Procter & Gamble Australia Pty Ltd v Energizer Australia Pty Ltd

[2011] FCA 1347

FEDERAL COURT OF AUSTRALIA

Procter & Gamble Australia Pty Limited v Energizer Pty Limited
[2011] FCA 1347

Citation:

Procter & Gamble Australia Pty Limited v Energizer Pty Limited [2011] FCA 1347

Parties:

PROCTER & GAMBLE AUSTRALIA PTY LIMITED ACN 008 396 245 v ENERGIZER AUSTRALIA PTY LIMITED ACN 003 539 026

File number:

NSD 121 of 2011

Judge:

BENNETT J

Date of judgment:

29 November 2011

Catchwords:

TRADE PRACTICES – respondent admits making representation in promotional materials that respondent’s products have a hydrating effect on the skin of the user during shaving process – whether representation contravenes ss 18(1) and 29(1)(g) of Australian Consumer Law – whether hydrating effect is greater than de minimis

TRADE PRACTICES – whether respondent made representation in promotional materials that respondent’s products have a hydrating effect on the skin of the user after shaving process – relevance of nature of product – relevance of absence of evidence of consumer complaint or consumer misunderstanding

TRADE PRACTICES – whether respondent made representation in promotional materials that respondent’s products provide best shave for user in comparison to other products – whether respondent’s claims are mere puffery

Legislation:

Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law) ss 4, 18(1), 29(1)(g)

Cases cited:

ACCC v Dukemaster Pty Ltd [2009] FCA 682 cited

ACCC v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 cited
Annand & Thompson Pty Ltd v Trade Practices Commission [1979] 25 ALR 91 cited
Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 27 FCR 149 cited
Cadbury Schweppes v Darrell Lea (No 4) (2006) 229 ALR 136 cited
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 applied
Jainran Pty Ltd v Boyana [2008] NSWSC 468 applied
Kulikovsky v Police [2010] SASC 58 cited
Lymquartz v 2 Elizabeth Bay Road [2007] NSWSC 457 cited
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 followed
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 cited
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 cited

Date of hearing:

5-9, 14-16 and 23 September 2011

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

317

Counsel for the Applicant:

Mr S Robb QC with Mr T Breakspear

Solicitor for the Applicant:

Colin Biggers & Paisley

Counsel for the Respondent:

Mr J Hennessy

Solicitor for the Respondent:

Gilbert + Tobin

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 121 of 2011

BETWEEN:	PROCTER & GAMBLE AUSTRALIA PTY LIMITED (ACN 008 396 245) Applicant
AND:	ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	29 November 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The parties are to submit proposed agreed orders by 6 December 2011.

2.If the parties are unable to agree proposed orders, each party should submit proposed orders, including orders as to costs, by 9 December 2011. If desired, the proposed orders may be accompanied by short written submissions of no more than 2 pages, in normal font and spacing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 121 of 2011

BETWEEN:	PROCTER & GAMBLE AUSTRALIA PTY LIMITED (ACN 008 396 245) Applicant
AND:	ENERGIZER AUSTRALIA PTY LIMITED (ACN 003 539 026) Respondent

JUDGE:	BENNETT J
DATE:	29 November 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Since 9 January 2011, the respondent (Energizer) has promoted and sold in Australia the five-bladed Schick Hydro 5 razor (Hydro 5), the three-bladed Schick Hydro 3 razor (Hydro 3), replacement cartridges for the Hydro 5 (Hydro 5 Replacement Cartridges) and replacement cartridges for the Hydro 3 (Hydro 3 Replacement Cartridges) (collectively, Hydro Products). 

2. Through its Gillette brand, the applicant (P&G) is a competitor of Energizer in the Australian men’s wet razor market.  Gillette’s razor products include the five-bladed Mach 5 and the three-bladed Mach 3.

3. The parties to these proceedings are both Australian companies.  However, in the course of these reasons, where I use P&G and Energizer, this may, where applicable, refer to the parent company or an associated entity of the parties.

4. These proceedings concern material used by Energizer in the promotion and sale of the Hydro Products, which includes:

   ·the packaging of the Hydro 5 (the Hydro 5 Packaging), Hydro 3 (the Hydro 3 Packaging), Hydro 5 Replacement Cartridges (the Hydro 5 Replacement Cartridges Packaging) and Hydro 3 Replacement Cartridges (the Hydro 3 Replacement Cartridges Packaging)  (collectively, the Packaging);

   ·the display of the Hydro Products in supermarkets (the Display);

   ·an advertisement published in the Daily Telegraph newspaper on or about 10 January 2011 (the Daily Telegraph Advertisement);

   ·two advertisements published in the Zoo Weekly magazine on or about 27 and 28 February 2011 (the First Zoo Weekly Advertisement and the Second Zoo Weekly Advertisement respectively, together the Zoo Weekly Advertisements);

   ·an online advertisement available at Energizer’s website (the Schick Online Advertisement);

   ·an online advertisement available at Energizer’s website (the Hydro Online Advertisement);

   ·material on a “Schick for Men Australia” Facebook page (the Facebook Page); and

   ·advertisements broadcast on Australian television (the 30 Second Television Advertisement, the First 15 Second Television Advertisement and the Second 15 Second Television Advertisement, together the Television Advertisements);

   ·material on the YouTube page (the YouTube Page);

   (collectively, Hydro Materials).

5. It is not in dispute that the Hydro Materials are either publicly accessible, have been broadcast on television or have been published in various print media.

6. P&G contends that Energizer has contravened ss 18(1) and 29(1)(g) of the Australian Consumer Law (Cth) (ACL) by making representations in the Hydro Materials that:

   ·the use of certain or all of the Hydro Products will have a moisturising/hydrating effect on the user’s skin during the shaving process (the Transient Hydration Representation); and

   ·the use of certain or all of the Hydro Products will have a moisturising/hydrating effect on the user’s skin beyond the shaving process (the Long-Lasting Hydration Representation);

   ·the Hydro 5 and Hydro 5 Replacement Cartridges (collectively, the Hydro 5 Products) provide the best shave for the skin of the user in comparison to all other wet shave razors (the Best Shave Representation).

7. P&G no longer relies on an alleged representation made by Energizer to the effect that the “hydrating gel reservoir” component of the Hydro 5 Products has different properties and causes different effects during the shaving process than does the lubricating gel reservoir component of the Hydro 3 and Hydro 3 Replacement Cartridges (collectively, the Hydro 3 Products).

8. There are three issues before the Court.

9. First, does the use of the Hydro Products have a moisturising/hydrating effect on the user’s skin during the shaving process? Energizer admits that the Hydro Materials make the Transient Hydration Representation but denies that this representation is false, misleading, likely to mislead, deceptive or likely to deceive. Accordingly, the parties agree that if the answer to this question is in the negative, Energizer will have contravened the ACL by making the Transient Hydration Representation.

