Kimberley Clark Australia Pty Ltd v Carter Holt Harvey Tissue Australia Ltd
[1997] FCA 191
•27 MARCH 1997
CATCHWORDS
Trade Practices - Misleading or Deceptive Conduct - whether television advertisement for "hypo‑allergenic" toilet paper is misleading or deceptive - whether particular toilet paper is free of inks, dyes and perfumes - whether misleading or deceptive to use the term "hypo‑allergenic" in combination with the term "safe" in the sense that "safe" would tend to reinforce the public's alleged misunderstanding of "hypo‑allergenic" as free allergens - whether misleading or deceptive to suggest that use of the respondent's product might reduce itching - whether phrase "your toilet paper is irritating you" conveys the representation that toilet paper can be the initial cause of irritation - whether advertisement suggests that other premium toilet tissue could not help to reduce irritation - whether advertisement misleading or deceptive on the basis that it conveys a representation that "hypo‑allergenic" paper is for therapeutic use and is a therapeutic good which is registered, listed or exempt or the subject of an approval under the Therapeutic Goods Act 1989 (Cth)
Trade Practices Act 1974, s 52
Therapeutic Goods Act 1989 (Cth), s 3(1), s 20
Therapeutic Goods Regulations, r 6
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1
Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165
Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 33 FLR 307
Neilsen v Hempston (1986) 65 ALR 302
Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601
Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233
Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428
Trade Practices Commission v Telstra Corporation Ltd (1993) ATPR 41, 445
Rhone‑Poulenc Agrochimie v UIM Chemical Services Pty Ltd (1986) 12 FCR 477
KIMBERLEY CLARK AUSTRALIA PTY LIMITED v CARTER HOLT HARVEY TISSUE AUSTRALIA LIMITED
No. NG 95 of 1997
CORAM:Lehane J
PLACE:Sydney
DATE:27 March 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG 95 of 1997
BETWEEN:KIMBERLEY CLARK AUSTRALIA
PTY LIMITED
(A.C.N. 000 032 333)
Applicant
AND:CARTER HOLT HARVEY TISSUE
AUSTRALIA LIMITED
(A.C.N. 004 191 324)
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:27 March 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG 95 of 1997
BETWEEN:KIMBERLEY CLARK AUSTRALIA
PTY LIMITED
(A.C.N. 000 032 333)
Applicant
AND:CARTER HOLT HARVEY TISSUE
AUSTRALIA LIMITED
(A.C.N. 004 191 324)
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:27 March 1997
REASONS FOR JUDGMENT
LEHANE J:
Background: market information
The applicant and the respondent both manufacture toilet paper. The market for toilet paper in Australia is divided into three distinct segments: premium products, typically sold by retail for about 74¢ per roll; economy products, typically sold by retail for about 53¢ per roll; and generic products, typically sold by retail for 43¢ per roll. The applicant and the respondent manufacture, between them, all the premium toilet paper sold in Australia: premium toilet paper represents about 51.9% by value and 36.7% by volume of total sales of toilet paper and, within the premium segment of the market, the
applicant's "Kleenex" product has a market share of about 44% and the respondent's "Sorbent" brand the remaining 56%.
Kleenex premium toilet paper comes in three varieties: they were described as white, prints on white and prints on pastel. Sorbent premium paper comes in three similar varieties. Inks or dyes, or both, are present in the printed toilet paper. The white paper varieties do not contain inks or dyes, except that in some cases contamination may occur by reason of the presence of a brand name stamped on the cardboard core. Except for the particular Sorbent product with which this case is concerned, none of the premium toilet paper is free of perfume: a quantity of perfume is sprayed on the cardboard core of each roll. Although the evidence before me was directed principally to the premium segment of the market in which the parties compete, there are products in the other segments which are said to be free of inks, dyes and perfumes.
In thus briefly describing the market I have relied principally on the affidavit evidence of Ms Deborah Bauer, Marketing Manager of the applicant, which was not (as to her description of the market) contradicted or challenged.
"Sorbent Hypo‑Allergenic": the television advertisement
The respondent manufactures a product which it calls "Sorbent Hypo‑Allergenic". That product is sold for the same price as what I may call ordinary Sorbent white toilet paper; it differs from ordinary Sorbent white toilet paper in that the brand name "Sorbent" is not stamped on the cardboard core, no perfume is added and steps are taken in the course of the manufacturing process to ensure that the product will not be contaminated by the perfume applied to the core of ordinary Sorbent white.
