The recent case of ACCC v Kimberly-Clark Australia Pty Ltd (No 2) [2021] FCA 102 (ACCC v KCA) serves as a timely reminder of the need for businesses to be aware of their obligations under the Australian Consumer Law (ACL) when making claims about their products when advertising, including website content, banners and logos.
The ACCC commenced proceedings in the Federal Court of Australia against Kimberly-Clark, arguing that it had made false and misleading representations about their Kleenex Cottonelle ‘flushable cleansing cloths’ (Product) in contravention of section 29(1)(k) of the ACL through the use of a ‘Made in Australia’ logo.
Section 29(1)(k) of the ACL specifically provides:
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, make a false or misleading representation as to the place of origin of goods.
Whilst the logo on the Product accurately stated that the product was made overseas, the logo had been published on its website between 28 October 2015 and 24 February 2016 as being ‘Made in Australia’. The ACCC regarded the logo as being false or misleading because the Product was not made in Australia (which had been made in Germany, South Korea and the UK).
The Federal Court noted that representations as to place of origin of particular goods “may be a significant influence to some customers on their choice of product”. The Federal Court also noted that whilst Kimberly-Clark had contravened this section of the ACL, Kimberly-Clark had cooperated with the ACCC and had acted quickly in taking remedial action. In light of this, the Court imposed a penalty of $200,000.00 (out of a maximum possible penalty of $1.1 million).
If your business is concerned about the marketing and advertising content that it seeks to publish on its products or website, it is critical that you speak to one of our expert lawyers to ensure that any material that your business proposes to publish is not misleading to avoid the potential for a contravention of the ACL.