10. Secondly, do the Hydro Materials make the Long-Lasting Hydration Representation? Energizer admits that the Hydro Products are not capable of having a moisturising/hydrating effect beyond the shaving process but denies that the Hydro Materials make the Long-Lasting Hydration Representation. Accordingly, the parties agree that if the Court finds the Long-Lasting Hydration Representation to have been made, Energizer will have contravened the ACL.

11. Thirdly, are the claims relied upon by P&G in alleging that Energizer has made the Best Shave Representation mere puffery? By orders made 21 July 2011, the Court limited its consideration of the Best Shave Representation to this question for the purposes of the current hearing. The parties agree that if the answer to this question is in the affirmative, Energizer will not have made the Best Shave Representation and will not have contravened the ACL. However, if the answer to this question is in the negative, Energizer will have made the Best Shave Representation and a further hearing will be necessary to determine whether the making of the Best Shave Representation contravenes the ACL.

12. The parties conducted the case on the basis that, as the hydration of the skin results in extra moisture on the skin, there was no distinction to be drawn between hydration and moisturisation for the determination of these issues.  However, the parties drew a distinction between the Hydro Products and products known to have a longer term moisturising effect, such as cosmetic moisturisers.

13. It is necessary at this point to explain the structure of these reasons.  At the outset, I outline the relevant legal principles, the qualifications of the expert witnesses and the parties’ characterisation of the male shaving process.  I then turn to consider the evidence on the hydrating effect of the Hydro Products.  This evidence is relevant to the Transient Hydration Representation.  This is followed by an examination of the characteristics of the reasonable consumer.  Having done this, I then make findings on the Transient Hydration Representation.  At this point, I turn to consider the Long-Lasting Hydration Representation and the Best Shave Representation.  First, I deal with some general submissions on the appropriate approach to be taken to these representations.  I then consider each of the Hydro Materials individually.  I do so by outlining the contents of the Hydro Material under consideration and then considering whether the Long-Lasting Hydration Representation is made and, where relevant, whether the Best Shave Representation is made.

14. The index of these reasons is as follows:

LEGAL PRINCIPLES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[15]
EXPERT WITNESSES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[21]
Dr Rawlings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[23]
Professor Lavker........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[29]
Professor Humbert........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[30]
THE SHAVING PROCESS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[31]
EVIDENCE ON THE TRANSIENT HYDRATION REPRESENTATION........ ....	[34]
Background ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[35]
Skin hydration, moisturisation and skin lubrication........ ........ ........ ........ ........ .....	[35]
Relevant matters ultimately not in issue........ ........ ........ ........ ........ ........ ........ ........	[42]
Issues with experimental data........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[43]
The measuring instruments........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[44]
The characteristics of Hydro Polyox........ ........ ........ ........ ........ ........ ........ ........ ......	[53]
The timing of measurements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[59]
The experimental results........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[73]
The P&G tests........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[73]
The Energizer tests........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[83]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[91]
THE REASONABLE CONSUMER........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[92]
THE TRANSIENT HYDRATION REPRESENTATION........ ........ ........ ........ ........ .	[97]
The pleadings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[101]
Is the hydrating/moisturising effect greater than de minimis?........ ........ ........ .....	[106]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[116]
PRELIMINARY ISSUES CONCERNING THE LONG-LASTING HYDRATION REPRESENTATION AND THE BEST SHAVE REPRESENTATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[120]
Individual consideration of the Hydro Materials........ ........ ........ ........ ........ ........ ...	[120]
Approach to consideration of the Long-Lasting Hydration Representation.......	[125]
Approach to consideration of the Best Shave Representation........ ........ ........ ......	[135]
CONSIDERATION OF THE LONG-LASTING HYDRATION REPRESENTATION AND THE BEST SHAVE REPRESENTATION........ ........ .	[141]
The Packaging........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[142]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[152]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[152]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[153]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[155]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[163]
The Display........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[177]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[178]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[178]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[181]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[183]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[189]
The Daily Telegraph Advertisement........ ........ ........ ........ ........ ........ ........ ........ ........	[191]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[192]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[192]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[194]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[196]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[199]
The Zoo Weekly Advertisements ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[201]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[209]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[209]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[214]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[216]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[224]
The Schick Online Advertisement........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[227]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[238]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[238]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[239]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[242]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[251]
The submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[253]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[256]
The Hydro Online Advertisement........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[259]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[264]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[264]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[265]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[267]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[273]
The Facebook Page........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[275]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[278]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[278]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[280]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[281]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[287]
The Television Advertisements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[290]
The Long-Lasting Hydration Representation........ ........ ........ ........ ........ ........ ........	[294]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[294]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[297]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[300]
The Best Shave Representation........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[305]
The YouTube Page........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[308]
P&G submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[309]
Energizer submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[310]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[311]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[315]

LEGAL PRINCIPLES

1. Section 18(1) of the ACL provides that ‘a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.

2. Section 29(1)(g) of the ACL provides that:

   A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits.

3. There is no dispute that although s 29(1) uses the term “false or misleading” rather than “misleading or deceptive” there is no material difference between these terms (ACCC v Dukemaster Pty Ltd [2009] FCA 682 at [14]).

4. The legal principles are not in dispute between the parties.  However, it is worth briefly mentioning some of those principles:

   ·In order to be misleading, the conduct in question must contain or convey a misrepresentation.  Whether or not particular conduct is misleading is a question of fact to be determined having regard to the context in which the conduct takes place and the surrounding factual circumstances (Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199).

   ·The conduct of the respondent must be viewed as a whole taking into account all words and acts (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ).

   ·In the case of advertising in relation to a mass-marketed product for general use, the question is whether the misconceptions or deceptions are likely to be suffered by an ordinary or reasonable member of the class of prospective purchasers (Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [103] and [105]).

   ·There need only be a real or not remote chance that the advertisement be understood to have a particular meaning, regardless of whether it is less or more than 50% (Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 27 FCR 149 at 268, applying Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367).

   ·It is not essential to prove that consumers have actually been misled but the absence of any such evidence can, in appropriate circumstances, be regarded as ‘very material’ and ‘of some importance’ (Cadbury Schweppes v Darrell Lea (No 4)(2006) 229 ALR 136 at [80]).

   ·Whether a representation is a puff depends on the particular facts considered in light of the ordinary incidents and character of commercial behaviour (ACCC v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 at [122]).

5. In addition, there is no dispute as to the application of s 4 of the ACL to these proceedings. That section provides:

   (1)      If:

   (a)a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

   (b)the person does not have reasonable grounds for making the representation;

   the representation is taken, for the purposes of this Schedule, to be misleading.

   (2)For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

   (a)       a party to the proceeding; or

   (b)       any other person;

   the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

   (3)      To avoid doubt, subsection (2) does not:

   (a)have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

   (b)have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

   (4)Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:

   (a)       a misleading representation; or

   (b)       a representation that is misleading in a material particular; or

   (c)conduct that is misleading or is likely or liable to mislead;

   and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

6. Section 4(1) of the ACL states that a representation with respect to any future matter is misleading if there are no reasonable grounds for making the representation. Section 4(2) states that, unless evidence is adduced to the contrary, the person making the representation is taken not to have had reasonable grounds for making the representation. P&G accepts that:

   ·Energizer has, in these proceedings, adduced ‘evidence… to the contrary’ for the purpose of s 4(2) of the ACL.