The applicant does not at present manufacture or sell, in Australia, a product corresponding to Sorbent Hypo‑Allergenic; its parent corporation does manufacture and sell such a product in the United States.
Since about 4 February 1997 the respondent has advertised Sorbent Hypo‑Allergenic on television throughout Australia. The advertisement shows what seems to be a city street, in which there are a number of pedestrians. Music accompanies the scene. The camera then focuses on six people of various ages, some male and others female, each of whom more or less discreetly touches or scratches the central area of his or her bottom. The viewer is then shown a person dressed in a bear suit doing the same thing, as an announcer says "if your toilet paper is irritating you, you need" (the scene then changes to two successive images of Sorbent toilet paper) "new Sorbent Hypo‑Allergenic toilet tissue, free of inks, dyes and perfumes". A package of six rolls of Sorbent Hypo‑Allergenic paper next appears, on which the text "thick, soft and safe for sensitive skins" can be seen; the announcer says "new Sorbent Hypo‑Allergenic is thick, soft and safe for sensitive skin". The advertisement concludes with a scene, accompanied by music, of a cyclist, clad in conventional tight‑fitting garments, scratching rather less discreetly and more vigorously than the pedestrians.
The applicant's claims
The applicant claims that the respondent, by publishing that advertisement, has engaged, and continues to engage, in conduct, in trade or commerce, which is misleading or deceptive and, consequently, contravenes s 52 of the Trade Practices Act 1974 (the Act). By its further amended application the applicant seeks injunctions restraining the further publication of the advertisement and the making of certain representations which, the applicant says, are conveyed by the advertisement; the applicant also seeks a declaration that the respondent has, by publishing the advertisement, infringed s 52. Additionally, the applicant seeks damages, but the proceedings before me, an expedited final hearing of the claims for injunctive relief, were not concerned with that relief.
The issues between the parties were defined in informal pleadings. The relevant claims are set out in the following paragraphs of the applicant's amended points of claim:
6.The commercial contains or conveys the following representations:
(1)that toilet tissue, other than "Sorbent Hypo‑Allergenic" toilet tissue, causes itching of the bottom;
(2)that changing toilet tissue to "Sorbent Hypo‑Allergenic" toilet tissue will relieve itching of the bottom;
(3)that, unlike other toilet tissue, "Sorbent Hypo‑Allergenic" toilet tissue does not cause itching of or allergic reaction to the bottom.
(7)Each of the representations set out in paragraph 6 hereof is false in that:
(1)no premium quality toilet tissue, except in the rarest of cases, causes itching of the bottom;
(2)changing toilet tissue from another brand of premium quality toilet tissue to "Sorbent Hypo‑Allergenic" toilet tissue can have no effect in relieving itching of the bottom;
(3)allergic reactions to other premium quality toilet tissue occur only in the rarest of cases.
(8)Further, and in the alternative, the commercial contains or conveys the representation that "Sorbent Hypo‑Allergenic" toilet tissue is for therapeutic use as defined in section 3 of the Therapeutic Goods Act, 1989 (Commonwealth), that is to say that it is for use in or in connection with preventing, curing or alleviating a disease or ailment, or influencing, inhibiting or modifying a physiological process, in persons.
(9)The commercial contains or conveys the further representation that "Sorbent Hypo‑Allergenic" toilet tissues are therapeutic goods which are registered, listed or exempt goods under the provisions of the Therapeutic Goods Act, 1989 or goods the subject of an approval under section 19 or 19A of that Act.
(10)The representation set out in paragraph 9 hereof is false in that "Sorbent Hypo‑Allergenic" toilet tissues are not registered, listed or exempt goods under the provisions of the Therapeutic Goods Act, 1989 and are not goods the subject of an approval under sections 19 or 19A of that Act.
By reason of those matters, the applicant alleges that the respondent has breached, and continues to breach, s 52 and that as a result the applicant will suffer damage because consumers will be induced by the advertisement to purchase Sorbent Hypo‑Allergenic at the expense of the applicant's product. The respondent, in its defence, does not admit paragraph 6 of the points of claim and denies paragraphs 7 to 10 inclusive.
Freedom from inks, dyes and perfumes
The points of claim do not directly allege that the statement, in the advertisement, that Sorbent Hypo‑Allergenic is "free of inks, dyes and perfumes" is false. Senior counsel for the applicant, however, closely cross‑examined Mr M J Shaw, the respondent's Quality Manager, about aspects of the respondent's production process which (it was suggested) might result in a degree of contamination of Sorbent Hypo‑Allergenic paper with perfume used in the manufacture of other toilet paper.
