Tag Archives: misleading advertising

Can the ACCC ‘target the source’ of misleading labelling?

The Conversation

Michael Vagg, Barwon Health

Regular readers of this column will know that I’ve been less than complimentary about the effectiveness of the Therapeutic Goods Administration (TGA) in its efforts to regulate advertising of non-prescription products.

I am therefore delighted to give some credit when good news breaks. The Australian Consumer and Competition Commission (ACCC) has succeeded in a Federal Court action to have misleading packaging of Nurofen products banned.

The manufacturer Reckitt Benckiser (Australia) Pty Ltd has three months to remove all its misleadingly packaged Nurofen products from shelves. This outcome has taken five years from the time CHOICE magazine awarded Nurofen a Shonky Award for the labelling. The TGA first ordered them to withdraw the claim in 2011.

Following a final TGA review in 2012 which backed up the original finding, Reckitt Benckiser effectively dared the TGA to force them to change their ways. It was announced in March this year that following the failure of the TGA to get an outcome, the ACCC would pursue it using their consumer protection powers.

Today’s outcome is entirely predictable, from a scientific point of view. There was never any merit to the claim that ibuprofen could in any way be said to “go straight to the site of pain” any more than a sprinkler system in a high-rise building goes straight to the cause of a fire.

So why didn’t Reckitt Benckiser change their branding when ordered to?

My guess (and I emphasise this is speculation) is that they understood that there has never been a prosecution by TGA under the Therapeutic Goods Act 1989 because the derisory penalties aren’t worth paying good public money to enforce.

Once Reckitt Benckiser have paid their lawyers and costs, I’m guessing they will be well in front after selling the offending products for four years longer than they were supposed to. They have also had four extra years to gather marketing data and optimise their plan for rebranding.

It was inevitable that they were going to have to change their indefensible labelling, but why jump until you’re about to be savagely pushed?

Another example of the contempt in which the TGA is held was in 2013 when Swisse vitamins had an “appetite supressant” product banned by TGA only to re-register the exact same pills as a “hunger control” product. They only made the change after the TGA threw everything they had at them. Yet it was as easy as that to shrug off all the bluster the regulator could work up.

The example Reckitt Benckiser has set in defending its misleading and unfair consumer strategy with Nurofen will be noted by other companies, and the lesson will not be lost on them if they are next in the ACCC’s sights. The tactic is to fight in the courts for as long as the ACCC has the will to spend taxpayers’ money in order to buy time to plan the exit strategy and get a few more months or years of benefit from the dodgy claims. Milk the cash cow until the law closes in, then cop it sweet and move on.

Australian consumers will continue to be ripped off and fleeced as long as we are represented by a TGA which has not been given the tools to do its job. Neither side of politics is very interested in legislative change because the big players are just fine with it how it is. The real problem is that the same legislation that makes the TGA a tough-but-fair sheriff as far as prescription drugs and devices go also renders it flabby and supine enough to be unable to seriously hamper the sales targets of the non-prescription sector.

The foxes of the health-care industry may not be directly in charge of the hen house, but no holes in the wire are getting fixed without them giving the nod.

The ConversationMichael Vagg, Clinical Senior Lecturer at Deakin University School of Medicine & Pain Specialist, Barwon Health

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

 

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When ‘hand crafted’ is really just crafty marketing

The Conversation

Katherine Wilson, Swinburne University of Technology

In their attempts to cash in on peak hipster, fast-food giants are passing off assembly-line products as small scale, bespoke creations that carry an aura of moral authority.

Six months ago, McDonald’s opened a café in Sydney’s inner-West, where chambray-shirted baristas serve single-origin coffee alongside quinoa salads on wooden boards. The café is called The Corner, but The Guardian soon described it as: “McDonald’s disguised as a hipster café”.

And to customers worldwide, McDonald’s launched its “artisan grilled chicken”, its “artisan roll” and other artisan-manque products. Domino’s released “Artisan Pizza”, and PepsiCo released Kaleb’s Cola, a “craft soda” in a glass bottle bearing the notation, “Honor in Craft”. Nowhere on the bottle is mention of the multinational behind it.

In Australian Coles supermarkets, the Always Fresh brand is promoting its “Artisan Collection” lines as “authentic, carefully-crafted”. Its biscuits and preserves are “hand-crafted”; its crackers are “thoughtfully baked”. In the drinks isle Cascade’s “crafted” range of fizzy drinks includes (inexplicably) a “crafted for Australians” plain soda water.

Hand made or machine made? Kim Kyung Hoon/Reuters

These descriptors are lies, because mass-producers simply can’t make “craft” or “artisanal” products. These words refer to autonomous human-scale production that’s too mindfully- and bodily-involved for the assembly-line. To a craftperson, conception and physical production are inseparable, and their relationship with their craft — be it breadmaking, songwriting or neurosurgery — is somatic.