   ·Accordingly, Energizer had reasonable grounds for making the Transient Hydration Representation. 

   ·P&G has the onus of establishing that Energizer has contravened ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation.

   ·If the Court is unable to decide, based on the evidence, whether the Transient Hydration Representation is false or misleading, Energizer will not have contravened the ACL.

   EXPERT WITNESSES

7. P&G adduced independent evidence from Dr Anthony Rawlings, while Energizer adduced independent evidence from Professors Lavker and Humbert.  Dr Rawlings and Professor Lavker met and submitted a joint report.  They gave concurrent oral evidence.  Professor Humbert was cross-examined by video/audio from France.

8. There is no challenge to the expertise of these witnesses.  However, Energizer disputes Dr Rawlings’ status as an independent expert.

   Dr Rawlings

9. Dr Rawlings is an independent consultant in the health and beauty industry.  He has more than 25 years of experience in research and development, including 22 years of research in skin biology at several senior management levels at companies such as Unilever Plc and Cussons International Ltd.  Since 2002, Dr Rawlings has consulted for many skincare companies and ingredient suppliers on all aspects of skin biology, including skin moisturisation and its testing.  In May 2011, he was appointed as Visiting Professor to the Department of Pharmaceutics in the School of Pharmacology at the University of London.  Dr Rawlings is the author or co-author of more than 170 papers, book chapters and abstracts in the areas of skin and good science.

10. Dr Rawlings was cross-examined on his relationship with P&G.  The following points emerged from the evidence:

    ·Dr Rawlings has been providing consulting services to P&G for approximately eight years, a fact that he did not disclose in his report.  Dr Rawlings explained his failure to disclose his consultancy for P&G on the basis that he had not consulted for Gillette and had never given any opinions to P&G on shaving or use of shaving preparations. 

    ·Dr Rawlings has given evidence for P&G in proceedings in the United States, a fact he disclosed in his statement.  

    ·Dr Rawlings’ name and comments have been used in the promotion of other P&G products. 

    ·P&G has sponsored certain research undertaken by Dr Rawlings.

11. Energizer says that, as a consequence of the relationship identified above, Dr Rawlings sought to advance P&G’s case in an unmoderated fashion, such that he refused to yield to even the most obvious of subjects and raised speculative factors without making any proper attempt to substantiate them.  Energizer submits that Dr Rawlings was not a truly independent expert and that his evidence should be accorded less weight than the Court would otherwise be inclined to give it.  

12. Energizer relies on the contents of Practice Note CM 7, which states, under the header “General Duty to the Court”, that:

    1.1An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.

    1.2An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.

    1.3An expert witness’s paramount duty is to the Court and not to the person retaining the expert.

13. Energizer also relies on authorities which suggest that an expert’s lack of independence (Kulikovsky v Police [2010] SASC 58 per Gray J at [36]-[39]) and failure to disclose a pre-existing relationship with the party for whom the expert is giving evidence (Lymquartz v 2 Elizabeth Bay Road[2007] NSWSC 457 at [163]) should affect the weight to be given to the expert’s evidence.

14. I accept that Dr Rawlings has had a consulting relationship of long standing with P&G.  That reflects the connection between his expertise and P&G’s products.  I did form the view that Dr Rawlings has strongly held opinions, for example, about the use of instruments to measure changes in hydration, to which he held steadfastly.  I did not form the view that his evidence was tainted by, or inappropriately affected by, his consulting relationship with P&G.  I do not lessen the weight to be given to Dr Rawlings’ evidence on this latter basis.

    Professor Lavker

15. Professor Lavker is a Professor of Dermatology (with tenure) and Director of Research in the Department of Dermatology at the Feinberg School of Medicine at Northwestern University in Chicago, United States of America, where he has been on faculty since 2002.  Prior to this, he was a member of the faculty of the University of Pennsylvania for 26 years, attaining the rank of Professor of Dermatology (with tenure) and Director of Research.  Professor Lavker has spent the last 42 years studying various aspects of cutaneous biology.  This has encompassed investigations into the structure and function of various aspects of the human skin.  He has published over 130 original peer reviewed papers and over 35 chapters and reviews.

    Professor Humbert

16. Professor Humbert is a Professor of Dermatology at University Hospital in Besançon, France.  He is also Director of the Centre for Studies and Research on the Integument, which is an informal structure located within the unit for functional exploration of the skin at the University Hospital.  Since 1993, Professor Humbert has held the positions of Head of the Department of Dermatology and Director of the Laboratory of Cutaneous Engineering and Biology at the University of Besançon.  From 2005 to 2010, Professor Humbert was the chairman of the International Society for Biophysics and Imaging of the Skin (ISBS).  He is currently a member of the ISBS Executive Committee.  He is the co-editor of a leading practitioner textbook entitled “Measuring the Skin: Non-invasive Investigations, Physiology, Normal Constants” published in 2004.

    THE SHAVING PROCESS

17. Both parties recognise that the steps and time taken by men when using manual razors in the shaving process are not uniform.  However, for the purposes of this case, the parties agree on a basic series of steps:

    1.Wetting the face with hot water to soften the beard.

    2.Applying shaving foam.

    3.Using the razor such that the first stroke removes most of the shaving foam and the hair.

    4.Rinsing the face.

    5.Drying the face with a towel.

18. While there was some dispute about the quantity of water used for rinsing and the time between rinsing and drying, this did not, in the end, affect the analysis.  P&G submits, and I accept for the purposes of these proceedings, that men routinely dry their faces immediately after rinsing, assuming that they do not bathe or shower following the shaving process.

19. It is not in dispute that the wet shaving process includes the use of pre-shave products, water, shaving creams and gels and post-shave products.

    EVIDENCE ON THE TRANSIENT HYDRATION REPRESENTATION

20. The majority of the parties’ evidence was directed to establishing whether the Hydro Products provide a moisturising/hydrating effect on the user’s face during the shaving process.

    Background

    Skin hydration, moisturisation and skin lubrication

21. Professor Lavker describes “skin hydration” as the amount of moisture in the outer layer of the skin, a definition that he says is, in his experience, accepted by dermatologists, cutaneous biologists and individuals in the cosmeceutical industry.  It can be achieved by short-term means, such as when water is applied to the skin surface, or longer term, as in the case of occlusion, which “seals” the skin to prevent evaporation.  In contrast, skin moisturisation is the process of delivering agents that restore the lipid bilayer of the stratum corneum (SC), add moisturising ingredients and promote the removal of the outermost cells of the SC (desquamation).  The term “moisturisation” is, as described by Professor Lavker, product and context-dependent.