In the course of the cross‑examination, senior counsel obtained from Mr Shaw an answer that, to the extent that off‑cuts (said by Mr Shaw to be relatively few in number) from rolls of ordinary Sorbent White were put into the slurry, he could not "warrant" that the hypo‑allergenic product contained no perfume.
However, in addition to precautions taken in the course of the manufacturing process, Mr Shaw's evidence was that the product was tested for the presence of perfume by "sniffing" performed by employees of the respondent under Mr Shaw's supervision. In a second round of re‑examination Mr Shaw said that he could be confident of the absence of perfume from the finished product because the "sniff test" had never detected its presence. Senior counsel for the applicant read affidavit evidence of a perfumer who, while he did not dispute the appropriateness of a sniff test, said nevertheless that one's ability to detect a particular perfume diminishes with the length of time during which one is exposed to it - "the longer you sniff, the less you smell" - so that if the test were conducted by workers on the production line who were exposed to perfume (in the manufacture of products other than Sorbent Hypo‑Allergenic) the test would not be reliable. While I accept that evidence, it has little weight, in my view, in relation to the respondent's processes by reason of the evidence given by Mr Shaw (which I accept also)
as to the persons by whom, and the manner in which, the tests are carried out. There is force also in the point made by senior counsel for the respondent, that his client's product is readily available in the market and that if it were possible to establish that it was not free of perfume the applicant had not lacked the opportunity to do so. In short, I do not think there is a proper basis for me to hold, on the evidence, that the claim that Sorbent Hypo‑Allergenic is free from inks, dyes and perfumes is untrue.
Substance of applicant's case
But the main burden of the applicant's case, in paras 6 and 7 of the amended points of claim, is that the advertisement claims that toilet paper, other than Sorbent Hypo‑Allergenic, causes itching; that if one changes to Sorbent Hypo‑Allergenic paper, itching will be relieved; and that unlike other toilet paper, Sorbent Hypo‑Allergenic does not cause itching or an allergic reaction. Each of those representations is said to be false to the extent that it draws, or suggests, a distinction between Sorbent Hypo‑Allergenic and other premium toilet tissue. (It may be mentioned, in passing, that the premium category includes paper in which inks and dyes are present, as well as perfume. Virtually no attention was directed to the properties of, or the effect of using, paper of that sort: both parties appeared to proceed on the basis that for these purposes "premium quality toilet tissue" meant premium white toilet paper, particularly, of course, the applicant's Kleenex white paper).
Expert evidence
The parties are by no means at one on the effect of the message which the advertisement is likely to convey to those who see it. I shall return to that topic. There can, however, be no doubt that the advertisement suggests that the people shown scratching are to be taken as suffering from at least a mild irritation of the perianal area (giving rise to the symptom of itching, known as pruritus ani), that toilet paper or its use may play a part in the initiation, or possibly the continuance or exacerbation, of that condition and that a change to new Sorbent Hypo‑Allergenic paper, which is free of inks, dyes and perfumes, and is thick, soft and safe for sensitive skin, may offer some assistance or relief. I had the benefit of expert evidence from a number of medical specialists in relation to various matters arising from the advertisement: in addition to Dr D B Douglas, a consultant in the area of preventative medicine who from time to time provides consulting services to the applicant, the applicant called two specialist dermatologists, Dr R B Watchorn and Dr D S Nurse. The respondent called Dr A A Eyers, a colorectal surgeon and Dr J Weiner a consultant physician specialising in allergy and clinical immunology, particularly in the sub‑speciality of clinical allergy. On some matters the experts were at variance, though the differences were, I think, more as to matters of degree and detail than matters of principle. Much was common ground: sufficient, in my view, to enable me confidently to make the following findings:
lPerianal irritation (manifesting sometimes in an itch giving rise to a desire to scratch) can arise from a number of causes, some relatively trivial others serious.
