be tested (IKW soils) are divided into the following four soil classes (with the corresponding IKW soils in parentheses):
(a) bleachable (black tea);
(b) persistent/alkaline-sensitive (milk, milk skin (optionally, as an alternative to milk in the microwave oven));
(c) starch-containing, amylase-sensitive (starch mix, pasta); and
(d) protein-containing, protease-sensitive (egg yolk, crème brûlée, minced meat).
36 According to the Standard, at least one of the IKW soils in each class is to be tested. IKW soils are known to be difficult to remove. The Standard thus provides a severe test that allows for the differentiation of detergent products. Moreover, it standardises both the making of the test soils and the dishwasher conditions, and provides a protocol that allows comparable tests of the operation of dishwashing tablets under repeatable conditions that can be used to make measurements of the efficiency of cleaning.
37 The IKW Standard sets the lowest bound for water hardness—150 mg/L. The Standard also sets the highest bound, which is the highest water hardness at which a given tablet is stated to work. This is usually > 375 mg/L.
38 The IKW Standard relies on Miele GSL or Miele GSL2 dishwashing machines to carry out testing.
39 The measurement of cleanness under the IKW Standard is done by visual evaluation or by gravimetric measurement (weight loss). When visual evaluation is undertaken, the surfaces of the cleaned items are compared to reference photographs defining levels of cleanness scored from 1 – 10. Although this method is relatively simple (especially for trained scorers), it can lead to errors. However, it has the advantage over more complicated methods of measurement in that it is aligned with how a consumer determines whether a surface is clean (i.e., by visual inspection). When undertaken gravimetrically, weight loss measurements are taken and then transferred into a 1 – 10 scale. In each case, the data can be analysed statistically.
40 In the present case, visual evaluations were undertaken with respect to five of the seven IKW soils tested, as well as with respect to baked-on lasagne. Gravimetric measurements were undertaken with respect to the remaining two IKW soils tested.
41 Dishwashing tablets are complex mixtures of chemicals that are designed to act on a range of soils across a wide range of water types. The complexity of the chemistry reflects the different types of soils that need to be removed in the washing process, and the different levels of dissolved solids in the water. The soils are commonly food-based.
42 Dishwashing tablets include:
(a) alkalis, which raise the pH of the water to react with soils to make them easier to remove;
(b) enzymes, including protease enzymes that react with proteins in surface soils, and amylase enzymes that react to break down starchy food deposits;
(c) bleaches, which often contain oxygen (e.g., as percarbonate ions) to react with oxidisable stains (such as wine and coffee stains) to remove and decolourise them;
(d) surfactants, which allow other chemicals to wet and penetrate soils and to remove fat depositions as small droplets;
(e) polymers, which help to disperse soils and keep them from redepositing; and
(f) sequestrants, which further minimise the effect of hard water by keeping the ions in solution.
43 The Finish and Fairy products referred to at [66] and [73] below are multi-purpose or “all-in-one” dishwashing tablets (on its packaging of the Finish products RB uses the description “All in 1”).
44 The expression “all-in-one” is commonly used in the automatic dishwashing category to describe a product in a single tablet that is designed to clean without adding either salt (to soften the water) or rinse aid in the machine. The single tablet has sealed compartments or chambers that house the different components of the tablet.
45 The parties accept that the expression “all-in-one” (however spelled), when used as a description in relation to dishwashing tablets, is one that consumers in Australia would understand to mean a multi-purpose tablet.
46 As a general observation, all-in-one tablets include the above classes of chemicals, plus some salt and ionic compounds and rinse aid, for a successful wash. The salts are added to reduce the hardness of drinking water. The tablets can contain several polymer pouches for different ingredients in the tablet. The polymers dissolve at different points in the washing cycle to release the ingredients at appropriate times. The advantage of delayed release tablets is that different ingredients in the tablet, which provide different actions in automatic dishwashing, are separated and released at different times in the dishwashing cycle.
47 Finish Ultimate Plus incorporates (what RB calls) “CycleSync” technology (which, as I note below, is highlighted on the front of the Finish Ultimate Plus packaging). This technology provides for the delayed release of enzyme in the dishwashing tablet.
48 If all the ingredients are released at once, the part of the tablet that has bleaching action (agents such as alkalis and percarbonates) can react with, and deactivate, enzymes in the tablet (proteases and amylases) that dissolve proteins and starches in the soil. By separating the release of these groups of components in the tablet (such as by enclosing the enzymes within a slow-dissolving shell so that it releases after the bleaching agents), the action of the tablet in dishwashing can be made more efficient.
49 The case on the Finish 0% representations is concerned solely with the presence of colourants in the Finish 0% product. “Colourants” is an umbrella term which covers dyes (which are soluble in the host material) and pigments (which are not soluble in the host material).
50 The ingredients used in most dishwashing tablets are white or yellowish in colour. Colourants (usually in the form of dyes because of their water soluble characteristic) are added to the ingredients purely for aesthetic and marketing purposes to communicate the product “story” to consumers. As to marketing purposes, Dr Narinx (who holds the position of Global Innovation – AMA Home Care R&D Director of P&G Services Company NV) used the example of some television commercials for dishwashing tablets that show different coloured chambers in a multi-purpose dishwashing tablet as targeting particular aspects of the dishwasher cleaning process. However, colourants do not serve any functional purpose and do not affect the cleaning performance of the tablets.
51 Fahim Ahmed, a technology and technical consultant called by RB, explained that colourants do not bring cleaning benefits in detergents, but they do play an important role in communicating product quality, efficacy, and performance to consumers. Dr Ahmed’s evidence was that colour identifies the product brand to the consumer. He also said that colour has an emotional effect that influences consumer buying decisions. Dyes in detergents make the detergents more visually exciting and appealing, and give the impression that different coloured ingredients perform different tasks. As Dr Ahmed put it:
A viable, marketable consumer and household cleaning product, including automatic dishwashing detergents in any form, shape or delivery, is a complete product only when the product is visually appealing to the consumer by its aesthetics such as color, fragrance in the product, packaging and of course its highly effective performance at reasonable cost.
52 Dr Ahmed referred to the function of colour in cleaning products to avoid misuse, wrong use, and cross-contamination, and to communicate risks and avoid accidents. He also referred to the use of colour in the manufacture of “unit dosage” detergent products, such as all-in-one dishwashing tablets. There was a degree of dispute between Dr Ahmed and Dr Narinx on these matters. It is not necessary for me to consider those matters. They do not relate to the consumer experience in purchasing or using all-in-one dishwashing tablets which come to consumers in packaged form, with each tablet manufactured with the components of the tablet sealed in different compartments or chambers.
53 Water hardness is caused by the presence of calcium or magnesium salts in the water. Most of the water hardness in Australia is caused by calcium carbonate, the main source of which is limestone.
54 Hardness is an aesthetic parameter of drinking water. Hardness, itself, does not pose a health risk, although water that is low in hardness can promote pipeline leaching (the leaching of metals and other pipe surface materials into the water). This can result in intoxication of the public from metal leaching, or the harbouring of pathogenic microorganisms. In practice, most Australian water authorities or companies that supply soft water add lime to raise the hardness of the water to a level that is not likely to result in excessive pipeline leaching.
55 In Australia, the main reference to the quality of drinking water is the Australian Drinking Water Guidelines 6 2011 (ADWG) published by the National Health and Medical Research Council and the Natural Resource Management Ministerial Council. The ADWG is the peak document for drinking water quality in Australia. It is a guide for State-based regulatory instruments and for utility-specific management plans.
56 The effects of water hardness are:
(a) the precipitation of soap scum and the need for the excess use of soap to achieve cleaning;
(b) the formation of sediment, known as “scaling”; and
(c) corrosion (in the case of low hardness).
57 In Australia, water hardness is measured in milligrams per litre (mg/L) of calcium carbonate. For the sake of consistency, the magnesium in water is converted to a calcium equivalent. The sum of the calcium, and calcium-equivalent magnesium, is then expressed as a calcium carbonate equivalent. For all practical purposes, the mg/L unit of measurement equates to the parts per million (ppm) unit of measurement (i.e., 1 mg/L = 1 ppm).
58 The ADWG divides hardness into the following classes:
(a) < 60 mg/L – soft, possibly corrosive;
(b) 60 – 200 mg/L – good quality;
(c) 200 – 500 mg/L – increasing scaling problems; and
(d) > 500 mg/L – severe scaling.
