Many products make some pretty absurd claims about what they can deliver; whether it be about your weight, your wrinkles, your teeth colour, how effectively they clean your bathrooms, etc. While most of the time we shake our head in disappointment and vow never to waste our money on it again, it was clearly effective advertising. However, when misleading or deceptive advertising actually causes you damage from using a product that does not deliver what it has promised to, you might have a case to sue the offending company for false advertising.
What is misleading advertising?
When determining if an advertisement was misleading or deceptive, the Court will look at whether a reasonable person or the intended audience was made to, or would likely have been misled or deceived. This applies to advertising, a product packaging and any information provided to you by staff or online shopping services. It also applies to any statements made by businesses in the media or online, such as testimonials on their websites or social media pages.
This type of conduct can usually be categorised into the following categories:
- Misleading advertising: giving the audience a misleading overall impression about price value or quality.
- Disclaimers and fine print: all the important facts about goods or services are hidden or contradict the main offer.
- Promises, opinions and predictions: knowingly sharing misleading or deceptive information.
- Silence: keeping silence about important information.
Minor and major ad networks and publishing platforms have started cracking down on deceptive content as well. However, as efforts to eradicate misleading advertisements increase, there are new types being developed at the same time. The Australian Consumer Law (ACL) currently works to help safeguard consumers from misleading and deceptive advertising.
An example is when a large electronics store advertises that they are having a 20% store-wide sale on all products. They include a hidden disclaimer in the small print that customers could only claim the discount after they had bought $200 worth of products. This is considered misleading because it is hiding the disclaimer and fine print.
What is not considered misleading advertising?
You might question an advertising slogan – is this really ‘the best steak in Australia?’. Despite this claim being subjective, it is what’s considered to be puffery. Puffery is a subjective claim or promotional statement that a ‘reasonable person’ wouldn’t take literally. The advertisement is clearly over exaggerated and not typically taken seriously. This claim, while potentially false, is not going to cause damage to an individual, therefore not considered misleading conduct.
How do I make a complaint about a misleading advertisement?
Consumer complaints about misleading or deceptive advertising can be directed to the following agencies which jointly administer and enforce the Australian Consumer Law (ACL):
- the Australian Competition and Consumer Commission (ACCC)
- your State/Territory consumer protection agency
If you have experienced an example of misleading or deceptive conduct or would like to know more, the advice of a commercial lawyer may be helpful.