It is unnecessary to list exhaustively the possible causes referred to in the evidence: it is sufficient to note that they include worms (particularly in children) haemorrhoids, inadequate cleanliness, irritation caused by tightly fitting clothes or by the application of chemicals and allergic contact dermatitis in people who are sensitised to various substances; more seriously, the symptoms can be due, for example, to diabetes mellitus or to certain neoplasms.
lVery occasionally perianal irritation may be the first presenting symptom of a serious underlying condition; usually, however, that will not be the case: it will be a later symptom, or one of a number.
lA number of people in the community are sensitised to perfumes or fragrances of various kinds and, being sensitised, may suffer an allergic reaction if exposed even briefly to the particular perfume to which they are sensitised, and even to a small quantity of it. (It may be interpolated that evidence of complaints received by the applicant about its products indicates that a number of people in the community recognise, or believe, that they are sensitive to perfumes).
lExperience in practice, however, of perianal irritation resulting from the use of perfumed toilet paper is very rare: Dr Watchorn, for example, had dealt with only one confirmed instance in many years of clinical practice. Reports in the medical literature of such cases are also extremely rare: apart from reports relating to the use of "pre‑moistened" toilet paper, the researches of the various experts revealed only one such report, contained in a letter from three Chicago doctors published Journal of the American Medical Association of 14 July 1969, and the evidence cited in the letter is anecdotal rather than such as scientifically to establish causation. Reports of allergic reactions to "pre‑moistened" toilet paper are of little significance for two reasons: one is that such paper contains allergens not present in ordinary dry toilet paper; and the presence of moisture increases the prospect of a reaction in a person already sensitised to a substance contained in the paper.
lMechanical friction, caused by excessive rubbing with paper, can cause perianal irritation; more particularly, if irritation already exists rubbing with paper can exacerbate or at least prolong it. Meticulous cleanliness is important in treating perianal irritation; washing, rather than the use of toilet paper, is desirable at least in serious cases; but where washing is impossible, or where the irritation is not severe, it is helpful to use soft white toilet paper which is relatively free of allergens (even Dr Watchorn, who insisted that washing was desirable and, with proper patient education, possible in virtually every case, was prepared to accept that, as a - somewhat distant - second best).
lThere is no substance which is a proven non‑allergen: that is, which has been proven never to cause allergic reactions; there is no toilet paper which is entirely free of known allergens.
lA great number of people in the community - perhaps, as Dr Eyers put it, most of the population - have had, at some time and often only in a very mild form, the condition afflicting those in the advertisement shown scratching themselves. Very few out of that large number consult specialists. Those who do will include some of those most seriously affected but will not be limited to that class: much depends on patients' perceptions. A great many, however, will deal with the problem by consulting a general practitioner or possibly a pharmacist, or by a combination of stoicism and self‑treatment.
In summary, the ordinary use of toilet paper, perfumed or not, is unlikely to give rise to a condition resulting in perianal itch; it is possible that traces of perfume, resulting from the application of perfume to the core of a roll of toilet paper, may in some cases, where a person is already sensitised to the perfume concerned, cause an allergic contact dermatitis; but that will occur only very rarely. Vigorous rubbing with toilet paper, particularly of the rougher sort, can give rise to irritation causing, among other things, itch; and where irritation is already present, discretion at least in the use of toilet paper is desirable and it is desirable also that, where paper is used, it be soft, white, and as free as practicable of known allergens.
The message of the advertisement
The advertisement is shown on commercial television channels throughout Australia. It should be concluded, therefore, that the class of people who will see and hear its message will represent a wide cross‑section of the Australian community. The cases abound with descriptions of the range of characteristics likely to be found among those who will see and hear television advertisements. The various tests which have been suggested are collected in the judgment of Hill J in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 48, 49 (see also per Foster J at 27). Hill J, referring to the various opinions expressed in the previous authorities, said, at 49:
Perhaps too much emphasis can be placed on this apparent divergence of opinion. In the end, the question is not whether account is to be taken of the effect of the conduct upon the gullible, but whether the conduct in question is misleading or deceptive. The statutory question is best tested in a case such as the present, by reference to the effect of the conduct upon the class of persons who are likely to read and consider the advertisement, that class having the qualities discussed by Franki J.
Franki J refers to those qualities in his judgment in Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 at 176: among those exposed to the conduct, his Honour held that the question should be tested:
... by the effect on a person, not particularly intelligent or well informed, but perhaps of somewhat less than average intelligence and background knowledge although the test is not the effect on a person who is, for example, quite unusually stupid.