59 Gideon Azar is a civil engineer with expertise in the Australian water industry. He provided a report in which he explained water hardness and commented on the level of water hardness in drinking water experienced by residents in the population centres of Australia.
60 As part of his report, Mr Azar analysed data from the 13 largest water utilities in Australia, which serve 78% of connected residential properties (meaning, residential customers who are supplied water directly by the utilities) covered by the National Performance Report 2021 – 2022 published by the Bureau of Meteorology. This data represents the position of approximately 75% of the Australian population. Mr Azar estimated that 70% of connected residential properties in Australia receive soft water, 29% receive good quality water, and 1% receive water with hardness of more than 200 mg/L.
61 Daniel Deere is a water, sanitation and hygiene consultant. Dr Deere reviewed Mr Azar’s report. He said that Mr Azar’s report was a reasonable summary of water hardness in most of Australia’s major centres. Subject to one qualification, Dr Deere expressed the opinion that Mr Azar’s estimates (referred to above) were based on reasonable professional judgment.
62 Dr Deere’s qualification was that Mr Azar was likely to have underestimated the proportion of the population receiving hard water. In Dr Deere’s opinion, Mr Azar had:
(a) inadvertently misclassified data relating to one utility (SAWater, Adelaide);
(b) used data on average water hardness in arriving at his estimate (whereas Dr Deere would have used, preferentially, data on maximum water hardness to which he would have added a “safety factor”);
(c) omitted information on regional and remote centres that receive “hard” to “very hard” water (Dr Deere’s concept of “hard” water was water above 60 mg/L in hardness); and
(d) used data from one reporting year which was relatively wet (Dr Deere said that water hardness can vary between years, with the last few years being relatively wet, with the consequence that, potentially, Mr Azar’s data set included data from some areas with lower than typical long-term water hardness).
63 Dr Deere did not provide a competing estimate. However, in a joint report Mr Azar and Dr Deere expressed the view that their difference in opinion was “not substantive”.
The dishwashing tablet market in Australia
64 The dishwashing tablet market in Australia is highly competitive. Consumers in that market are most heavily influenced by, firstly, price and, secondly, performance claims about the efficacy of the products.
65 RB and PG are the substantial competitors in that market.
66 As I have noted, RB’s dishwashing tablets include the following ranges:
(a) Finish Ultimate Plus;
(b) Finish Ultimate Pro;
(c) Finish 0%; and
(d) Finish Ultimate.
67 Some, but not all, of the products in these ranges are available in different scents. Products in these ranges are available in different pack sizes which vary by the number of tablets within the pack. The products are widely available for purchase by consumers, including in large supermarket chains.
68 RB’s premium or top-tier Finish dishwashing tablet is Finish Ultimate Plus, which was released in the Australian market on 20 March 2023. It is, and at the time of launch was, the most expensive dishwashing tablet supplied by RB under the Finish brand.
69 Finish 0% was released much earlier, in April 2021.
70 The packaging of all dishwashing tablets supplied under the Finish brand includes a logo:
71 RB draws attention to the stylised red ball over the “i” in the logo. It regards this as an important feature of its branding of all Finish dishwashing tablets.
72 Finish dishwashing tablets are presented in different shapes depending on the range to which they belong. The packaging of each range features a depiction of the shape of the tablet that belongs to the range. The stylised red ball features in those depictions, usually with two other dominant colours associated with the tablet.
73 As I have noted, PG’s dishwashing tablets include the following ranges:
(a) Miracle;
(b) Fairy Platinum Plus;
(c) Fairy Platinum; and
(d) Fairy All in One.
74 Miracle was released in the Australian market on about 23 March 2023.
75 The Fairy products in these ranges are available in different pack sizes which vary by the number of tablets within the pack. The products are widely available for purchase by consumers, including in large supermarket chains.
76 The price per tablet of these products generally depends on the size of the pack, with the price per tablet generally being lower as the size of the pack increases. At the present time, the price per tablet of Miracle in a 45 pack is the same as the price per tablet of Fairy Platinum Plus in a 42 pack, and the price per tablet of Miracle in a 31 pack is the same as price per tablet of Fairy Platinum Plus in a 28 pack, based on recommended retail prices.
77 However, at the time of launch, the price per tablet of Miracle in a 45 pack was significantly higher than the price per tablet of Fairy Platinum Plus in a 42 pack ($1.60 v $1.07 per tablet).
78 The formulation of Miracle is different to the formulation of Fairy Platinum Plus.
Miracle packaging and promotional material
79 The original packaging (front and back) for Miracle was:
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80 Larger versions of these images are in Schedule 1 to these reasons.
81 I note the following features of the original packaging.
82 The upper part of the front of the original packaging prominently bears the Fairy brand in red lettering against a white circular device on a gold background. The lower part bears the name “30 Minute Miracle” in white lettering on a green background with “30” rendered with an arrow device (in combination, the 30 minute device).
83 The 30 minute device also appears above and to the left of the “30 Minute Miracle” name, this time against a red background in association with the statement: “Better cleaning^ even in 30 minutes”. The chevron in this statement is barely visible. Its significance is not apparent in that, even though it seems to indicate a link to another part of the packaging, the linked part is not discernible on reasonable inspection.
84 However, at the very bottom of the front of the packaging, the following statement appears: “^ Tested vs. Fairy All In One” (the linked statement). The position of the linked statement on the bottom of the front of the packaging varies depending on the pack size (for example, in the 45 pack the linked statement is centred whereas on the 31 pack the linked statement is on the left of the pack). This is of no particular significance. What is significant is that the statement is in very small font. For practical purposes, it is inconspicuous.
85 As I observed in RB v PG at [138], it is doubtful that, on viewing the original packaging, many consumers would be cognisant of the chevron or the linked statement, except on a studied and prolonged inspection of the packaging—circumstances that are unlikely to obtain in the normal shopping experience of a great many consumers. I am satisfied that, even on prolonged inspection, many consumers, acting reasonably in their own interests, would fail to see the linked statement. I am unable to accept that the linked statement is a genuine attempt to qualify the prominent and strong statement that Miracle gives better cleaning, even in a 30 minute dishwashing cycle.
86 The back of the packaging contains a prominent panel which is headed: “TRY OUR FULL FAIRY RANGE FOR A CLEAN FOR EVERY NEED”. The panel lists 10 cleaning features against which Fairy All in One, Fairy Platinum, Fairy Platinum Plus, and Miracle are rated. The eighth feature is: “Cleans even in 30 minute cycle”. The ninth feature is: “Boosted Cleaning Power”. The tenth feature is: “Stain Removal Technology”.
87 As I noted in RB v PG at [43], in this panel Miracle and Fairy Platinum Plus are rated as having all the cleaning features up to and including the eighth feature. Importantly, each is shown to possess the feature “Cleans even in 30 minute cycle”. However, only Miracle is rated as having “Boosted Cleaning Power” and “Stain Removal Technology”. By reference to this panel, it is clear that Miracle is represented as having superior cleaning features compared to each of the other rated products.
88 On 30 April 2023, following the granting of the interlocutory injunction on 28 April 2023, PG took steps to stop distributing Miracle in the original packaging. On 1 May 2023, it engaged an agency to design artwork for stickers to be placed on the front and back of the packaging of the manufactured stock it held. The stickering process commenced on 4 May 2023. The first shipment of stickered stock was released from PG’s distribution centre on 30 May 2023. As at 4 October 2023, the process of stickering Miracle in the original packaging was ongoing.
89 The revised packaging (front and back) is:
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90 Larger versions of these images are in Schedule 2 to these reasons.
91 As will be apparent, the revised packaging is very similar to the original packaging. The revised packaging does, however, depart from the original packaging in a number of important respects.
92 First, the “better cleaning” statement on the front of the packaging, above and to the left of the “30 Minute Miracle” name, now reads: “Better cleaning^ than Fairy All in One in 30 minutes”. The chevron and the linked statement remain, without modification.
93 Secondly, the panel on the back of the packaging has been modified. It now lists only eight cleaning features against which Fairy All in One, Fairy Platinum, Fairy Platinum Plus, and Miracle are rated. The features “Boosted Cleaning Power” and “Stain Removal Technology” have been removed. Miracle and Fairy Platinum Plus are rated equally against the eight listed cleaning features.
94 RB’s case against PG relates to both the original packaging and the revised packaging of Miracle. However, as I have noted, PG does not seek to defend the original packaging.