22. Professor Humbert draws a distinction between moisturisation, which he describes as a dynamic state leading to hydration of the skin, and hydration, which he describes as a static state of hydrated skin.  He explains that the act of moisturisation leads to the hydrated state of the skin.  The hydration effect is a state at a given time “t”, whereas moisturisation has a particular temporal aspect.  It denotes a period of time during which the skin will benefit from the emollient effect.

23. Skin lubrication occurs when a substance is applied to the skin that influences friction.  Lubrication of the skin can be effectively achieved by water, aqueous surfactants and oil-based products.  This aspect of skin care is also product and/or formula dependent.

24. There is no dispute between the experts that hydration means the addition and retention of water in the skin.  Water is required to maintain a properly functioning SC.  Thus, skin hydration is beneficial.

25. As Dr Rawlings explains it, simply adding water to the skin will not “hydrate” the skin in any meaningful way because the water will evaporate from the skin’s surface.  Water does not hydrate the skin for a sufficiently long time truly to moisturise the skin.  Long-lasting hydration, rather than the masking of skin dryness by emolliency, is provided either by the application of ingredients that bind water, which then reside on the skin’s surface or penetrate into the surface layers of the skin, or by the application of ingredients that reduce the loss of water from the surface layers of the skin.  As explained by Dr Janet Coope-Epstein, a Development Chemist working for Energizer Inc who was part of the team that developed the Hydro Products, the latter occurs by retarding the evaporation of water on the skin surface.

26. Humectants are classified in the former category.  They hold on to water and help retain water in the skin.  Occlusive agents are in the latter category.  Both are commonly found in moisturisers that provide long-lasting hydration of the skin.

27. When there is low humidity, the skin is constantly losing water to the air.  Simply washing the skin with water only results in a temporary increase in the water content of the skin as the water will then be lost from the skin’s surface, usually in a matter of minutes.  Effective moisturisers may act by helping to reduce water loss from the skin, that is, by occlusion. 

    Relevant matters ultimately not in issue

28. Ultimately, a number of matters were not in issue:

    ·Skin hydration is the amount of moisture in the outer layers of the skin and on the skin surface.

    ·Hydration in moderation is beneficial to the skin.

    ·Skin moisturisation is the process of increasing skin hydration through the topical application of complex chemical agents.

    ·Skin lubrication is the application of substances that will affect (reduce) friction.

    ·It is possible for a single product both to hydrate and to lubricate the skin.

    ·Because skin surface cells and the emerging hair are in intimate contact, it is virtually impossible to cut or shave the beard closely without removing some skin surface cells.  An inevitable consequence of a “close shave” is the removal of beard hair along with a portion of skin surface cells that would normally be shed or desquamated.  These cells do not play a significant role in barrier and/or hydrating function and thus shaving is not necessarily bad for the skin.

    ·Water softens the SC.  Water is required to maintain a properly functioning SC and thus skin surface hydration is beneficial.

    ·The moisture level of the skin is most often measured by assessing levels of capacitance or conductance.

    ·There is no fixed time properly to measure skin hydration; it is context-dependent.

    ·Polyethylene oxide (polyox) is a common ingredient used in razor comfort strips by Energizer and Gillette.

    ·The Hydro 3 and Hydro 5 have a gel reservoir above the blades that primarily contains a proprietary polyethylene oxide (PEG-115M) (Hydro Polyox).  

    ·During the shaving process, Hydro Polyox is activated by water, exits the reservoir and is distributed over the skin surface.

    ·Hydro Polyox has the capacity to bind water.

    ·Hydro Polyox is capable of absorbing water, adhering to the skin and has humectant properties.  During the time that it adheres to the skin it is capable of providing a measure of hydration.

    ·Hydro Polyox is of higher molecular weight than the polyox used in P&G’s shaving products.  This is a material physical difference.

    ·Hydro Polyox does not have any hydrating effect on the skin once men pat their faces dry with a towel.

    ·The gel reservoir of each of the Hydro 3 and Hydro 5 contain the same formulation.

    Issues with experimental data

29. The parties each rely on experimental data in support of their case.  There does not appear to be a challenge to these data.  However, both parties contend that deficiencies in the methodologies used in the experiments run on behalf of the other party make the data unsuitable for drawing conclusions on whether or not the Hydro Products have a hydrating effect during the shaving process.  Before turning to the experimental data, it is necessary to discuss these arguments.  They are:

    ·the appropriateness of the measuring instruments used in the experiments;

    ·the mechanism by which Hydro Polyox hydrates the skin; and

    ·the timing of the measurements in the experiments.

    The measuring instruments

30. As stated above, the moisture level of the skin is most often measured by assessing levels of capacitance or conductance.  The two most commonly used instruments for measuring skin hydration are the Corneometer, which measures capacitance, and the SkiCon, which measures conductance.  In both cases, measurements vary with changes in the moisture level.  Both capacitance and conductance measurements are made at intervals of time to measure moisture/hydration.  In the context of a product, the measurement of how long-lasting the moisturising or hydrating effect is commences at the time the product is applied.

31. P&G carried out its experimental testing for hydration using a Corneometer, while Energizer carried out its experimental testing using a SkiCon.  Professor Lavker and

    
    

    Dr Rawlings agree that there is no concordance between the measurements made by the Corneometer and those made by the SkiCon in the experiments in evidence in these proceedings.

32. Without entering into a discussion of the mechanism of measurement in each case, it can be accepted that the SkiCon measures a more superficial range of depths than does the Corneometer.  Although the SkiCon may seem more variable, it is more sensitive in measuring highly hydrated skin.  However, the readings using the SkiCon increase significantly in the presence of conductive materials other than water.  The scatter of data means that it is more difficult to prove statistically significant differences between treatments by use of this instrument.

1. Professor Lavker and Dr Rawlings agree that:

   ·The SkiCon has a higher dynamic measuring range than the Corneometer and measures hydration in the superficial layers of the SC.

   ·The SkiCon is sensitive to the existence of confounding factors.

   ·The washing of the face with water has an effect on the SkiCon readings.

2. Shaving causes damage to the outer layers of the SC.  The lower layers of the SC, exposed by shaving, have a higher quantity of water which, in turn, will result in a higher conductance reading using electrical measures of skin hydration after shaving.  Dr Rawlings is of the view that the SkiCon, which measures the hydration of the superficial layers of the SC, will be more sensitive to the removal of the superficial layers of the SC by exfoliation than will the Corneometer.

3. It is fair to say that Dr Rawlings is no fan of the SkiCon.  He is not particularly familiar with it and prefers to draw conclusions from Corneometer readings.  He rejects SkiCon readings where the hydration levels are measured as high and there is no corresponding indication of hydration in Corneometer readings.  It is not in dispute that the presence of glycerol and conductive materials other than water result in increased SkiCon readings.  Professor Lavker accepts that absolute SkiCon readings as a measure of hydration can be affected by the presence of conductive material and exfoliation but rejects the suggestion that such matters or other theoretical “confounding factors” explain the SkiCon results in the experiments relied upon by Energizer, to which I turn below.  These results support an increased level of hydration from use of the Hydro Products.