If it is accepted, at least, that in considering the effect of the advertisement one must have regard to the likely reaction of the less sophisticated and sceptical among its audience, it is necessary also to bear in mind the warning of Lockhart J in Stuart Alexander & Co
(Interstate) Pty Ltd v Blenders Pty Ltd (1981) 33 FLR 307 at 311 (a case which, like this, had to do with a television advertisement of 30 seconds duration):
However, I think a robust approach is called for when determining whether television commercials of this kind are false, misleading or deceptive. The public is accustomed to the puffing of products in advertising. Although the class of persons likely to see this commercial is wide, it is inappropriate to make distinctions that are too fine and precise.
What is the message, then, that the advertisement is likely to convey to those who may see it once, or perhaps several times, during the course of an evening's television viewing, particularly those among the audience whose likely reaction is (on the authorities) particularly to be regarded? First, I think it is obvious that the advertisement will strike a chord with all those who have felt or succumbed to a desire to scratch and particularly those among the audience who presently suffer from the symptom depicted. Dr Watchorn made that point in her evidence: she said, no doubt truly, that the condition is an embarrassing one, which people are reluctant to talk about and which they are likely to attempt to deal with themselves without consulting a doctor or pharmacist. What will the advertisement tell them? Certainly that the toilet paper they are using may have precipitated or possibly aggravated their affliction (I do not think I should conclude that members of the audience will take as its message that, if they have perianal itch, the cause is necessarily and only the toilet paper). Secondly they are told and would understand that if in fact the toilet paper they are using caused or contributes to their troubles then "they need" the product which is then described. Pausing there, consumers are used to being told that they need things, where "need" is undoubtedly an
exaggeration. The evidence includes a tape of a number of advertisements illustrating that usage: perhaps the best example, among the advertisements on the tape, is one for Kellogg's Sustain; it tells us that:
Even if you are not Rob de Castella if you are serious about fitness, you need the lasting energy of Kellogg's new calcium‑enriched Sustain, the scientific balance of grains, fruits and nuts that is low in fat and salt.
Even if you are not Steve McClean you need Sustain's protein, vitamins and fibre ...
and there is more in the same vein. But certainly the impression likely to be received by the consumer is that changing to Sorbent's new product at least might do some good - which, in the context, means offering some relief from the affliction. What follows in the advertisement would, I think, undoubtedly be taken as offering some explanation of why the product may do some good: it is described as "Sorbent Hypo‑Allergenic"; is said to be free of inks, dyes and perfumes; and it is said to be thick, soft and safe for sensitive skin.
"Hypo‑Allergenic" ... "safe"
The applicant's argument concentrated on the expressions "hypo‑allergenic" and "safe for sensitive skin". As for the former, senior counsel for the applicant pointed to evidence of Drs Watchorn, Nurse and Weiner to the effect that they needed from time to time to explain to patients that "hypo‑allergenic" does not mean "free of allergens". Indeed, Dr Nurse gave evidence that the expression "hypo‑allergenic" had no medical meaning
known to him; he added, however, that the application of the description to a consumer product suggested to him that the product was less allergenic than competing products. Senior counsel pointed also to marketing material prepared for the respondent which included suggestions that a substantial number of consumers might regard "hypo‑allergenic" as meaning "free of allergens". Evidence of that sort is, however, to be treated with very substantial caution. It is, at best, anecdotal. As senior counsel for the respondent pointed out, it has been subjected to none of the rigours which surround the obtaining of acceptable survey evidence; and it rests on some somewhat large assumptions, such as that consumers are likely to understand what an allergen is and how it works in relation to persons sensitised to it, and thus the distinction, for example, between what Dr Weiner described respectively as allergic contact dermatitis and irritant contact dermatitis. There is evidence - I think it is common knowledge - that a number of consumer products, particularly cosmetics, are marketed as "hypo‑allergenic": such products typically contain fewer allergens than similar products not so described but none contain no allergens. Sorbent hypo‑allergenic paper, on the evidence, contains fewer allergens than toilet paper which contains perfume, inks or dyes. In the end, senior counsel did not press an argument that the use of the word "hypo‑allergenic" was by itself misleading or deceptive; to do so would, after all, be inconsistent with the applicant's position that it does not complain of the packaging of the Sorbent product on which the expression "hypo‑allergenic" is used: I cannot, in those circumstances, find that the mere description of the product as "hypo‑allergenic" amounts to misleading or deceptive conduct.