95 PG’s point of sale material relating to Miracle includes “promotional tickets” which appear on supermarket shelves to attract the attention of consumers. The following is an example:
96 The ticket depicts the front of Miracle’s original packaging and, on the right hand side of the ticket, repeats the “better cleaning” statement: “Better cleaning^ even in 30 minutes”. However, unlike the same claim on the front of the original packaging, the linked statement on this part of the promotional ticket is directly below the “better cleaning” statement and is legible (albeit still in much smaller font). The linked statement conveys that the “better cleaning” statement is based on the comparative cleaning performance of Miracle against Fairy All in One in 30 minute and 60 minute dishwashing cycles. The “better cleaning” statement and the linked statement also appear in a red section at the bottom of the ticket.
97 This ticket was on display at a Coles Supermarket in Castle Towers Shopping Centre, Castle Hill, Sydney on 15 July 2023. This was at a time when PG had ceased to distribute Miracle in the original packaging, and after it had commenced distributing Miracle in the revised packaging.
98 This is the only example of a promotional ticket that is in evidence. The evidence does not indicate the extent to which such tickets were distributed or their currency following the introduction of the revised packaging. Given that the promotional ticket displays an image of Miracle’s original packaging, I infer that it is a remnant of an earlier promotion.
99 PG has also promoted Miracle online through videos on YouTube, involving 30 second, 15 second, and 6 second advertisements. The 15 second and 30 second advertisements were published on 1 June 2023. The 6 second advertisement was published on 16 June 2023.
100 At about the 26 second mark in the 30 second advertisement, the voiceover states: “Excellent clean in 30 minutes like Fairy Platinum Plus”. This sentence appears in written form in the advertisement with the words “in 30 minutes” in red and the remaining words in green.
101 The voiceover statement is not made in the 15 second or the 6 second advertisement. The written statement is displayed in the same form as in the 30 second advertisement but appears only fleetingly (approximately 1 second in the 6 second advertisement).
102 I was not taken to these advertisements in the course of the hearing. I have, however, viewed them as part of the evidence before me.
Finish Ultimate Plus packaging and advertising
Finish Ultimate Plus packaging
103 Since launch on 20 March 2023, the packaging of Finish Ultimate Plus (front and back) (the Finish Ultimate Plus packaging) has been:
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104 Larger versions of these images are in Schedule 3 to these reasons.
105 I note the following features of the packaging.
106 First, in the bottom right hand corner on the front of the packaging, reference is made to “CYCLESYNC OPTIMISED RELEASE TECHNOLOGY”. CycleSync technology—which is delayed release technology (see [47] – [48] above)—is new for RB and is only available in the Finish Ultimate Plus range of products.
107 This technology is explained (to some degree) in the top right hand side on the back of the packaging, underneath the brand and product name Finish Ultimate Plus, in conjunction with other information:
Finish Ultimate Plus All in 1, for our intensive clean in short cycles (1hr, 65°C) and diamond shine 1st time,
every time. It’s our first ever tablet with CYCLESYNC™ technology that releases the right ingredient
(Enzyme) to act at the right time. Its advanced chemistry is effective at breaking down all types of food
residues, even stubborn 24h burnt-on stains, without pre-rinsing.
The tabs help protect and care for your glassware and cutlery, maintaining their shine wash after wash. Our
Ultimate Plus performance with 15% less chemical weight than Finish’s traditional pressed powder tabs**
*Contains agents known to help protect glasses against corrosion and clouding. This product does not protect
from mechanical damage or restore already damaged items.
**vs Finish Power All in 1
108 The information is printed in extremely small font and is extremely difficult to read. It is detailed, and part of a mass of other graphical and pictorial material that appears on the back of the packaging. I doubt that reasonable and ordinary consumers, at the time of purchase, would pay any attention to this part of the packaging or would be bothered to read it.
109 What is more, I do not think that reasonable and ordinary consumers seeing the reference to “CYCLESYNC OPTIMISED RELEASE TECHNOLOGY” on the front of the packaging would realise that the back of the packaging provides further information in relation to that technology.
110 Nevertheless, it can be taken that RB considers this information (as well as other information on the back of the packaging) to be important to its marketing of the product, and worthy of being presented to consumers. It can also be taken that RB considers that those who wish to gain further information about the “CYCLESYNC OPTIMISED RELEASE TECHNOLOGY” on the front of the packaging will be motivated to find further information elsewhere on the packaging. There could be no other rationale for RB going to the trouble to include the information in the way it has. It can be taken, therefore, that RB is striving to communicate the quoted information and expects that some consumers will read it. Its conduct should be judged accordingly.
Finish Ultimate Plus advertising
111 RB undertakes various advertising campaigns with respect to the Finish dishwashing tablets. Relevantly to this case, RB conducted campaigns with respect to Finish Ultimate Plus in which video advertisements referred to the product as “our best dishwashing tablet”.
112 Remy Smalley (RB’s Category Marketing Manager of Finish products) gave evidence that these advertisements were last aired on television on 9 September 2023. He also gave evidence that these advertisements were removed from YouTube and Broadcast Video on Demand services (as from 25 October 2023), and from Instagram and Facebook (as from about 12.30 pm on 26 October 2023). Mr Smalley said that, as from 27 October 2023, RB no longer uses these advertisements and that it has no present intention of using them in the future.
113 This last-mentioned evidence was challenged by PG. On 30 October 2023, PG’s solicitors downloaded a video advertisement from the Amazon website for Finish Ultimate Plus which includes the statement “our best dishwashing tablet”.
114 Faced with this revelation, RB’s National Account Executive in charge of “paid search” (i.e., the sponsored links, banners, or videos that a user sees when searching on a platform such as Amazon), Stevan Vojvodic, logged onto RB’s Amazon Ads account and updated certain campaigns by RB on the Amazon website. According to Mr Vojvodic, all sponsored videos for Finish on Amazon.com.au have now been removed, including the advertisement making the claim “our best dishwashing tablet”.
115 The packaging of Finish 0% (front and back) (Finish 0% packaging) is:
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116 Larger versions of these images are in Schedule 4 to these reasons.
117 Apart from other information, the front of the packaging contains the prominent display of the statement: “0% Free from: perfume and unnecessary additive*” (the Finish 0% statement).
118 While the presence of the asterisk in this statement can be seen, there will be those within the class of ordinary and reasonable consumers who will not be cognisant of it. For those who will be cognisant of it, the asterisk has no obvious relationship with anything else on the packaging.
119 Like the Finish Ultimate Plus packaging, the back of the Finish 0% packaging contains a mass of other graphical and pictorial material. The top right side of the back of the packaging includes the following information:
Finish Ultimate Pro 0% All in 1, for our ultimate
clean & sparkling shine 1st time, every time.
Finish Ultimate Pro 0% - free from perfume and
unnecessary additive* is effective at breaking down all
types of food residues, without pre-rinsing.
Our ultimate cleaning performance, with 15% less chemical
weight than Finish’s traditional pressed powder tablets**
*Tolytriazole/Benzotriazole **Vs. Finish Power All in 1
^Vs. Finish Ultimate Pro All in 1
120 It will be noted that this information includes reference to “*Tolytriazole/Benzotriazole”. Tolytriazole is generally used in automatic dishwashing detergents as a corrosion inhibitor for metal parts and metal utensils when the product is used. Benzotriazole is generally used as a preservative to protect products against bacterial contamination (such as moulds and mildews).
121 A table in the middle of the back of the packaging contains alternately coloured sections. RB draws attention to the first and last sections titled “Free From” and “Helpers”:
122 The parties agreed on a protocol to test the comparative cleaning performance of the following products, with the testing to be carried out by one independent laboratory: Finish Ultimate Plus; Finish Ultimate Pro; Miracle; Fairy Platinum Plus; and Fairy Platinum (the protocol).
123 The step of agreeing on a protocol was taken at the suggestion of the Court to avoid, as far as possible, disagreements about:
(a) what products should be tested;
(b) the standard to be applied to determine product performance objectively;
(c) the competence of the laboratory carrying out the testing; and
(d) the laboratory’s performance in carrying out the testing,
for the purpose of assessing the parties’ respective cases on the Miracle representations and, as it came to pass, the Finish Ultimate Plus representations.
124 On 14 July 2023, I made orders to facilitate the development of the protocol and its provision to the independent testing laboratory. The orders also provided for the preparation and filing of a test report. Order 8 provided:
8. No party adduce any evidence of testing of dishwashing tablets other than the Test Report, except with leave of the Court.
125 The protocol was put forward, and agreed to, by the parties on the basis that they could “agree to disagree” on the appropriateness of some parameters of the testing to be undertaken, which could be debated at the final hearing. This was to ensure that, at the final hearing, the Court had before it one data set from one source of testing that covered RB’s claim against PG in respect of the Miracle representations and PG’s cross-claim against RB in respect of the Finish Ultimate Plus representations, as the parties sought to advance or defend those claims. As events have transpired, the disagreement between the parties has been minimal.
126 In general terms, the protocol provided for testing using the IKW Standard, with agreed modifications, in soft (52 ± 5 ppm) and hard (375 ± 5 ppm) water in a fast wash cycle (30 minutes) and in an eco-cycle (194 minutes). In broad terms, the four test scenarios can be described as: hard water and fast wash; soft water and fast wash; hard water and eco-cycle wash; and soft water and eco-cycle wash.
127 The soft water testing at 52 ± 5 ppm was lower than the lowest bound of water hardness under the IKW Standard. Peter Fryer, who is Professor of Chemical Engineering at the University of Birmingham in the United Kingdom, pointed out that the problem with very soft water testing is that some of the chemicals included in a test tablet formulation (e.g., salt and sequestrants that are added to cope for hardness) are not tested under these conditions. His opinion was that testing at this level of water hardness “will not provide much of a test for the chemistry” and “may affect the outcome of the experiments”. In other words, the low level of water hardness used in this testing is “not … a full test of the efficacy of the tablet”.
128 The performance of the five products was tested on seven IKW soils from the four classes of soils identified in the IKW Standard. An additional eighth soil (baked-on lasagne) was tested because Miracle makes a performance claim referable to this soil.
129 Four Fisher & Paykel DW60 dishwashers (of the same age) were used in 120 tests. These dishwashers are not the dishwashers specified in the IKW Standard. Each dishwasher was used for 30 tests: the five products were each exposed to one water hardness (hard or soft water) on two programmes (fast and eco-cycles), with three repeats for each programme ([5 x 2 x 3 = 30] x 4 = 120). Other equipment referred to in the IKW Standard is not available in Australia. However, Rainer Stamminger, who is a Senior Professor of Household Technology and Process Engineering at the University of Bonn in Germany, and Professor Fryer agreed that “mechanical differences” between the requirements of the IKW Standard and the protocol, which largely reflect the difficulty of sourcing equivalent products in Australia, should not affect the operation of the testing.
130 As the test dishwashers were different to the reference machines specified in the Standard a specific loading plan was adopted under the protocol. The baked-on lasagne dish was placed in the centre of the lower basket. Otherwise, the IKW Standard was followed using six soiled items for each IKW soil type.
131 The protocol provided that cleanness in respect of baked-on lasagne was to be measured against the IKW Standard of cleanness in respect of “minced meat” (i.e., the IKW soil) on glass dishes, as set out in a now outdated version of the IKW Standard. Professor Fryer said that there was no guarantee that lasagne will clean in the same way as minced meat. Further, although the IKW soils were tested with multiple repeats in each dishwasher, there was only one lasagne dish per wash test. Professor Fryer said that this would affect the statistical accuracy of the lasagne test, as there were fewer repeats to be examined than for the IKW soils.
132 Dr Narinx also commented on this. He accepted that independent test houses and consumer organisations may from time to time use lasagne as a soil to analyse the performance of a dishwashing product. Baked-on lasagne is not, however, an IKW soil and there is no agreed benchmark of cleaning performance against which to meaningfully measure it. Dr Narinx said that there was a concern about the potential variability of the results and the impact on the standard deviation in relation to the testing of baked-on lasagne. For this reason, he said that the results for baked-on lasagne should be treated as a data set separately from the results for the IKW soils. Treating the results for baked-on lasagne in the same way as the results for the IKW soils would “elevate” the former in a manner that was not justified. To do so would suggest that testing in respect of baked-on lasagne had the same thoroughness of the experimental design and industry benchmarking as the IKW soils.
133 Dr Narinx also suggested that testing for the effectiveness of removing baked-on lasagne is not the same as testing for the effectiveness of removing the IKW soils because the purpose of the latter, but not the former, is to assess the effectiveness of the tablet at “cleaning generally”. He also suggested that the inclusion of the additional soil (baked-on lasagne) in the test may place an “additional load” for cleaning performance. According to Dr Narinx, as the “additional load” is not part of the IKW Standard, it is not clear how this would impact the cleaning of the soils on the other items of wash ware.
134 Professor Stamminger and Professor Fryer agreed that, although baked-on lasagne is not an IKW soil, it is used by other groups as a test soil. They noted, however, that without the precise specification of the recipe and measurement method (as given for the IKW soils), results for baked-on lasagne may have more variation than would be expected for IKW soils. Further, they agreed that although cleanness with respect to baked-on lasagne was to be measured in the same way as “minced meat” in the IKW Standard, there was no guarantee that baked-on lasagne will clean in the same ways as “minced meat”.
135 Notwithstanding these comments and observations, the parties do not dispute that the experimental design of the protocol, and the methodologies that have been used to analyse the test results, are appropriate to detect significant statistical differences in the cleaning performance of the tested products.
136 In considering the relevance of the testing under the protocol for Australian consumers, Professor Stamminger expressed the opinion that the selected hardness of the drinking water used in the testing “covers the range of waters available for Australian consumers very well”. He also expressed the opinion that the use of the Fisher & Paykel DW60 dishwashers ensured that the “local requirements” of consumers were met. In his opinion, testing according to the protocol would “deliver relevant results … for Australian consumers”.
137 Although Professor Fryer expressed reservations about the soft water testing, his opinion was that the protocol embodied a “strong experimental design that will provide a significant number of repeats to increase the accuracy of the overall test”.
138 The testing was carried out by Enzyme Labs. The results of the testing were statistically analysed.
139 Professor Stamminger analysed the testing from the standpoint of Miracle’s cleaning performance compared to the cleaning performance of the other tested products. Zhiwu Liang, who holds the position of Principal Statistician at Procter & Gamble in Brussels, Belgium analysed the testing from the standpoint of the comparative cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro.
140 Relevantly to the Miracle representations (as now pressed), Professor Stamminger’s analysis of the test results shows that:
(a) in a 30 minute wash, Miracle is not better at cleaning than Fairy Platinum Plus;
(b) Miracle does not have equal or better cleaning results in a 30 minute wash than the other tested products in the eco-cycle wash.
141 Relevantly to the Finish Ultimate Plus representations, Dr Liang’s analysis of the test results shows that:
(c) in a 30 minute wash, there is no statistical difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro in hard water but, in soft water, the cleaning performance of Finish Ultimate Plus is statistically better than the cleaning performance of Finish Ultimate Pro on tea; and
(d) in the eco-cycle wash, there is no statistical difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro.
142 The finding in (c) requires elaboration. The only statistically significant difference found by Dr Liang was on the cleaning performance of the two products on one stain alone (tea when tested in soft water), it being remembered that the testing covered seven IKW Standard soils from the four classes of soils and an additional eighth soil (baked-on lasagne). It is not clear why this difference arose in the soft water testing and not in the hard water testing, especially when the evidence indicates that dishwasher cleaning is more difficult in hard water than in soft water.
143 To explain, dishwasher cleaning is more difficult in hard water than in soft water because the calcium and magnesium in hard water are effectively soils. As a result, the ingredients in the dishwashing tablets act on these soils in the water as well as the soils on the items in the dishwasher and in the dishwasher itself (typically, dishwashers are not clean and contain residual soils). Soft water contains significantly less calcium and magnesium in the water and, in some cases, close to no minerals. The ingredients in the dishwashing tablet are therefore free to act on the items in the dishwasher and on soils in the dishwasher itself and are not required to act on the minerals in the water. This makes for easier cleaning conditions.
144 In his first report, Professor Stamminger expressed the view that a proven difference in cleaning in respect of one of the IKW soils may not be a significant difference in overall cleaning performance. He said that a proven difference in the cleaning of two soil types may indicate a difference in the overall cleaning performance of a dishwashing tablet. As he put the matter with respect to the testing conducted by Enzyme Labs under the protocol:
As eight soil types are assessed per design point the overall probability of a wrong assessment is high when only a proven difference in one soil type would be used as indicator.
145 PG relied on this evidence to urge on the Court the conclusion that, despite Dr Liang’s observation, there is, in fact, no meaningful difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro in a 30 minute wash.
