A producer of diet pills has used the image of celebrity chef, Julie Goodwin, in pursuit of increasing sales. It has come to light that the celebrity chef is now considering legal action.
The company, Garcinia Total, reappropriated images of the former MasterChef winner from a recent piece about her in the Australian Women’s Weekly, telling of her dramatic 20 kilogram weight loss. The advertisements suggested both that Ms Goodwin’s weight loss was caused by the use of Garcinia Total’s products, and that she endorsed the use of those products.
Julie Goodwin was made aware of the use of her image when screenshots of links to the product were sent to her.
As might be expected, this caused Julie Goodwin a great deal of concern and, of course, gives rise to a right for her to pursue legal proceedings against Garcinia Total.
So where is the line when it comes to advertising and endorsements? And what are the consequences for crossing that line?
This article explains the legal actions which might be pursued in relation to unsubstantiated advertising, and the penalties that might be imposed for engaging in such behaviour. It also provides some questions for you to think about when devising your marketing plan, so that you can avoid any trouble in the future.
Misleading and Deceptive Conduct
The Australian Consumer Law (ACL) has a number of important purposes, perhaps the most important being:
(a) protecting consumers from unconscionable businesspeople; and
(b) regulating the behaviour of Australian businesses.
Under the section 18 of the ACL, it is illegal, in trade or commerce, to engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. This, like many other legal standards, is rather vague, leaving the question open as to exactly what kind of conduct will break the law.
Garcinia Total’s use of Julie Goodwin’s image in its advertisements is an example of the type of conduct, which might be considered to be misleading. Specifically, Garcinia Total’s insinuations that Julie Goodwin consented to its advertisements, and that she endorses its products, are likely to be misleading to consumers because there is nothing to substantiate their truth. In fact, Julie Goodwin later contradicted Garcinia Total’s advertisement in a Facebook post, saying that its products are the ‘very last thing [she] would ever endorse’.
Making statements of an unsubstantiated nature, for the purposes of marketing or advertising could land you in legal hot water. While there may at times be a fine line between selling a product to consumers and making misleading statements, it is important to stay on the right side of the law.
To this end, a general rule of thumb should be, that if you make any statement relating to the products you sell, you must be able to prove the truth of that statement. Or, as in the case of Julie Goodwin, if you wish to sell your product via endorsement, it is important that you make an agreement with the person endorsing your product before the advertisements are shown to the public.
Failure to do so could lead to you paying damages to people entirely unknown to you, as well as fines and injunctions.
The tort of Passing Off is a relic of the common law set forth in the 1800’s, which is still very much alive today. It protects people and businesses from the similar behaviours to those mentioned above.
Passing Off is based on the principle that nobody should represent that their goods or services are those of another. So, instead of protecting consumers like the ACL, Passing Off protects the goodwill of businesses.
So, if a business pretends that it is selling the products of another business, or that it is operating under the brand of another business, it may have committed Passing Off.
Passing Off is another example of the type of legal action, which might be brought against businesses that use unsubstantiated comments in order to market or advertise a product. Passing off a business or product as another business or product, could result in hefty court orders to pay damages.
Avoiding Unsubstantiated Comments
When devising a marketing or advertising scheme, it can be tempting to make elaborate claims, in order to generate interest in a product. However, in order to avoid crossing the boundary from the elaborate to the misleading, it is important to keep the following questions in mind:
- Can you prove the statement that you have made? This means that you must be able to substantiate 100% of the statement. For example, if you make a statement such as ‘This jacket is made of 100% leather’, you will need to have evidence of the product being 100% leather. A 98% leather composite will not be enough!
- Did you seek the agreement of any person who you have mentioned in your advertisement? Again, this means that you must ask the relevant person to agree to the specific type of advertisement that you are running. For example, Garcinia Total should have asked Julie Goodwin whether it was acceptable to use her image, and to represent that she endorsed its products. Merely asking Ms Goodwin whether she liked the product would not suffice.
The thing to remember is that, when it comes to trade, all words have consequences. In advertising, we all hope that the consequence of our words result in increased sales. However, it is important to be able to back up all of your statements with facts. Failure to do so may land you in legal trouble very quickly, as people continue to increase their online presences. As Garcinia Total found out, being caught out for making unsubstantiated comments is just a screen shot away.