Senior counsel suggested, however, that the vice of the expression lay, in the context of the advertisement as a whole, in its use in combination with the phrase "safe for sensitive skin". In answer to a suggestion that "safe", particularly in an advertising context, might often be seen as a relative term, senior counsel responded that it made all the difference that in this case the word "safe" was used with what he described as the trigger word, "hypo‑allergenic". The submission was that if, as the marketing material suggested, there was a tendency among consumers to regard "hypo‑allergenic" as meaning, in any event, allergen free, that tendency would be reinforced by the use of the phrase "safe for sensitive skin"; the consumer was, it was said, thus encouraged to understand that if he or she had sensitive (i.e., presumably, allergy prone) skin, the respondent's product was safe because it was hypo‑allergenic: it would not provoke a reaction. For a proposition that consumers could not be expected necessarily to understand, or to inquire into, the precise meaning to be ascertained by considering the various Greek elements making up the expression "hypo‑allergenic", counsel cited a series of cases, arising in a rather different context and establishing the proposition that it is no answer to a consumer who has been misled to suggest that the consumer, upon making inquiries, would have discovered the truth: Neilsen v Hempston (1986) 65 ALR 302 at 309; Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 at 612; Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233 at 238.
That submission, in my view, encounters a number of difficulties. I have already referred to what is printed on the packaging of the Sorbent product. The words used are:
Sorbent Hypo‑Allergenic toilet tissue has been found by the Skin & Cancer Foundation Australia to be hypo‑allergenic and non irritating to the skin in clinical tests. Free of inks, dyes and perfume.
As I have mentioned, no complaint is made of that legend (and there was evidence of the dealings between the respondent and the Foundation and of its "finding"). Certainly it does not use the word "safe", but to distinguish it from the advertisement of that ground it seems to me unduly subtle: particularly where the legend on the packaging uses "hypo‑allergenic" not merely as part of the product name but explicitly as a description of a characteristic which it has (and which it has been found to have by the Skin & Cancer Foundation Australia) and where the characteristic is closely and clearly linked to the phrase "non‑irritating to the skin". Secondly, if only because the respondent made much of this, it may be mentioned that the applicant's parent company sells in the United States of America a brand of toilet paper, similar to Sorbent Hypo‑Allergenic, called "Kleenex Cottonelle Hypo‑Allergenic". The packaging of that product describes it as providing a "new standard in bathroom tissue", refers to its "cottony softness" and then says this:
Hypo‑Allergenic: Non‑irritating white bathroom tissue. Free of dyes and perfumes, it's the natural choice for softness.
Ms Bauer gave evidence that the applicant's parent company, before introducing new products, and conducted substantial scientific and marketing research, and that market and research information from America was readily available to the applicant in Australia. Not surprisingly, senior counsel for the respondent stressed those circumstances, and also the refusal of the US parent company to provide documents in response to a "Sabre Corporation" order which I made shortly before the trial (Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428).
As for the packaging of Sorbent Hypo‑Allergenic, the applicant's point was that not only are the words used different from those used in the advertisement but an advertisement on television has a considerably greater impact on consumers than a legend, in relatively small type, on a package of toilet rolls. But it is not obvious that something is less misleading merely because fewer people will read it. In the end, however, the question is not whether what is on the package is misleading, or whether it or the advertisement is more or less misleading than what is on the package of the American product, but whether the television commercial is misleading or deceptive. The other matters may indicate that a cautious approach to the applicant's claim may be justified, and might be relevant on discretionary questions, if it were necessary to deal with them. I do not think they have any other particular significance.
The substantial difficulty faced by the applicant may, I think, be summarised as follows: I have concluded that the description "hypo‑allergenic" is not, in itself, misleading or deceptive when applied to the Sorbent product; on the evidence I cannot conclude that it is misleading or deceptive to describe the product as "free of inks, dyes and perfumes"; there was no suggestion that it cannot appropriately be described as "thick" (at least, presumably, as toilet papers go) or "soft"; once it is accepted (as I think it must be) that "safe" is not used in absolute sense (so as, for example, to suggest that in no case will sensitive skin be detrimentally affected by any application of the product) the evidence does
not enable me, in my view, to conclude that it is misleading or deceptive to describe it as "safe for sensitive skin". Of course, the question whether an advertisement is misleading or deceptive is not conclusively to be answered by a process of parsing and analysis, but by reference to the effect or impression gained from the advertisement as a whole. But in this case I cannot see that the effect of, or impression conveyed by, the conjunction of the various elements is any more misleading or deceptive than any of those elements taken separately.