4. Professor Humbert describes both the Corneometer and the SkiCon as instruments which allow the electrical properties of the skin to be determined.  Professor Humbert expresses the opinion that the SkiCon is an appropriate instrument to measure the hydration state in the upper part of the skin, as in the experiments relied upon by Energizer.  Professor Humbert accepts that there may be confounding factors in measurements taken by the SkiCon, such as the inclusion in the measurement of free water on the surface of the skin.  However, like Professor Lavker, Professor Humbert is of the view that the results of the experiments involving the SkiCon should not be rejected on this basis. 

5. Dr Grove is the Vice President of Research and Development for CyberDERM, an independent testing laboratory that specialises in developing and refining instrumental methods to allow objective assessment of changes in human skin.  CyberDERM had previously been retained by Energizer to assist with the design and clinical testing of skin hydration effects of the Hydro Products.  Dr Grove has over 35 years experience including in clinical testing of the skin, statistical analysis and interpretation of test data.  Dr Grove has experience with both the SkiCon and the Corneometer and is of the opinion that the SkiCon is more suitable for testing any increased hydration during shaving due to its greater degree of accuracy taking measurements in a moisture rich environment.  That is, it is more sensitive to measuring changes in increased hydration.  In Dr Grove’s experience, the Corneometer might be more sensitive to measuring changes in decreased hydration, which is not the relevant measurement in the experiments conducted in these proceedings.

6. I see no sufficient reason to reject the SkiCon data relied upon by Energizer.  The SkiCon is a recognised instrument for measuring increased hydration.  Dr Rawlings’ concerns were largely theoretical and did not cause Professor Lavker, Dr Grove or Professor Humbert to reject the results.

   The characteristics of Hydro Polyox

7. Polyox water-soluble resins are nonionic, high molecular weight, water soluble polyethylene oxide polymers.  Molecular weights range from 100,000 to about 8,000,000.  Low molecular weight grades are commonly used in cosmetics, for their ability to impart slip to a lotion. 

8. Shear and heat are known to degrade, or reduce, the molecular weight of polyox.  An experiment conducted by Dr Coope-Epstein demonstrated that a theoretical molecular weight of polyox of approximately 3,800,000 was reduced on normal processing to 965,000.  The higher molecular weight polyox has increased substantivity to the skin.  That is, it adheres to the skin more readily.  It is of interest that polyox with a molecular weight of 4,000,000 and higher is recorded by Dow Chemicals, the manufacturer of Hydro Polyox, as having the highest level of mucosal adhesion.  Hydro Polyox has a higher molecular weight, approximately 6,000,000, than the forms of polyox that are typically used in razor comfort strips.  Hydro Polyox, Professor Lavker says, is part of a shaving product and is therefore transient not a leave-on moisturiser.  According to Professor Lavker, Hydro Polyox is extremely water soluble.  Hydro Polyox is present in the gel reservoir that forms part of the razor.  The manufacturing process used for filling and sealing the gel reservoir in the Hydro Products is, according to Mr Follo, the Director of Shaving Sciences for Energizer Holdings Inc (the parent company of Energizer), conducted to avoid high temperatures and pressures, thereby reducing the degradation of Hydro Polyox.  This is in order to maintain the high molecular weight which would be lost if conventional comfort strip manufacturing processes were used. 

9. The water retention ability of high and low molecular weight polyox is approximately the same.  Pre-rinse measurements are not of assistance in any comparative analysis between Hydro Polyox and the form of polyox used by P&G in its shaving products because there is no dispute between the parties that both forms of polyox, though of different molecular weight, have equivalent humectant properties and are each capable of holding 10 to 15% by weight at high relative levels of humidity.  That means that both parties accept that both high and low molecular weight polyox including, relevantly, Hydro Polyox, act as humectants, which the experts agree can bind water to the skin, in the time period between application and rinsing.  There is no evidence supporting a differential hydrating effect as between Hydro Polyox and another lower molecular weight form of polyox prior to rinsing.

10. During the shaving process, Hydro Polyox is activated by water, exits the reservoir and is distributed over the skin.  Energizer claims that the superior substantivity of Hydro Polyox, that is, its enhanced ability to adhere to the skin, is attributable to its higher molecular weight and therefore greater size.  This means, it says, that Hydro Polyox is not removed by the rinsing process, unlike the more readily removed lower molecular weight form of polyox.  That is, it stays on the skin for longer, withstanding shaving and rinsing, and continues to bind water to the skin as a humectant.  Energizer claims that Hydro Polyox will retain the water already present on the skin’s surface following every shaving stroke and will hydrate the skin during the shaving process.

11. An experiment conducted by Dr Coope-Epstein to test the water retention of Hydro Polyox demonstrated slower evaporation from a surface of a solution containing the Hydro Polyox than the evaporation rate of pure water.  Professor Lavker reports a study in which it was found that water evaporation was slower for an aqueous solution of polyox when compared with pure water. 

12. Dr Coope-Epstein concludes that the relevant mechanism for the hydrating effect of Hydro Polyox is that, as a result of its higher molecular weight, Hydro Polyox stays on the skin for longer and continues to bind water to the skin as a humectant.  Professor Lavker’s conclusion as to the relevant mechanism is that Hydro Polyox remains on the surface of the skin following rinsing with water and that it lubricates and transiently hydrates the skin.  I accept the evidence of Professor Lavker and Dr Coope-Epstein as to the mechanism by which Hydro Polyox may hydrate the skin.

    The timing of measurements

13. Companies that market moisturising products that are designed to be left on the skin or washed off usually follow the recommendations of the European Group on Efficacy Measurements on Cosmetics and Other Topical Products (EEMCO) for instrumental measurements of skin hydration (the EEMCO guidelines).  The EEMCO guidelines involve an experimental design whereby the first measurement is taken at least 30 minutes after product application to measure the hydration levels of, for example, cosmetics.  The EEMCO guidelines recommend waiting at least 30 minutes before measuring skin hydration for topically applied moisturising ingredients. 

14. Dr Rawlings says that at time points earlier than 30 minutes it is impossible to discriminate between the functioning of the moisturising ingredients and the excess water present on the skin, either from the product or as a result of the regimen.

15. In issue were:

    ·The relevance of the methodology in the EEMCO guidelines which, the experts agree, are primarily designed for leave-on products.

    ·The relative hydration effect of Hydro Polyox in the context of the amount of water previously applied to the skin during the shaving process and whether there is a need for a time period for measurement capable of reflecting such an effect.

