Monday, 29 March 2010

The Baby Experts: Round 3

Last year, Johnson & Johnson (Pty) Ltd lodged a competitor complaint against Tiger Brands (Pty) Ltd’s Elizabeth Anne’s by Purity advertisement which contained the wording “Elizabeth Anne’s by Purity. The Baby Experts”. The complaint was, in essence, that the word “the” (in “The Baby Experts”) implied that Purity is the only expert in relation to baby products which, according to Johnson & Johnson, it could not claim. In response, Tiger Brands submitted that the statement is not one of fact, but rather an opinion, puffery or a value judgment that does not require substantiation and is not likely to mislead the consumer. In considering whether the statement was an opinion, the Directorate relied on a 1995 ruling in MTN/Vodacom where it was remarked that where a statement is “disassociated from and not amplified in the context or the body of the advertisement”, it would be regarded by the consumer as an opinion rather than a statement of fact. The Directorate felt that this approach applied in this case and dismissed the complaint.

Johnson & Johnson noted an appeal to the Advertising Industry Tribunal, where the majority ruled that the statement is indeed one of fact and does require substantiation – which had not been provided. It held that the claim was misleading and that Tiger Brands was unfairly trading on the goodwill established by the Purity brand which is a leader in baby food products. The appeal was upheld.

In an appeal against the majority ruling of the Advertising Industry Tribunal, Tiger Brands approached the Final Appeal Committee. The Committee considered the critical issues of whether the advertisement, read as a whole, would be interpreted to mean the Purity is an expert in baby care products and whether the statement was one of fact or an expression of opinion.

Tiger Brands pointed out that Purity has expertise in the area of baby nutrition and Elizabeth Anne’s has expertise in baby care products, accordingly the combination of the expertise of the brands (both in its stable) allows them to claim that they are experts in both fields. The Committee was not impressed with this argument, pointing out that had the wording been “Elizabeth Anne’s and Purity”, rather than “Elizabeth Anne’s by Purity”, it may have some justification in the claim. As it stands, Purity is being promoted as the expert and not Elizabeth Anne’s. It was argued by Johnson & Johnson that the goodwill of Elizabeth Anne’s would entice consumers to purchase the products. The Committee found that Purity is claiming a wider sphere of expertise than it has and that the claim is misleading to the hypothetical reasonable reader. The Committee agreed with the decision of the Advertising Industry Tribunal and dismissed the appeal.

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