The causing or exacerbation of irritation
In dealing with the submission about the conjunction of "hypo‑allergenic" and "safe for sensitive skin" I have left to one side the effect on the consumer of the words descriptive of the paper and its qualities in combination with the pictures of people scratching and the introductory words "if your toilet paper is irritating you". But toilet paper comes in various grades and qualities, some relatively hard or rough, some soft, some with perfume, some without, some with inks or dyes and some without. Again, on the evidence, I do not see how I can avoid the conclusion that some applications of some toilet paper in some circumstances may cause irritation; certainly it is clear on the evidence that some applications of some toilet paper in some circumstances can either prolong or exacerbate irritation which is already present. The medical evidence to which I have referred enables me to find, and I do, that in circumstances of that kind the use of a soft toilet paper, with reduced allergenic properties, may help.
The applicant says, however, that the advertisement conveys a representation that toilet paper causes irritation, that is that it is the agent (or at least an agent) which first provokes irritation rather than merely contributing to, prolonging or exacerbating it. But simply as a matter of the common understanding of the English words, I cannot see that that is so. The phrase "your toilet paper is irritating you" is as apt to refer to circumstances where there is already irritation and toilet paper makes it worse as it is to the initiation of irritation. Secondly, the applicant claims that the advertisement implies a comparison not merely between Sorbent Hypo‑Allergenic and other toilet papers generally, but specifically a comparison between Sorbent Hypo‑Allergenic and other premium toilet paper; the advertisement suggests, the applicant says, that the premium toilet paper which the consumer is presently using may irritate the consumer and if so the irritation is likely to be relieved by changing to Sorbent Hypo‑Allergenic. The applicant referred to a series of well‑known authorities for the proposition, as Lockhart J stated it in Stuart Alexander at 310:
Where a person produces a television commercial that, not only boosts his own product but, as in this case, compares it critically with the product of another so that the latter is shown up in an unfavourable light by the comparison, in my view he ought to take particular care to ensure that the statements are correct.
(See also Trade Practices Commission v Telstra Corporation Ltd (1993) ATPR 41, 445 at 41, 454 where Hill J discusses the effect of the authorities on comparative advertising). The applicant says that the only significant difference between its premium white product and Sorbent Hypo‑Allergenic is that, unlike the Sorbent paper, the applicant's product has a quantity of perfume applied to the cardboard core. That, the applicant continues, means that on the evidence there will at most be very few cases where the effect of the applicant's paper on a "bottom", irritated, sensitive or otherwise, will be any different from that of Sorbent Hypo‑Allergenic. The advertisement suggests otherwise and is thus misleading or deceptive. The advertisement does not directly, of course, suggest that premium toilet paper may have caused or aggravated the condition afflicting the pedestrians, human and ursine, and the cyclist: as I understand the submission, however, it is that some consumers who have the affliction and see the advertisement are likely to include some who use, for example, the applicant's premium product, the suggestion to them being that it is "your toilet paper" which is to blame. But unless the advertisement is to be seen as conveying to the consumer that whenever one has a desire to scratch one's bottom it is one's toilet paper which causes what gives rise to that desire (and I have already held that that is not what the advertisement conveys) the submission, in my view, must fail. This is not, in my opinion, a piece of comparative advertising of the kind considered in the cases to which counsel referred.
The representations as particularised
I have thus far discussed the question, whether the publishing of the advertisement constitutes misleading or deceptive conduct, without specific regard to the way in which the representations which it conveys and the respects in which those representations are claimed to be false are particularised in the amended points of claim. I recognise that, where an urgent hearing is sought and time for preparation is limited, it is particularly appropriate that a respondent should know precisely what is the case which must be met and, where an applicant particularises its case as the applicant has done here, to restrict the applicant to what may reasonably be regarded as falling within the particular claims which it has made. The question which s 52 requires to be answered is not, however, readily or satisfactorily confined by what may be described as particular imputations, and generally a tendency to deal with a case arising under s 52 in some respects as it were a defamation case is, I think, to be resisted. At all events, for the reasons which I have given the advertisement in my view does not contain or convey the representation set out in subpara 6(1) of the points of claim if that subparagraph is to be read (as subpara 7(1) suggests) as referring to all toilet tissue, other than "Sorbent Hypo‑Allergenic". Nor do I think that the advertisement contains or conveys the representation in subpara 6(2) in the unqualified form in which that subparagraph is expressed. The same may be said of the representation set out in subpara 6(3). I think it is more satisfactory, however, simply to hold that, for the reasons I have given (and recognising that I have still to deal with the alleged representation as to therapeutic use), the applicant has failed to establish that the respondent, in publishing the advertisement, has engaged in conduct which is misleading or deceptive or is likely to mislead or deceive.