16. Energizer says that the EEMCO guidelines were developed to assess the hydration effects of long-term moisturisers, as distinct from a product yielding a short-term hydration effect. Energizer draws a distinction between a moisturising product and a hydrating product. I refer to Professor Humbert’s distinction at [36]. Professor Humbert says that the EEMCO guidelines are especially used for cosmetic efficacy. He notes that the objective of a shaving gel is different from that of a hydrating cosmetic. He says that shaving with a hydrating gel is not aimed at replacing the hydrating cream that is applied afterwards. Professor Humbert recognises that the studies relied upon by Energizer involve a departure from the EEMCO guidelines, but says that such a departure is warranted because, in contrast with a cosmetic that does not change the surface of the skin but acts directly on the state of the skin, shaving induces changes in the structure of the skin and on the sebaceous function and therefore on the hydrolipidic film.

17. In Professor Lavker’s opinion, there is a fundamental distinction between cosmetic products, known as moisturisers, and transient products, such as shaving products, which have a short-lived moisturising or hydrating effect in the course of their application.  In his view, shaving products are not moisturising products “in the classical sense”.  He describes skin hydration as the amount of moisture in the outer layers of the skin and on the skin surface, while he describes skin moisturisation as the process of increasing skin hydration through the application of complex chemical agents. 

18. Dr Grove is of the view that the EEMCO guidelines are not suitable for assessing hydration during the shaving process, which is short-lived in application and effect. 

19. I accept the distinction, for the purposes of this case, between products which provide short-term hydration and products that moisturise.  I do not accept that experiments relied upon in these proceedings that did not conform to the EEMCO guidelines, in that the time of testing was less than 30 minutes, are to be regarded as irrelevant on that basis.

20. The parties differ on the relevant time in which to assess whether the Hydro Products have a hydrating effect during the shaving process.

21. Energizer conducted clinical tests at 5, 10 and 15 minutes after the completion of the rinsing step. 

22. P&G contends that the intervening step of rinsing the face confounds any extrapolation back to the time of the shaving process.  P&G submits that the presence of copious amounts of water invalidates the measurements taken by Energizer at 5, 10 and 15 minutes.  P&G says that the appropriate clinical tests should have been in accordance with the EEMCO guidelines, which require measurements to be made at 30 minutes after rinsing.  Otherwise, P&G says, the “extreme” hydrating events of initial wetting, the application of shaving cream (which is acknowledged to be hydrating), and the rinsing step render the tests effectively invalid or meaningless.

23. In the alternative, P&G submits that , as Energizer’s claim (as characterised by P&G) is that Hydro Polyox has a differential effect from other forms of polyox in  the period between rinsing and drying, 5 to 15 minutes is not the appropriate time period for measurement.  P&G points out that once men have rinsed their faces they do not wait 5 minutes in order to dry them.  It follows, P&G says, that Energizer has not carried out any clinical tests during the claimed hydration period.

24. Energizer’s case is, essentially, that Hydro Polyox is deposited on the skin by the use of the razor, from the gel reservoir that is placed above the blades.  That is, it is deposited after the blades have passed over the skin.  The Hydro Polyox adheres to the skin and withstands the rinsing stage, staying on the skin until removed by the process of drying.  That means, it contends, that measurements of the level of hydration at the 5, 10 and 15 minute time periods can be extrapolated back, not only to the time immediately post-rinse, but also to the time of deposit of the Hydro Polyox on the skin.  Professor Humbert endorses Dr Grove’s approach in testing a hydration effect during shaving by taking measurements shortly after shaving. 

25. In Professor Lavker’s opinion: 

    ·Hydro Polyox remains on the surface of the skin following rinsing with water.

    ·Following application to the skin, Hydro Polyox lubricates and transiently hydrates the skin.

    ·There is no fixed time post-application of a substance to assess skin moisture levels.

    ·Assessment of Hydro Polyox’s hydration effects, which are short-term or transient, necessitate measurements close to the cessation of the shaving process (for example, 0-15 minutes).

    ·Clinical studies conducted by cyberDERM, Energizer Personnel Care, Pro Panel and P&G demonstrate that after a short-term (5 to 15 minutes) exposure to Hydro Polyox, skin hydration values are increased.  He would expect that the hydration values would be even higher in the period 0 to 5 minutes after the application of Hydro Polyox during the shaving experience.

26. I accept the evidence from Energizer’s witnesses as to the validity of the experiments, the reasons why measurements taken from 5 to 15 minutes post-shave are relevant and the conclusions which may be drawn from the experiments.  Energizer has advanced a theoretical basis for increased hydration by Hydro Polyox based, in turn, on the characteristics of Hydro Polyox and supported by Professor Lavker’s opinion, which I accept.  P&G has not discredited, disproved or brought into question this mode of hydration.  On the theoretical basis so advanced, an increase in measured hydration that survives rinsing and occurs despite the presence of quantities of free water is explained by and referable to Hydro Polyox.

    The experimental results

    The P&G tests

27. As stated above, P&G carried out testing for hydration using a Corneometer.  There was no significant difference in the readings at 5, 10 or 15 minutes post-shave, nor at 1 hour or 4 hours post-shave.

28. P&G tested the Hydro 5 with and without the hydrating gel reservoir.  P&G observed high Corneometer readings with the hydrating gel reservoir at 3 out of 60 time points, being 5 to 15 minutes post shave.  Other testing showed a significant difference with higher Corneometer readings when the Hydro 5 was compared to the Gillette Fusion razor (Gillette Fusion).  P&G seek to explain these results by referring to:

    ·the lack of equilibration with ambient conditions;

    ·the lack of conformity with the EEMCO guidelines for time of testing;

    ·the measurement of water on the skin introduced by the shaving process rather than measurement of skin hydration; and

    ·a greater exfoliation effect on the skin with Hydro 5 than with Gillette Fusion.

    Otherwise no significant difference was observed.

29. As Energizer does not claim that there is any increased hydration beyond 15 minutes post-shave, many of the P&G tests were not ultimately relevant as they tested outcomes beyond this time frame. 

30. Dr Rawlings is firm in his opinion that the P&G studies, which he considers well designed, demonstrate that the use of the Hydro Products leads neither to an increase in the hydration of the skin during the shave nor to a long-term increase in hydration.  

31. Professor Lavker’s opinion is that the clinical studies conducted by P&G were, for the most part, designed to test the efficacy of a classical moisturiser, not of a transiently applied shaving product.  He also considers that Dr Rawlings approaches the evaluation of the Hydro Products as if they were said to contain classical moisturisers, that is, leave-on products.  As Professor Lavker considers the Hydro Products to be transient products of short-term duration, he is of the view that the level of hydration should be properly understood by using different coordinates.

32. Dr Grove criticises one of the P&G tests, the P&G Volar Forearm Study.  He says that the use of a moisturising shave balm in that test would mask any hydrating effects of the Hydro Polyox.  He also reworked the data to use readings unadjusted by P&G, on the bases that there was no explanation of the adjustments made, that they were not necessary because of existing controls and that, in his experience, the standard approach is to use unadjusted readings.  His analysis demonstrates that the P&G Corneometer values were significantly higher at 10 and 15 minutes post-shave for the intact Hydro 5 with the gel reservoir compared to the modified Hydro 5 without the gel.