146 Based on Professor Stamminger’s view noted at [144] above, I am satisfied that there is no meaningful difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro.
Relevant provisions of the ACL
147 Section 18 of the ACL provides:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 5‑3.
148 Section 29(1)(a) and (g) provide:
29 False or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
…
(g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; …
149 Section 33 provides:
33 Misleading conduct as to the nature etc. of goods
A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
Note: A pecuniary penalty may be imposed for a contravention of this section.
The general approach to determining misleading or deceptive conduct
150 In order to determine for the purposes of s 18 of the ACL whether given conduct is misleading or deceptive, or likely to mislead or deceive—when, as here, the conduct is directed to the public or a part of the public—it is necessary to have regard to the effect or likely effect of the conduct on the ordinary and reasonable members of the class to whom the conduct is directed: Self Care IP Holdings Pty Ltd v Allergen Australia Pty Ltd [2023] HCA 8; 408 ALR 195 (Self Care).
151 In Self Care (at [83]), the High Court spoke of the need to:
… isolate an ordinary and reasonable “representative member” (or members) of that class, to objectively attribute characteristics and knowledge to that hypothetical person (or persons), and to consider the effect or likely effect of the conduct on their state of mind. This hypothetical construct “avoids using the very ignorant or the very knowledgeable to assess effect or likely effect; it also avoids using those credited with habitual caution or exceptional carelessness; it also avoids considering the assumptions of persons which are extreme or fanciful”. The construct allows for a range of reasonable reactions to the conduct by the ordinary and reasonable member (or members) of the class.
(Footnotes omitted.)
152 Sections 29(1)(a) and (g) and 33 include components of misleading conduct in their proscriptions (in conjunction with falsity in the case of s 29(1)(a) and (g)) and, to this extent, stand to be assessed on the same basis—the effect on the ordinary and reasonable consumer.
153 Here, the relevant class comprises purchasers and potential purchasers of dishwashing tablets for use in a domestic setting. This class has no unusual or special attributes that should be brought to bear in the analysis of whether the Miracle representations, the Finish Ultimate Plus representations, or the Finish 0% representations, if made, are misleading or deceptive, or likely to mislead or deceive.
The significance of disclaimers in packaging claims
154 It is appropriate to say something about the use and significance of disclaimers in relation to packaging claims given PG’s reliance on them to justify the impugned statements made on the original and revised packaging for Miracle, and given RB’s reliance on them to justify the impugned statements made on the Finish Ultimate Plus packaging and the Finish 0% packaging.
155 In Benlist Pty Ltd v Olivetti Australia Pty Ltd (1990) ATPR ¶41-043, Burchett J (at 51,590) identified the mischief that can attend the use of disclaimers: it is all too easy to make representations in the confidence that they will be acted upon and then, by way of a disclaimer, withdraw them in the confidence that the withdrawal will not be acted upon.
156 In Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 7 FCR 233 (Abundant Earth) at 239, the Full Court observed that there may well be cases where a disclaimer is effective to eliminate confusion which might otherwise exist because of a representation that has been made. However, the Full Court cautioned that it should not be assumed that because a disclaimer is made, it will be effective to eliminate confusion.
157 In that case, the Full Court was not persuaded that the appellant’s disclaimer (stating that the appellant or its product had no connection with the respondent or its products) was effective given the nature of the products involved (competing products that were small and inexpensive items), and the size and position of the disclaimer on the product. The Full Court regarded the disclaimer as fulfilling no useful purpose, and was not persuaded that any attempt to increase the size or position of the disclaimer on the packaging of the product would improve the understanding of consumers.
158 In Hutchence v South Seas Bubble Co Pty Ltd (1986) 64 ALR 330, Wilcox J (at 338) referred to Abundant Earth (and the authorities there cited by the Full Court) and said that the occasions on which conduct that is misleading or deceptive can be “neutralised” by an appropriate disclaimer are likely to be comparatively rare and confined to situations in which the court is able to reach satisfaction that the disclaimer is likely to be seen and understood by all those who would otherwise be misled.
159 In the same vein, Bromwich J noted in iNova Pharmaceuticals (Australia) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd [2018] FCA 1209 (at [25(2)]) that, generally speaking, a person engaging in misleading or deceptive conduct cannot use the device of a disclaimer to evade responsibility unless the disclaimer erases the proscribed effect.
160 In Australian Competition & Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3; 52 ATR 1, Stone J referred to the use of an asterisk to draw attention to a qualification to a representation. After referring to the treatment by Moore J of the use of this device in George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632; 49 IPR 553 at [46], her Honour said (at [27]):
In any particular case … the question remains whether the asterisk and its link to the additional information are sufficiently prominent to prevent the primary statement being misleading and deceptive or likely to mislead or deceive. The degree of prominence required may well vary with the potential of the primary statement to be misleading and deceptive. It seems to me that a representation that the price of goods is $295 is seriously misleading if the truth is that they are never available at that price. Even an astute observer noticing the asterisk and realising that it directs the reader to additional information might be led to believe that the goods were available for $295 at least in some circumstances. It is unlikely that such an observer would immediately conclude that they were never available at that price. In those circumstances it would take an extremely prominent reference to the additional information to prevent such a representation from being misleading.
161 In Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289; 135 FCR 1, Stone J (at [37]) repeated this observation, stating that the qualifying material must be sufficiently prominent to prevent the primary statement being misleading or deceptive, or likely to mislead or deceive (Moore J and Mansfield J agreeing at [1] and [17]); see also National Exchange Pty Ltd v Australian Securities & Investments Commission [2004] FCAFC 90; 49 ACSR 369 at [50] – [59] (Jacobson and Bennet JJ).
162 Obviously, the significance and effect of a disclaimer depends very much on the particular circumstances of a given case.
163 I am satisfied that, assessed from the perspective of ordinary and reasonable consumers of dishwashing products, the original packaging of Miracle represents that Miracle is better at cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the Fairy range. In that connection, I adhere to the provisional view I expressed in RB v PG at [140] – [142]:
140 The front of the packaging is prominently labelled with the Fairy brand. It is also prominently labelled with the product name “30 Minute Miracle” and Miracle’s performance claim. Rather than searching for a barely visible disclaimer, or qualification, of the bold representation that the product gives better cleaning even in 30 minutes—a claim consistent with the name of the product itself—it is more likely that the consumer will look to the panel on the back of the packaging (where, in any event, the respondent says that disclaimers are usually located) for relevant information. That panel exhorts consumers to TRY OUR FULL FAIRY RANGE FOR A CLEAN FOR EVERY NEED. One of those “needs” is shown as a 30 minute washing cycle. Two Fairy products are shown to clean “even in [a] 30 minute cycle”—Miracle and Platinum Plus.
141 The words “even in [a] 30 minute cycle”, as shown in the panel, are a borrowing from part of Miracle’s performance claim itself. However, Miracle’s performance claim also makes the claim of “better” cleaning. This is the dominant message of the claim. The natural question that is prompted by that part of the claim is: “better” cleaning than what?
142 That question is readily answered in the panel. Even though Miracle and Platinum Plus clean “even in [a] 30 minute cycle”, Miracle, unlike Platinum Plus, also has, amongst other characteristics, “Boosted Cleaning Power” and “Stain Removal Technology”. Miracle is the only product in the Fairy range of dishwashing tablets that claims to have those particular characteristics.
164 The representation that Miracle is better at cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the Fairy range is falsified by the testing on which the parties rely: in a 30 minutes wash, Miracle is not better at cleaning than Fairy Platinum Plus.
165 I am satisfied, therefore, that, by making this representation and its accompanying scientific foundation representation, PG has engaged in conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive, contrary to s 18(1) of the ACL. Similarly, PG has engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose, of the Miracle product, contrary to s 33 of the ACL. Further, the representation that Miracle is better at cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the Fairy range is a false or misleading representation that Miracle is of a particular standard or quality. By making that representation, PG has also contravened s 29(1)(a) of the ACL.
166 In its amended statement of claim, RB alleges that the original packaging of Miracle also represents that Miracle gives equal or better cleaning results in a 30 minute dishwashing cycle than can be achieved using any other dishwashing tablet in an eco-cycle or any other dishwashing cycle that exceeds 30 minutes.
167 I am not satisfied that the original packaging of Miracle represents that Miracle gives equal or better cleaning results in a 30 minute dishwashing cycle than can be achieved using any other dishwashing tablet (meaning any other brand of dishwashing tablet) in an eco-cycle or any other dishwashing cycle that exceeds 30 minutes. When the original packaging is considered as a whole (as it must be), the “better cleaning” statement on the front of the packaging is made with reference to the Fairy brand dishwashing tablets identified in the panel on the back of the packaging.