Division of labour completely wipes “crafting” from the fabrication process. Craft involves risk and unpredictability; manufacturing, on the other hand, involves predictable and uniform outcomes.

So consider the significance of McDonald’s’ current “How Very Un-McDonald’s” and “Not So Fast Food” campaigns. These campaigns invite us to custom-select ingredients on a touch-screen and enjoy table-service by — who knew? — a person. Faced with a slump in profits, the fast-food giant is experimenting with ways to shed brand-staleness and seduce a 20s-to-30s demographic that regards McDonald’s as distinctly uncool.

But this seems less a gesture towards slow food values and more an admission that the brand and all it represents has become déclassé. When they trade on artisanal notions of authenticity, industrial food giants deny their own, which lies in cheap, standard products manufactured with alienated labour and dispersed supply chains. You can’t be an authentic Tim-Tam if you were “thoughtfully crafted” from seasonal local ingredients.

Spot the difference

Corporate craft-washing campaigns may deceive some, but their mawkish descriptors betray them as sops. McDonald’s “artisan” chicken contains “pantry seasonings” (distinct from industrial flavours) and “100% chicken” (distinct from who-knows-what). Pepsi’s craft soda has “quality ingredients”, no less, devised after “months talking and tasting” (more artisanal than “focus-grouping”).

Genuine craft producers aren’t inclined to spruik these ways, because their customers have the culinary literacy to discern a local sourdough from an industrial soda bread.

In his 2014 book, “The Language of Food”, Stanford University professor Dan Jurafsky observes that good quality food labels and menus tend to be short on adjectives. Marketers of industrial food, on the other hand, oversell with such descriptors as “real”, “artisan”, “quality”, “authentic” and “passionately-crafted”.

US brewing giant MillerCoors is facing a class action law suit for passing off its Blue Moon brand as craft beer. Treasure/Flickr, CC BY

But a backlash is mounting. Following recent complaints against the craft claims of Byron Bay Beer, ACCC Chairman Rod Sims said:

“We judged that any reasonable consumer would think that it was brewed in Byron Bay by a small Byron Bay brewing company.”

But the beer “was a actually brewed by Carlton and United Brewery out of its large Warnervale brewery.”

David Hollier, president of the Australian Real Craft Brewers Association, said craft beer drinkers believe they are “supporting authentic small, independent… local family-owned breweries. The big two brewers have capitalised on that”.

But CUB was fined A$20,400, and similar cases are emerging overseas. Californian man Evan Parent recently sued brewing giant MillerCoors for claiming its Blue Moon beer is “artfully crafted”. His lawyer Jim Treglio told reporters:

“People think they’re buying craft beer and they’re actually buying crafty marketing.”

Even insiders are rebelling against such marketing. Last year, the ACCC received “industry intelligence” that Saskia Beer’s “Black Pig” products contained white pig meat. Heritage black pig breeds can be more free-ranging than white pigs, as they are less susceptible to sunburn. The company was ordered to undergo compliance training and publish a corrective notice.

Similarly, Pirovic Enterprises was fined A$300,000 for claiming its eggs were free-range. “Although there were no strict legal definitions of free-range, the court was able to base its findings on consumers’ expectations about what that particular form of farming should involve”, said Associate Professor Jeannie Paterson from the University of Melbourne’s Law School.

The same principle, she says, was applied when Coles was fined A$2.5 million over “freshly baked” bread claims, when the bread was first par-baked in Ireland.

Over there, the Food Safety Authority is reportedly clamping down on “artisan”, “traditional” and “farmhouse” claims, warning that these should only describe products made “in limited quantities by skilled craftspeople” at a “micro-enterprise”, and ingredients should be local where possible. Last week, the Authority ordered McDonald’s to remove artisan claims. This is a regulatory trend moving across Europe and the US, and in Australia, the ACCC is also devising guidelines.

Artisan-posturing by industrial producers isn’t just a matter of regulatory transgressions. Industrial food giants who “craft-wash”, or use idioms of craft while trashing its essential values, are actively obscuring a set of political issues. Ethical consumers are often well-heeled, for sure, but their deep pockets attend to a deeper commitment to small enterprise, localism, fair trade, ethical supply chains, seasonal produce, farm animal welfare, workers’ freedoms and low environmental impact.

Australian consumer law prohibiting deceptive conduct “does not just apply to deliberate lies,” says Paterson. “It also covers conduct that creates a misleading impression by manipulating common community understandings.” So as artisanal deceptions continue to mount, so, too, do the legal precedents for a foodie-pundit backlash.

The ConversationKatherine Wilson, PhD Candidate, journalist, Swinburne University of Technology

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.
 

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