33. Dr Grove also points out that in two of the P&G studies, the Split Face studies, participants were instructed to pat their faces dry immediately after shaving and before any of the instrumental measurements were taken.  P&G contends that such action is in accordance with the normal shaving process but Dr Grove says that the drying dramatically alters the skin’s hydration state and is not an appropriate step where hydration during the shaving process and before drying is being assessed.  He says that it is not surprising that no hydration effects were demonstrated in these studies.

34. Dr Grove also gives explanations for the P&G test results in which no increased hydration with Hydro Polyox was measured.  For example, measurements indicating less hydration where use of an intact form of the Hydro Products was compared to use of a form of the Hydro Products with an empty gel reservoir could be explained by more disruption to the SC with use of the empty gel reservoir than with the intact product, which released skin conditioning ingredients.  He also challenges the statistical basis for some of P&G’s conclusions.

35. Dr Grove was not challenged on his conclusions by cross-examination.

36. Professor Lavker concludes that the P&G clinical studies support the conclusion that the Hydro 5 Products, and therefore also the Hydro 3 Products, have a hydrating effect during the shaving process, based upon the short-term 5 to 15 minutes post-shave data.  He considers 1 and 4 hour post-shaving time points and the EEMCO guidelines to be irrelevant for a product that is not a traditional moisturiser, as understood within dermatology.  As to the earlier time points, in a comparison measured with a Corneometer of the bladeless Hydro 5 with and without an intact reservoir, Professor Lavker notes that at early time points the sites treated with gel were higher, particularly at 5 minutes post-shave.  Professor Lavker observes that the lack of statistically significant data may be explained by the limitations in sensitivity of the method of measurement and the lack of sensitivity at high levels of hydration.

    The Energizer tests

1. Dr Grove describes the methodology for the Energizer experiments which, based on his experience, was sound and proper.  He was not cross-examined to the contrary.  He took measurements at 5, 10 and 15 minutes post-shave which, he says, are the best times to determine or ascertain whether the skin is hydrated during the shaving process, not after it. He did not rub the surface of the skin dry to preserve any additional hydration effect.  He acknowledges that the SkiCon does not distinguish between water from the wet shaving environment and the hydration effect of Hydro Polyox but says that, as the skin dries out, hydration levels will tend to decrease less rapidly if the Hydro Polyox is acting as a humectant.  He also designed the experiments with suitable controls to test the differences attributable to the presence of Hydro Polyox.

2. Dr Grove’s conclusions from the experiments are that:

   ·Within the first 15 minutes after shaving, there is a significantly greater level of skin surface moisture associated with the Hydro 5 than with the Gillete ProGlide razor or the Gillette Fusion.  The differences are statistically significant at the 99% confidence level and the 5, 10 and 15 minute post-shave time points.

   ·The enhanced hydration is due to the humectant properties of the Hydro Polyox that is released from the gel reservoir during the shaving process.

   ·The scientific data support the conclusion that the Hydro Products hydrate the skin as one shaves.

   ·No statistically significant difference exists at the post-15 minute assessment interval, consistent with the hydration effect of Hydro Polyox being short-lived.

   · Hydro Polyox has the ability to be retained on the skin surface following the shaving experience.

3. Dr Coope-Epstein conducted a number of studies to understand the properties of polyox in the context of hydration.  She concludes that ‘due to the presence of [Hydro] Polyox, when the skin is wet, damp and drying as part of the shaving process, there will be a hydration effect’.One of those tests was a standard “skin feel analysis” which assessed that it took 5 rinses to remove Hydro Polyox residue from the arms of the participants.

4. External testing of the absorption of moisture from the atmosphere indicates to Dr Coope-Epstein that Hydro Polyox absorbs moisture from the atmosphere rapidly when the relative humidity is greater than 60%, as in a shower or bathroom environment. An experiment that she conducted on the water retention of Hydro Polyox led to the conclusion that Hydro Polyox has the ability to hold on to water, a characteristic of humectants.  This is evidenced by pure water showing an evaporation loss of 7% of water from a surface while Hydro Polyox only shows a loss of 4% of water, results consistent with water retention properties.

5. P&G contends that the Energizer experimental results are not scientifically sound.  This, P&G says, is because:

   ·the measurements were made at 5, 10 and 15 minutes after rinsing;

   ·the measurements were made in the presence of copious amounts of water;

   ·the skin did not have an opportunity to return to equilibrium after rinsing;

   ·the tests were not conducted in accordance with the EEMCO guidelines; and

   ·there were no controls for the possible effects of water, exfoliation and what it contends are the electrolytic properties of Hydro Polyox, each of which affect the reliability of the SkiCon, the instrument used by Energizer to measure the hydration of the skin.

6. Professor Lavker considers the clinical studies undertaken by and on behalf of Energizer to be well-conducted.  He also observes that many of the concerns expressed by Dr Rawlings as to the effect of exfoliation and desquamatisation of the SC would be accounted for by the controlled studies and the experiments conducted without blades.  He concludes that the shaving system of the Hydro Products has a hydrating effect, based on the following SkiCon data:

   ·In comparisons between the Hydro 5 and the Gillette Fusion without a polyox gel reservoir, there was a significantly greater level of surface skin hydration with the Hydro 5 at 5 minute post-shave.  The conductance levels for both systems were ‘dramatically lower’ at 10 minutes post-shave, although the Hydro 5’s conductance level was still higher.

   ·In comparisons between shaving with a bladeless Hydro 5 with and without the gel reservoir, greater hydration levels were noted for both but were significantly higher in the cartridge containing the Hydro Polyox at 5 minutes post-shaving.  The absence of blades would also minimise any effects of exfoliation.

7. Professor Humbert says that the tests carried out by Dr Grove are in accordance with recognised and well-established guidelines.  He notes that the experiments were conducted on the lower limbs and says that there is currently nothing to suggest that hydrating effects on one area of skin cannot be extrapolated to another area.  Professor Humbert concludes from Dr Grove’s experiments that:

   The hydrating effect of the [Hydro Products] tested cannot be denied.  Indeed, it is hydration that has been measured, under irreproachable methodological conditions, with a device validated and recognised by the profession.

8. Professor Humbert was only cross-examined on the relevance of the EEMCO guidelines.

   Conclusion

9. I accept that the evidence establishes that, by reason of the Hydro Polyox in the Hydro Products, there is an increase in hydration of the skin that lasts from the time of application of the Hydro Polyox until the face is dried after rinsing.  That is, the hydration effect exists for the duration of the shaving process.

   THE REASONABLE CONSUMER

10. As is evident from Campomar, the Court is required to identify the characteristics of the class of consumers to whom a representation is alleged to have been made in order to assess whether the representation has been conveyed.

11. It does not appear to be in dispute that the class of persons to whom the Hydro Materials is addressed is large, comprising males of shaving age.  However, the characteristics of the reasonable consumer are in dispute.