168 Assessed from that perspective, I am satisfied that the original packaging represents that Miracle gives better cleaning in a 30 minute dishwashing cycle than the other identified Fairy dishwashing tablets in an eco-cycle or any other dishwashing cycle that exceeds 30 minutes. This representation is also falsified by the testing on which the parties rely: Miracle does not have equal or better cleaning results in a 30 minute wash than the cleaning results achieved by Fairy Platinum Plus and Fairy Platinum in the eco-cycle wash.
169 I am satisfied, therefore, that, by making this representation and its accompanying scientific foundation representation, PG has engaged in conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive, contrary to s 18(1) of the ACL. Similarly, PG has engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose of the Miracle product, contrary to s 33 of the ACL. Further, the representation that Miracle gives better cleaning in a 30 minute dishwashing cycle than the other identified Fairy dishwashing tablets in an eco-cycle or any dishwashing cycle that exceeds 30 minutes, is a false or misleading representation that Miracle is of a particular standard or quality. By making that representation, PG has also contravened s 29(1)(a) of the ACL.
170 RB’s case is that the revised packaging for Miracle makes the same representations pleaded in relation to the original packaging, even though the “better cleaning” statement in the revised packaging is in markedly different terms.
171 In this regard, RB contends that the statement “Better cleaning^ than Fairy All in One in 30 minutes” includes a meaning, which is conveyed to “a sufficient section of reasonable consumers”, that the comparison is one between Miracle and all other Fairy “all-in-one” dishwashing tablets, and not simply between Miracle and the product that is Fairy All in One. According to this contention, the “better cleaning” statement represents that Miracle is better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus because Fairy Platinum Plus is a Fairy “all-in-one” dishwashing tablet.
172 RB submits that the meaning it advances is reinforced by the panel on the back of the revised packaging. This is for two reasons.
173 First, according to RB, the panel on the back of the revised packaging informs consumers that Fairy All in One does not clean in a 30 minute cycle. RB submits that it would “defy belief” that the “better cleaning” statement on the front of the revised packaging compares the cleaning performance of Miracle to a dishwashing tablet (Fairy All in One) which the panel “states clearly is not to be used in a 30 minute cycle”.
174 Secondly, despite the fact that the panel on the back of the packaging discloses that Miracle and Fairy Platinum Plus do clean in a 30 minute cycle, RB contends that this is not a parity claim that negates the superiority claim of “better cleaning” that is made on the front of the packaging.
175 RB also submits that the meaning it advances is reinforced by the use of the chevron in the “better cleaning” statement. RB’s argument is that reference to the linked statement (by means of the chevron) would be redundant if the “better cleaning” statement is understood as a comparison between Miracle and Fairy All in One.
176 RB contends, therefore, that, properly understood, the “better cleaning” statement on the front of the revised packaging is, in fact, a representation about the superior cleaning performance of Miracle over Fairy Platinum Plus, not a representation about the superior cleaning performance of Miracle over Fairy All in One.
177 I do not accept these submissions.
178 The reference to “Fairy All in One” in the “better cleaning” statement on the front of the packaging is, plainly, to the Fairy dishwashing tablet product that is called “Fairy All in One”. I am not persuaded that ordinary and reasonable consumers would be diverted from this obvious reference to a particular Fairy product and engage in a process of somewhat fanciful reasoning that, in truth, the packaging is referring not to a particular product but to a whole category of Fairy dishwashing tablets (“all in one” tablets) which also happens to include Miracle itself.
179 Confirmation (if confirmation be needed) that the “better cleaning” statement is referring to the Fairy All in One product is provided by the information in the panel on the back of the packaging. The panel informs the reader that both Miracle and Fairy Platinum Plus possess the characteristic of “Cleans even in 30 minute cycle” (the 30 minute cleaning characteristic). Contrary to RB’s submission, as between Miracle and Fairy Platinum Plus, this is a parity claim. Miracle and Fairy Platinum Plus (but not the other two identified Fairy products Fairy All in One and Fairy Platinum) are represented as sharing this characteristic. The bar graphs in the panel show Miracle and Fairy Platinum Plus have the same endpoint in terms of performance in this regard. There is no reason for ordinary and reasonable consumers to think (and ordinary and reasonable consumers would not think) that parity between Miracle and Fairy Platinum Plus with respect to the 30 minute cleaning characteristic is not claimed.
180 Further, contrary to RB’s submission, nothing in the revised packaging states that Fairy All in One is not to be used in a 30 minute cycle. The panel on the back of the packaging certainly does not make so dogmatic a statement. However, it does make clear that cleaning in a 30 minute washing cycle is not one of Fairy All in One’s claimed cleaning characteristics. By way of contrast, 30 minute cleaning is one of Miracle’s claimed characteristics that provides one of a number of cleaning advantages that Miracle has over Fairy All in One. The other cleaning advantages are said to be “Blasts through baked-on food”, “Machine & filter cleaning”, and “Ultra shine technology”. This is entirely consistent with the statement on the front of the revised packaging that Miracle has “better cleaning” than Fairy All in One in 30 minutes. I should add that there is no dispute that Miracle has better cleaning performance than Fairy All in One in a 30 minute dishwashing cycle.
181 With respect to RB’s submission based on the asserted redundancy of the chevron in the “better cleaning” statement, the chevron can only be significant if it sufficiently draws attention to the linked statement. If, contrary to the finding I have made above, the chevron does draw attention to the linked statement, then the consumer will know from the linked statement that the “better cleaning” statement is made with reference to Fairy All in One, not Fairy Platinum Plus or any other Fairy dishwashing tablet that is an “all-in-one” tablet. Even though in these unlikely circumstances the linked statement would come to the consumer’s attention, I do not accept that the consumer would then re-engage with the product name Fairy All in One in the “better cleaning” statement to reason that, in fact, the reference is intended to be to all Fairy “all-in-one” tablets. A consumer who thought that would not be acting reasonably, because that belief would be contrary to the linked statement itself.
182 Therefore, RB’s case that the revised packaging represents that Miracle is better at cleaning in a 30 minute dishwashing cycle than Fairy Platinum Plus has not been established. To find otherwise would be to ignore what the packaging actually says.
183 As I have noted, RB also alleges that the revised packaging represents that Miracle gives equal or better cleaning results in a 30 minute cycle than can be achieved using other dishwashing tablet in an eco-cycle or other dishwashing cycle that exceeds 30 minutes.
184 I do not accept that that representation has been established.
185 First, as with the original packaging, the revised packaging makes comparisons with respect to the cleaning performance of Miracle in relation to other Fairy dishwashing tablets. I do not accept that reasonable and ordinary consumers would understand the comparisons to be with respect to Miracle in relation to all other dishwashing tablets (i.e., including all other brands of dishwashing tablets).
186 Secondly, as I have said, the “better cleaning” statement is made with respect to Miracle in relation to Fairy All in One: Miracle provides “better cleaning” in 30 minutes than Fairy All in One. I do not accept that the “better cleaning” statement imports a representation that is broader than that simple statement. Once again, there is no dispute that Miracle has better cleaning performance than Fairy All in One in a 30 minute dishwashing cycle.
187 Thirdly, I do not accept that, as expressed, the 30 minute cleaning characteristic conveys to ordinary and reasonable consumers anything more than that Miracle (and, for that matter, Fairy Platinum Plus) will clean in a 30 minute cycle. I do not accept that the terms in which the 30 minute cleaning characteristic is expressed conveys a comparison between the cleaning performance of Miracle (or Fairy Platinum Plus) in a 30 minute cycle and the cleaning performance of another Fairy dishwashing tablet, let alone another brand of dishwashing tablet, in a different washing cycle.
188 In closing submissions, RB advanced another case, which was that the terms in which the 30 minute cleaning characteristic is expressed in the panel on the back of the packaging (“Cleans even in 30 minute cycle”) mean that Miracle “can clean in longer cycles too but delivers the performance in 30 minutes you would get in a normal program”.
189 This is not one of the representations that RB has pleaded in respect of the revised packaging. I do not propose to permit the parties to expand their cases beyond their pleadings, particularly having regard to the case management steps that have been taken to confine the parties’ pleaded allegations to agreed testing. Even so, I do not accept that the terms in which the 30 minute cleaning characteristic is expressed convey a representation that Miracle delivers the same cleaning performance in a 30 minute cycle as it does in other dishwashing cycles.
