Marketing & Advertising Law
FocusPapers in the area of Marketing & Advertising.
Australian Consumer Law - Section 86 - Prohibition on Supply and Accepting Payment during the Cooling-Off Period - Direct Selling Industry - Be Ready and Be Compliant
5 December 2011
Author: Jamie Nettleton, Partner and Cate Sendall, Senior Associate
Practice area: Marketing & Advertising
2011 has seen the introduction of the Australian Consumer Law, which contains numerous restrictions relating specifically to unsolicited consumer agreements. These restrictions have affected the way direct selling organisations conduct their businesses. The most onerous of the restrictions is contained in section 86 of the ACL which prohibits the supply of goods and services and the acceptance of payment for goods and services during the cooling-off period.
Rights and Reputation in Product Look and Feel - Full Federal Court Finds that the sale of similar looking coffee plungers is misleading and deceptive and constitutes passing off
25 August 2011
Author: Justine Munsie, Partner
Practice areas: Intellectual Property & eCommerce and Marketing & Advertising
Owners of distinctive and well known homewares and similar products can take great comfort from this month's Full Federal Court decision in Bodum v DKSH Australia Pty Limited [2011] FCAFC 98. In a case concerning the Danish design company, Bodum's flagship Chambord coffee plunger (pic below), the majority of the court confirmed that the look and feel or "get up" of such a consumer product can attain sufficient reputation, independent of its brand name and packaging, such that the sale of look-a-like or copycat products will amount to misleading and deceptive conduct or passing off unless the copies are clearly labelled so as to distinguish themselves clearly to prospective consumers.
Australia - Product Stewardship Bill - National Framework to Manage the Environmental, Health and Safety Impact of Products - Increased Compliance Requirements and Costs for Manufacturers, Importers and Distributors? - Recycling of TVs and Computers
25 May 2011
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
On 23 March 2011, the Federal Government introduced the Product Stewardship Bill (the Bill) which will establish a national framework to manage the environmental, health and safety impacts of products (such as televisions and computers).
Australia - Direct Selling Companies & Consumer Goods Suppliers - Liability for Content posted by Customers on Social Media - Federal Court - Publication - Contempt - Breach of Undertakings - Penalties - Corrective Advertising
10 March 2011
Author: Jamie Nettleton, Partner
Practice areas: Corporate, Mergers & Acquisitions, Competition, Trade Practices & Regulatory and Marketing & Advertising
Australia: Therapeutic Goods Administration (TGA) - Review to improve the transparency of the TGAb - Deadline for submissions: 11 February 2011 - Update - Dates and Locations of Public Consultations Released
10 February 2011
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
As foreshadowed in our FocusPaper of 20 January 2011 (see attached below), which concerned the TGA transparency review, the dates and locations of a series of public consultations relating to this review have now been announced.
Australia: Therapeutic Goods Administration (TGA) - Review to improve the transparency of the TGA - Deadline for submissions: 11 February 2011
20 January 2011
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
Late last year, the Parliamentary Secretary for Health and Ageing, the Hon Catherine King MP, announced a thorough review of the way in which the regulatory processes and decisions of the TGA are communicated. The aim of the review is to improve the transparency of the TGA which, it is thought, will in turn improve the public's confidence in the TGA.
Direct Selling/Multi-Level Marketing Australian Consumer Law - Application to Consumer Arrangements
23 December 2010
Author: Jamie Nettleton, Partner
Practice areas: Marketing & Advertising and Competition, Trade Practices & Regulatory
On 18 November 2010, the Australian Government released the Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1) (ACL Regulations). This forms part of the legal regime applying to the direct selling industry that will be implemented under the Australian Consumer Law (ACL). This comes into effect on various dates on and after 1 January 2011.
Health Claims in Food Advertising: the Advertising Claims Board upholds a Complaint by Fonterra against Goodman Fielder in an industry first
27 July 2010
Author: Laura Hartley, Partner
Practice area: Marketing & Advertising
The Food Standards Code (FSC) prohibits most "health claims" on labels and advertising for food. However, the statutory body responsible for enforcing the Food Standards Code in New South Wales, has rarely taken action for breach of these provisions. Nor has it given any publicly available guidance as to the extent of these provisions. Up until now, many members of the food industry have marketed the health benefits of a category of food (such as wholegrains, dairy or soy) rather than naming any health benefits of a particular brand of product of that manufacturer so as to avoid these provisions. That practice may now need to change given a recent decision of the Advertising Claims Board (ACB).
Direct Selling/Multi-Level Marketing - How will Phase 2 of the Proposed Australian Consumer Law Reforms Affect Your Business?
17 May 2010
Author: Jamie Nettleton, Partner, Laura Hartley, Partner and Andrew Dawson, Special Counsel
Practice areas: Competition, Trade Practices & Regulatory and Marketing & Advertising
Australian direct selling organisations (DSOs) are likely to be impacted significantly if the changes proposed by the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 (ACL) become law. Of particular concern are the provisions targeting door-to-door selling, telephone sales and other forms of direct selling which do not take place in a retail context.
Phase 1 of the Australian Consumer Law reform process begins!
16 April 2010
Author: Laura Hartley, Partner and Jamie Nettleton, Partner
Practice areas: Competition, Trade Practices & Regulatory and Marketing & Advertising
* New civil penalties and enforcement powers for the ACCC and ASIC significantly change the regulatory environment for Australian businesses as phase 1 of the Australian Consumer Law (ACL) reform process began 15 April 2010. * Unfair consumer contract provisions to take effect from 1 July 2010. * Phase 2 of the Australian Consumer Law reform process is expected to commence on 1 January 2011.
Direct Selling - When is a Distributor deemed an Employee - Victoria - Homecare Direct Shopping Pty Ltd v Gray [2008] VSCA 111
3 February 2010
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
In a manner similar to the New South Wales decision in Bessemer , a 2008 decision of the Victorian Court of Appeal relating to a workers compensation claim made by a distributor of a direct selling company raises important issues that direct selling companies need to consider when drafting distribution agreements. This decision suggests that certain distributors will be deemed as employees for the purposes of Victorian workers compensation law.
Direct Selling - When Is A Distributor A Worker - NSW
21 December 2009
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
Is a person injured at a direct selling company's premises deemed a 'worker' for workers compensation purposes? The 2005 NSW Court of Appeal decision in Bessemer has significant implications for direct selling companies and workers compensation insurers as it may deem distributors/consultants as 'workers' for workers compensation purposes.
Tips for Preparing Advertising Campaigns - Legal Compliance
21 December 2009
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
In preparing advertising campaigns for market, often what seems like a good idea for an advertising campaign may be a breach of the Trade Practices Act 1974 (Cth) (the "Act"). Knowing when to recognise potential trade practices issues is the first step in avoiding breaches of the Act.
Food Standards Code Change: All Bread to Contain Folic Acid
21 September 2009
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
From 13 September 2009, all wheat flour for making bread (except organic) in Australia must contain added folic acid.
Food Standards Code Change: Cyanide Levels in Vege Chips
17 September 2009
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
Amendments to Standard 1.4.1 of the FSANZ Code has meant that levels of hydrocyanic acid (cyanide) will now be regulated in vegetable crackers/chips (cassava-based chips). Suppliers will need to comply with the amended Standard or face fines of up to $275,000.