Therapeutic use
The issue arises in this way. The Therapeutic Goods Act 1989 (Cth) in subs 3(1) defines "therapeutic goods" to include goods "that are represented in any way to be, or that are, whether because of the way in which the goods are presented or for any other reason, likely to be taken to be ... for therapeutic use". "Therapeutic use" is then defined as meaning, among other things:
... use in or in connection with:-
(a)preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons or animals; or
(b)influencing, inhibiting or modifying a physiological process in persons or animals; ...
The various terms used in those definitions are not themselves specifically defined.
Section 20 of the Therapeutic Goods Act includes the following prohibition:
(1)A person must not intentionally or recklessly: ...
(c)manufacture in Australia therapeutic goods for supply for use in humans; or
(d)supply therapeutic goods in Australia for use in humans;
unless:
(e)the goods are registered goods or listed goods in relation to the person;
(f)the goods are exempt goods; or
(g)the goods are the subject of an approval or authority under section 19; or
(h)the goods are subject of an approval under section 19A.
Although it was suggested that the advertisement conveyed representations which included claims of a kind specified in cl 7 of the Therapeutic Goods Advertising Code and were therefore prohibited by r 6 of the Therapeutic Goods Regulations, it is not easy to see that the suggestion leads anywhere in these proceedings. The applicant is not suing on the relation of the Attorney‑General, or claiming standing to sue in its own right, to restrain conduct which statute makes unlawful. Rather, the applicant seeks to restrain what it says is misleading or deceptive conduct constituted by the publication of an advertisement which (the applicant says) contains or conveys a representation that Sorbent Hypo‑Allergenic toilet tissue is for therapeutic use and is a therapeutic good which is registered, listed or exempt, or the subject of an approval, under the Therapeutic Goods Act.
The applicant's claim under this head is very similar to the claim which, by majority, the Full Court rejected in Rhone‑Poulenc Agrochimie v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 and it should, in my view, be rejected here for similar reasons. It is worth pointing out that Jackson J, who dissented, said at 508:
I do not mean to convey, of course, that there will be a contravention of s 52(1) on every occasion on which there is a sale by a corporation of a product in contravention of the law be it a law of a State, a law of the Commonwealth or a law of the Territory. Each case must turn on its own facts.
The circumstances in that case differ from the circumstances here in a way which seems to me significant: there (but not here) the lack of the necessary approval could,
potentially, result in serious consequences under the statute for the buyer, as well as the seller. Of course, a decision on one set of facts does not conclude a question arising in relation to different facts. However, I am unable to accept that even consumers who knew, generally or specifically, about the scheme of the Therapeutic Goods Act would be likely to imagine that the advertisement not only promotes the toilet paper for use in connection with curing or alleviating a disease or ailment but suggests that, in relation to it, steps have been taken under the Therapeutic Goods Act which would be necessary in the case of a product falling within the statutory class of therapeutic goods. It is, after all, an advertisement of nothing more than ordinary toilet paper to which certain potential allergens have not been added, claiming that, if other toilet paper irritates, this may help. I am by no means convinced that the advertisement should be taken to promote the paper for therapeutic use. Instead, obviously enough the purpose for which it is promoted is that for which toilet paper is ordinarily used; to say, in substance, that if other toilet paper irritates you "you need" Sorbent Hypo‑Allergenic does not, I think, mean that it is represented as being "for use" in curing or alleviating a disease or ailment producing the symptom of pruritus ani. But, however that may be, the second step is, to my mind much too refined: in the absence of evidence suggesting that anyone was actually misled I am unable to conclude that the representation set out in para 9 of the points of claim is conveyed.
Conclusion
For those reasons the declaratory and injunctive relief sought by the applicant must be refused. I think it follows equally that the application should be dismissed. The applicant should pay the respondent's costs.
I certify that this and the preceding 25 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated: 27 March 1997
Heard: 10, 11, 12 and 14 March 1997
Place: Sydney
Decision: 27 March 1997
Appearances: Mr T K Tobin QC and Mr P W Gray of counsel instructed by Deacon Graham & James appeared for the applicant.
Mr A J L Bannon SC and Mr T D Castle of counsel instructed by Middleton Moore & Bevins appeared for the respondent.
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