190 The role of PG’s promotional videos in the alleged contraventions has not featured in RB’s submissions. I am not satisfied that these advertisements for Miracle convey the pleaded representations.
191 The single promotional ticket to which I have referred ([95] – [98] above) was not referred to in RB’s closing submissions. This item of evidence adds very little to RB’s case. As I have said, it appears to be a remnant of the earlier promotion of Miracle in the original packaging.
192 Although the original packaging of Miracle is depicted on the ticket, anyone who was motivated to inform himself or herself about what the ticket was promoting would see the “better cleaning” statement on the right hand side. Even though it is in much smaller font, I am satisfied that the reader would also see the linked statement and understand that the “better cleaning” statement is a qualified statement about the comparative cleaning performance of Miracle against Fairy All in One in 30 minute and 60 minute washing cycles. As I have said before, there is no dispute that Miracle has better cleaning performance than Fairy All in One in a 30 minute dishwashing cycle. RB has not adduced evidence that Miracle is not better at cleaning than Fairy All in One in a 60 minute dishwashing cycle.
193 I am not satisfied, therefore, that RB has established the alleged contraventions of ss 18, 29(1)(g), and 33 of the ACL based on PG’s use of the promotional ticket.
Finish Ultimate Plus packaging
194 I am satisfied that the Finish Ultimate Plus packaging represents that Finish Ultimate Plus is better at cleaning than all other Finish dishwashing tablets.
195 The statement “CYCLESYNC OPTIMISED RELEASE TECHNOLOGY” appears prominently on the front of the packaging. Ordinary and reasonable consumers would understand this to be a statement about the special cleaning attributes of the product, specifically with respect to the release of the product’s ingredients in the washing cycle. The words “optimised release” signify that, because of the special technology that Finish Ultimate Plus incorporates, the cleaning agents in the tablet are released at the best or most effective time for cleaning. This is confirmed on the back of the packaging, which elaborates that Finish Ultimate Plus “releases the right ingredient (Enzyme) to act at the right time”.
196 Importantly, the back of the packaging also informs consumers that Finish Ultimate Plus is Finish’s “first ever” dishwashing tablet to incorporate “Cyclesync” technology. The words “first ever” imply—and thereby represent—that Finish Ultimate Plus is, in fact, the only Finish dishwashing tablet to incorporate the technology.
197 Further, this part of the packaging makes a number of other, related cleaning statements. Finish Ultimate Plus: (a) has “advanced chemistry” to break down “all types of food residues, even stubborn 24h burnt-on stains” without the need to pre-rinse the items to be cleaned; (b) gives a “diamond shine 1st time”; and (c) “help[s] protect and care for your glassware and cutlery, maintaining their shine wash after wash”.
198 This part of the packaging also says that Finish Ultimate Plus is “for our intensive clean in short cycles”—represented to be 1 hr at 65°C. The usage instructions printed elsewhere on the back of the packaging explain that this is but the recommended cycle for “best results”. The usage instructions make clear that Finish Ultimate Plus is suitable in “eco/auto cycles”.
199 RB submits that the Finish Ultimate Plus packaging makes no claim of superiority. As RB puts it, “there is no representation of absolute superiority of Finish Ultimate Plus in cleaning in every program, water condition or soil type … and particularly no claim is made of superiority in an eco-wash”.
200 It is true that the packaging makes no explicit claim of “absolute superiority” or any explicit comparison between the cleaning performance of Finish Ultimate Plus and the cleaning performance of other Finish dishwashing tablets. It is also true that the packaging does not claim cleaning superiority with reference to an eco-wash although, as I have just noted, the usage instructions make it clear that Finish Ultimate Plus is suitable in “eco/auto cycles”.
201 However, when the packaging is considered as a whole, the dominant message that is conveyed is that Finish Ultimate Plus’s “Cyclesync” technology sets it apart from all other Finish dishwashing tablets and provides it with a superior (and hence better) cleaning performance. This stands as a representation of the cleaning superiority of Finish Ultimate Plus over other Finish dishwashing tablets.
202 Further, while I accept that the packaging of Finish Ultimate Plus does recommend that the product be used in a 1 hr, 65°C cycle “for best results”, it does not say that the specific cleaning performance it promises is only available in a 1 hr, 65°C cycle. It does not represent, for example, that the “Cyclesync” technology only works when Finish Ultimate Plus is used in certain dishwashing cycles or that the cleaning performance that is promised can only be achieved in a specific dishwashing cycle.
203 The delivery of the message of Finish Ultimate Plus’s superior cleaning should also be seen in the context that RB markets Finish Ultimate Plus as its premium or top-tier Finish dishwashing tablet. Finish Ultimate Plus is the most expensive dishwashing tablet supplied by RB under the Finish brand.
204 RB submits that the tiering of Finish Ultimate Plus and its price differential do not mean that RB is representing that Finish Ultimate Plus will produce better cleaning results than other Finish dishwashing tablets in all washing conditions and programmes. While, as an abstract proposition, this might be correct, I accept PG’s submission that ordinary and reasonable consumers will take Finish Ultimate Plus’s premium tiering and premium price into account as matters that reinforce the message conveyed by the packaging that Finish Ultimate Plus is better at cleaning than all other Finish dishwashing tablets.
205 As I have found, there is no meaningful difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro. I am satisfied, therefore, that, by representing through the use of the Finish Platinum Plus packaging, that Finish Platinum Plus is better at cleaning than all other Finish dishwashing tablets, and by making its accompanying scientific foundation representation, RB has engaged in conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive, contrary to s 18 of the ACL. Similarly, RB has engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose of the Finish Ultimate Plus product, contrary to s 33 of the ACL. Further, the representation that RB has made is a false or misleading representation that Finish Ultimate Plus is of a particular standard or quality, or has performance characteristics which, in fact, it does not have. In that regard, RB has also contravened s 29(1)(a) and (g) of the ACL.
206 In reaching these findings, I have borne in mind my earlier remarks concerning the placement and size of the information on the back of the packaging about the “Cyclesync” technology and Finish Ultimate Plus’s cleaning performance. As I have said, I doubt that ordinary and reasonable consumers, at the time of purchase, would pay any attention to this part of the packaging or would be bothered to read it. However, as I have also said, this is information that RB is communicating to consumers and, that being the case, its conduct should be judged accordingly.
Finish Ultimate Plus advertising
207 PG submits that many consumers who have seen video advertisements discussed at [111] – [114] above “will bring to the supermarket the understanding that [Finish Ultimate] Plus cleans better than [Finish Ultimate] Pro”, and that these consumers are “even more likely to be misled than the consumers who only see the packet”.
208 I am satisfied that these advertisements represent that Finish Ultimate Plus is better at cleaning than all other Finish dishwashing tablets. This representation is falsified by the fact that there is no meaningful difference in the cleaning performance of Finish Ultimate Plus and Finish Ultimate Pro.
209 As with the Finish Ultimate Plus packaging, I am satisfied that, by publishing the video advertisements with respect to Finish Ultimate Plus, RB has contravened ss 18, 29(1)(a) and (g), and 33 of the ACL.
The Finish 0% packaging
210 I am satisfied that the Finish 0% statement represents that Finish 0% dishwashing tablets do not contain any ingredient that is unnecessary for the tablets to perform their function of cleaning items in an automatic dishwasher. This is the clear message of the statement.
211 The context for the Finish 0% statement is that the product is one for cleaning items in an automatic dishwasher. The statement is juxtaposed with the additional statement “100% Finish Cleaning Performance^”. Given these matters of context, the clear implication of the statement—and the representation that is made—is that use of the product will give complete cleaning of items in an automatic dishwasher without additives that are unnecessary for that purpose.
212 RB relies on other matters of context to submit that the Finish 0% representations are not conveyed by the Finish 0% packaging.
213 First, RB points to the image of the Finish dishwashing tablet on the front of the packaging which contains a bright red ball (part of the Finish branding), green gel, and blue powder. RB argues that the consumer is therefore provided with an image of coloured tablets that are within the pack, and is “left in no doubt that ‘colourants and dyes’ are used in the product”.
214 Secondly, RB points to the panel in the middle on the back of the packaging. The first section of the panel states that the product is free from added preservatives and perfume. The last section of the panel (headed “Helpers”) refers to the fact that “colourant” “gives colour to the tablet”.
