Monday, 7 June 2010

Tiger and Johnson - Back in the Ring

In a dispute between Johnson & Johnson and Tiger Brands over the latter’s claim “Purity. The Baby Experts” (previously reported on here), it was ruled by the Final Appeal Committee (FAC) that the claim was to be removed. In May, a breach allegation was raised by Johnson & Johnson and upheld regarding point of sale material and a television commercial, but no sanctions were imposed.

A few days later a further breach allegation was raised by Johnson & Johnson in light of Tiger’s extensive use of the offending claim at the Baby Expo at the Coca Cola Dome in Johannesburg on products, promotional hampers, hand-outs and the stand itself. It was further submitted that the claim was included in three print advertisements in a June 2010 issue of a baby magazine. Johnson & Johnson called for “the harshest sanctions” to be imposed on Tiger, including publishing an apology with a summarised version of the FAC ruling.

In response, Tiger requested that the Directorate appreciate the magnitude of the task of complying with the FAC ruling. It stated that it was fast tracking all changes and pulling out all the stops to ensure compliance. It pointed out that the offending claim was used on more than 40 products in its range, in addition to all the advertising material.

The Directorate dismissed the complaint regarding product packaging as Tiger had until 24 June 2010 (three months from the 24 March 2010 ruling) to comply. Despite the packaging displayed at the expo being new, it was still displayed prior to the deadline and could therefore not be in breach of the FAC ruling. The complaint regarding the actual stand at the expo and promotional hampers and hand-outs that were distributed was, however, upheld. Tiger attempted to raise the defence that it had outsourced the expo work to a promotional company and the use of the claim was an inadvertent oversight, but this did not impress the Directorate, which noted that since Tiger was now able to correct the error by placing a sticker over the offending claims, there was no reason for it not to have been able to do so prior to the expo.

The breach allegation was also upheld regarding the magazine advertisements. The print deadline for the magazine fell shortly after the date of the ruling and Tiger submitted that it did not have sufficient time to determine what amendments it should make to the advertisements. The Directorate rejected this defence as it felt that compliance with the FAC ruling would have involved simply withdrawing the advertisements, rather than replacing them.

In considering what sanctions to impose, the Directorate noted the earlier breach and that it had not resulted in sanctions but rather merely a stern warning. In light of this being the second breach and that Tiger failed to withdraw the offending advertising simply because it could not replace it, the Directorate felt that sanctions were appropriate. It directed Tiger to publish a summarised version of the ruling (to be written by the Directorate) in appropriate media, at their own cost.

No comments: