April 29, 2014
A small but interesting advertising law development caught my eye earlier today – the Australian ACCC (Australia’s competition and consumer protection agency) took enforcement steps against a large Australian beer manufacturer (Carlton & United Breweries) for allegedly suggesting that it was small (a micro brewer). See: ACCC Acts on Beer Labelling.
According to the ACCC, Carlton had been suggesting that it’s Byron Bay Pale Lager was being brewed by a small brewer in Byron Bay (when this was not the case). The ACCC took issue with several aspects of Carlton’s beer labeling, including using the name “Byron Bay Pale Lager” and including a picture and a map of the Byron Bay region showing the location of the Byron Bay Brewing Company. In fact, Carlton’s beer was brewed some 600+ km away.
While a small case, I thought it was a good reminder that in the advertising law world impressions and pictures/graphics matter, sometimes as much (or more than) textual claims.
In this regard, in Canada the Competition Act includes specific sections that provide that the “general impression” is to be considered in determining whether advertising is false or misleading (i.e., not merely whether advertising claims are literally true) (see: misleading advertising law in Canada).
Several ways that advertising may be misleading include, as this case illustrates, images or pictures that do not correspond to the text or the literal truth (here, lighthouse and map images suggesting another and incorrect source of manufacture); or claims that, while they may be literally true (here the name of the beer – “Byron Bay Pale Lager”), create a false or misleading impression (again, in this case, regarding the origin of the beer).
Given the importance of the “general impression” test in Canada, and that images and pictures be accurate, it’s a good general practice to take a little additional time in advertising review to consider, not only whether all of the literal statements of an advertisement are true, but also whether the general impression may be misleading in some important respect. This is particularly so with respect to the accuracy of claims relating to price, performance or key qualities of a product.
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