215 Thirdly, RB relies on the fact that, in the Finish 0% statement, “additive” is expressed in the singular. This, RB submits, is a specific reference to the additive “Tolytriazole/Benzotriazole” which, in the statement on the back of the packaging quoted at [119] above, is preceded by an asterisk. RB submits that the use of the asterisk is for “reinforcement”, not “qualification”. According to RB, “Tolytriazole/Benzotriazole” has been clearly identified as the unnecessary additive.
216 RB submits:
In the broader context, a reasonable consumer viewing the bright and clear image of the Finish 0% tablet on the packaging would expect that the tablets have colours and dyes in them to produce the colour. Colourants are very important product attributors and additives for cleaning products as they impart very important characteristics such as product identification, brand identity and brand loyalty. Consumers expect to see colourants and dyes in tablets, and colourants in a cleaning product play an important role in communicating product quality, efficacy and performance to consumers.
217 I accept that the use of colourants in dishwashing tablets plays a role in RB’s marketing of its products. In this sense, colourants are not “unnecessary additives” to the products; they are necessary for RB’s marketing. However, I do not think that ordinary and reasonable consumers are concerned about what RB considers to be important or necessary for its marketing. Moreover, ordinary and reasonable consumers would not expect RB to be communicating information about its marketing needs. Ordinary and reasonable consumers will be concerned about the attributes and cleaning function of the dishwashing product they are buying.
218 The statement “0% Free from: perfume and unnecessary additive*” juxtaposed with “100% Finish cleaning performance^” is a prominent and powerful statement about this particular product. It is the freedom from “unnecessary additive” that stands as the product’s reason for being. It is the product’s point of distinction from other Finish dishwashing tablets. The product, as presented by its packaging, is clearly directed to those consumers who prefer (for whatever reason) to use a product that does not contain anything that is generally added to dishwashing tablets but is not necessary for the product to achieve complete cleaning (100% cleaning performance). This is the starting point for the analysis of the case that PG brings against RB in this regard.
219 I do not accept a number of RB’s submissions.
220 I do not accept that ordinary and reasonable consumers will necessarily be alert to the fact that, as a matter of grammar, the singular “additive” is used in the Finish 0% statement.
221 Further, I have already expressed my reservation that ordinary and reasonable consumers will be cognisant of the use of the asterisk in the statement. For those who are, the asterisk has no obvious relationship with anything else on the rest of the packaging. The words “Tolytriazole/Benzotriazole” (preceded by an asterisk) are buried within the statement on the back of the packaging that I have quoted ([119] above). As I have noted, that statement is, itself, part of a mass of other graphical and pictorial material on the back of the packaging.
222 Therefore, I do not accept RB’s submission that “Tolytriazole/Benzotriazole” has been clearly identified. On reading the Finish 0% statement, many ordinary and reasonable consumers will not be alerted to the fact that the only “additive” on which RB relies to justify the statement that Finish 0% is free from “unnecessary additive” is “Tolytriazole/Benzotriazole”.
223 Further, I do not accept that ordinary and reasonable consumers will reason that, because the tablet depicted on the front of the packaging is coloured, colourants or dyes must necessarily have been added to Finish 0%. There is nothing in the evidence to suggest that consumers know anything about how dishwashing tablets are manufactured—in particular, whether the constituents of the dishwashing tablet are naturally coloured or are artificially coloured in the process of manufacture. RB’s submission in this regard proceeds on an assumption that has not been established by evidence.
224 The only matter that gives me pause is the information in the panel on the back of the packaging in the section headed “Helpers”. This section identifies the presence of a “colourant” that “gives colour to the tablet”. I accept that consumers who are motivated to read all the information on the back of the Finish 0% packaging would understand that a “colourant” is used to colour Finish 0% dishwashing tablets and that this might be a qualification to the Finish 0% statement. However, having noted that acceptance, two comments should be made.
225 First, the information about “colourant” is not necessarily a qualification of the absolute statement “0% Free from … additive”. A “colourant” might be present which also has a cleaning function and is not, therefore, an “unnecessary additive” in the sense in which ordinary and reasonable consumers will understand those words.
226 Secondly, and perhaps more importantly, ordinary and reasonable consumers will not necessarily be motivated to read all the information contained on the packaging of Finish 0%, whether at the time of purchase or later. Once again, the back of the packaging of Finish 0% contains a mass of graphical and pictorial information. It would be unrealistic to expect that, as a practical matter, ordinary and reasonable consumers will read, digest, and engage in the kind of reasoning that would lead to the realisation that the Finish 0% statement is really one about RB’s interests and not the consumer’s interests. The information in the last section in the panel on the back of the packaging does not stand as a sufficient qualification of the important, prominent, and otherwise unqualified Finish 0% statement itself.
227 In this regard, I consider the panel on the back of the packaging of Finish 0% to be of a different character to the panel on the back of the Miracle packaging (both on the original and on the revised packaging), which so obviously and unambiguously draws attention to the attributes, and comparative cleaning performance, of the identified dishwashing tablets.
228 I am persuaded that the Finish 0% packaging conveys a false or misleading representation because, in fact, Finish 0% does contain constituents (colourants) that are unnecessary for the tablets to perform their function of cleaning items in an automatic dishwasher. Therefore, the supply by RB of Finish 0% in that packaging is conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive, contrary to s 18 of the ACL. Similarly, RB has engaged in conduct that is liable to mislead the public as to the nature, the characteristics, or the suitability for purpose of the Finish 0% product, contrary to s 33 of the ACL. Further, the Finish 0% statement, as made in the Finish 0% packaging, is a false or misleading representation that Finish 0% is of a particular standard, quality, or grade, or has a benefit which, in fact, it does not have. By making that statement, RB has also contravened s 29(1)(a) and (g) of the ACL.
229 Given the contraventions I have found, which concern the interests of consumers and not just the private interests of the parties, it is appropriate that declarations of contravention be made.
230 It is also appropriate that injunctive relief be granted. My provisional view is that this relief should not be confined to restraining use of the impugned packaging, but should extend more generally to restraining the making of the impugned representations by any means.
231 For this reason, I am not minded to accept the undertaking proffered by PG at the commencement of the hearing. Further, the undertaking is expressed to be without admissions, which I do not consider to be appropriate in light of my findings of contravention.
232 My provisional view is that the injunction to be granted against PG should be in these terms:
The respondent, Procter & Gamble Pty Limited, be restrained in trade or commerce from:
(a) supplying Miracle in the Miracle original packaging;
(b) representing that Miracle is better at cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the “Fairy” range of products when there is no adequate foundation in scientific knowledge for that claim; and
(c) representing that Miracle gives better cleaning in a 30 minute dishwashing cycle than the other dishwashing tablet products in the “Fairy” range of products in an eco-cycle or any dishwashing cycle that exceeds 30 minutes, when there is no adequate foundation in scientific knowledge for that claim.
233 My provisional view is that the injunction to be granted against RB in relation to Finish Ultimate Plus should be in these terms:
The cross-respondent, RB (Hygiene Home) Australia Pty Ltd, be restrained in trade or commerce from:
(a) supplying Finish Ultimate Plus in the Finish Ultimate Plus packaging; and
(b) representing that Finish Ultimate Plus is better at cleaning than all other Finish dishwashing tablets when there is no adequate foundation in scientific knowledge for that claim.
234 My provisional view is that the injunction to be granted against RB in relation to Finish 0% should be in these terms:
The cross-respondent, RB (Hygiene Home) Australia Pty Ltd, be restrained in trade or commerce from:
(a) supplying Finish 0% in the Finish 0% packaging; and
(b) representing that Finish 0% does not contain any ingredient that is unnecessary for the tablets to perform the function of cleaning items in an automatic dishwasher, when that is not the case.
235 I will hear the parties on the form of the final injunctions to be granted. I will also hear the parties on costs, although my provisional view is that PG should pay the costs of RB’s application and RB should pay the costs of PG’s cross-claim, subject to any orders for costs already made.
236 In the absence of agreement between the parties on these questions, the parties should provide succinct written submissions on the form of the injunctions to be granted and the order(s) for costs that should be made. If appropriate, I will determine those questions on the papers, unless the parties request an oral hearing. If there is to be an oral hearing, it will be appointed on short notice.
I certify that the preceding two hundred and thirty-six (236) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. |
Associate:
Miracle original packaging.
Miracle stickered packaging (the revised packaging).
Finish Ultimate Plus packaging.
Finish 0% packaging.
