Advertising puffery or misleading conduct?

By Norton Rose

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The recent case of Bembridge v Just Spectacles Pty Ltd is another example of the dangers of using what some might call “advertising puffery”. In this case “advertising puffery” was described as “flamboyant statements, hyperbole, exaggerated rhetoric which would not reasonably be understood to be literally true”. Advertising so characterised will not amount to false or misleading conduct under the Trade Practices Act or State /Territories Fair Trading Acts.

However the puffery “defence” failed in the Just Spectacles case. A poster in a Perth shopping centre promoting a spectacles shop within the centre contained the words “Double for Nothing” and “Buy one pair – get another pair free”. At the bottom of the poster were the words, in much smaller print, “Conditions Apply”. There was no asterisk next to the promotional grab indicating that the offer was qualified by conditions.

The Supreme Court held that the poster was false or misleading. While there may have been “some element of hyberbole” involved it was evident that when the words “double for nothing” were read with the words “buy one pair – get another pair free” – they together constituted a clear offer. There was “no element of puffery” in the representation. The qualification implied by the words “conditions apply” was not effective in all the circumstances applying to the display of the poster to convey to the ordinary reader that the offer which would otherwise be considered by conditions and so would not be generally available to any customer:

The nature of the poster in its entire context implies the conclusion that, in truth, the words “conditions apply” were not readily discernable in the circumstances in which they were displayed, in a shopping mall through which people moved from shop to shop, where there may be crowds, where people are not taking the time to carefully peruse and consider the whole of any advertising material and where the ordinary shopper, who is contemplating the purchase of spectacles, would be inclined, on the strength of the advertisement, to make a quick decision to go to the respondent’s shop and investigate further. That was, after all, the object of the exercise. In short, the respondent took insufficient measures to clearly bring the qualification to the attention of the class of reader who would be exposed to the poster.

The case contains little in the way of new principles, nevertheless provides yet another warning of the need for truth and caution in advertising. This article was written by Deacons Special Counsel Prof Andrew Terry.

14/09/2007

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Advertising puffery or misleading conduct?

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