12. Energizer contends that the nature of the hypothetical consumer is crucial to understanding the relevant background and context in which the hypothetical consumer would understand the Hydro Materials.  Energizer points to the unchallenged evidence of Mr De Beer, Energizer’s Marketing Manager for Personal Care products, together with the evidence of Dr Coope-Epstein, Mr Andrews, a solicitor representing Energizer, and Ms Zupkovsky, the Research and Development Blade & Razor Claims Innovation Leader at P&G, in contending that the hypothetical reasonable consumer displays the following characteristics and awareness:

    ·He knows that the wet shaving process involves multiple steps including preparation, lathering up, shaving and moisturising and is aware that there are different products for each step.

    ·He is familiar with the distinction between pre-shave and post-shave moisturising products, as well as traditional “leave-on” cosmetic moisturisers.

    ·He is familiar with the use of the term “hydration” in connection with products which hydrate the body or skin, such as sports and soft drinks, and knows that the term does not refer only to moisturisers.  He knows that the image of water is synonymous with hydration rather than moisturising.

    ·He is aware that razors commonly incorporate features traditionally described as “comfort strips” to lubricate the skin in order to make shaving a more comfortable experience.

    ·He regards a new razor blade cartridge as expensive and is reluctant to change brands due to the “investment” made in the handle of his existing razor.  However, he is prepared to switch brands in response to technological innovations.

    ·Novel and interesting product names and eye-catching and appealing promotional campaigns incorporating elements of surprise may alert him to unexpected product innovations.

    ·He has a high familiarity with exaggerated claims being made in relation to wet shaving and other personal care products.

    ·He is familiar with the common use of exaggerated water techniques in advertisements, such as for soft drinks and sports drinks. 

    ·He has a high level of awareness of the Gillette brand, which he regards as synonymous with the razor product category.  Accordingly, he has a high level of familiarity with the branding, slogans, advertising and other promotion devices used in relation to Gillette, including the widespread use of “best”; for example “Best A Man Can Get”.

13. P&G contends that commercials for soft drinks and sports drinks are irrelevant to the characteristics of the reasonable consumer.  However, P&G does not directly address by evidence the specific characteristics of the reasonable consumer.

14. It may generally be accepted that the reasonable consumer has the characteristics for which Energizer contends.

    THE TRANSIENT HYDRATION REPRESENTATION

15. As stated earlier, P&G alleges that each of the Hydro Materials contravenes ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation. Energizer admits making the Transient Hydration Representation in each of the Hydro Materials.

16. I have found above that the evidence supports the contention that the Hydro Products have a hydrating effect on the user’s skin during the shaving process. However, P&G contends that, even if Energizer has established that the Hydro Products have a hydrating/moisturising effect on the user’s skin during the shaving process, Energizer has nevertheless contravened the relevant provisions of the ACL by making the Transient Hydration Representation because the hydrating effect of the Hydro Products on the user’s skin is de minimis.

17. This raises two issues:

    1.Do the existing pleadings in these proceedings require that the hydrating/moisturising effect must be greater than de minimis? 

    2.If so, does the evidence support a hydrating/moisturising effect that is greater than de minimis?

18. It is convenient to deal with these issues separately.

    The pleadings

19. Energizer contends that it is only necessary for it prove that there is a moisturising/hydrating effect and that the extent of such an effect is not part of the case brought by P&G.  Energizer relies on P&G’s Second Further Amended Statement of Claim, which relevantly states:

    13.[Through the Hydro Material Energizer has] represented to the public, including to consumers and potential consumers of the [Hydro] Products… that:

    (a)the use of the [Hydro] Products will have a moisturising effect on the user’s skin;

    (b)the benefits of the increased moisturisation or hydration will continue after shaving;

    (c)the hydration effect claimed by [Energizer] will not be a transitory effect during shaving;

    (d)the hydration effect claimed by [Energizer] will not be limited to the lubrication of the shaving process;

    or some of those representations.  (The representations set out in sub-paragraphs (a) to (d) are collectively called the Hydration Representations).

    …

    17.The Hydration Representations, and each of them, are and were false and misleading and deceptive in that:

    (a)the use of the [Hydro] Products will not generally, or at all, have a moisturising effect on the user’s skin;

    (b)[deleted]

    (c)the user of the [Hydro] Products will not experience a moisturising effect that will be of a degree sufficient to have a significant beneficial effect on the user’s skin;

    (d)any moisturising effect on the cells of the user’s skin which does occur will be insignificant and transitory and will not continue for any significant period after the conclusion of the shaving process;

    (e)the Hydrating Gel Reservoir and the Lubricating Gel Reservoir components of the [Hydro] Products have substantially identical ingredients, which principally provide lubrication during the shaving process;

    (f)there is no, or no reasonable and adequate, scientific foundation for making the Hydration Representations;

    (g)the ingredients incorporated by [Energizer] into the Hydrating Gel Reservoir and the Lubricating Gel Reservoir are not physically and chemically capable of moisturising or hydrating the face of the user in the manner claimed by [Energizer] in the Hydration Representations to any significant or measurable degree.

20. Energizer says that P&G’s case has been pleaded on the basis that the only representations which arise in respect of the hydrating properties of the Hydro Products are those pleaded in [13] of P&G’s Second Further Amended Statement of Claim.  Energizer says that there is a fundamental disconformity between the representations pleaded in [13] and the pleaded facts alleged to give rise to the falsity of those representations in [17] of P&G’s Second Further Amended Statement of Claim.  Energizer submits that the pleaded facts in [17] cannot establish the falsity of the representation in [13(a)] because each of the pleaded facts in [17] allows for the Hydro Products to have “a” moisturising effect (with the exception of [17(f)], which has no bearing at all).  Energizer points out that P&G has not alleged that Energizer has made a representation with respect to the Hydro Products having a “significant beneficial effect”. 

21. Energizer says that if prior to the hearing the parties had interpreted the pleading in the manner for which P&G now contends, then the evidence on the extent of any hydration effect would have been far more extensive than a simple calculation performed in Dr Rawlings’ reply report.  Further, Energizer says that it would have adduced evidence on this issue. 

22. However, at a case management conference on 16 June 2011, the parties agreed to delete the statement that ‘the increased moisturisation or hydration experienced by the user will be beneficial to the user’s skin’ from [13] of the Second Further Amended Statement of Claim.  This was on the understanding between the Court and the parties that a representation that the use of the Hydro Products will have a moisturising effect on the user’s skin, as pleaded in [13(a)], necessarily involves a representation that the increased moisturisation or hydration experienced by the user will be beneficial to the user’s skin. 

23. Accordingly, P&G submits, and I accept, that if the representation in [13(a)] is made, it is implicit that the hydration effect will be greater than de minimis. That is, the pleadings require a hydration effect that is greater than de minimis. This means that if P&G were able to establish that the hydration effect of the Hydro Products is de minimis, Energizer would have contravened ss 18(1) and 29(1)(g) of the ACL in making the Transient Hydration Representation.

    Is the hydrating/moisturising effect greater than de minimis?

24. Professor Humbert says that it is probable that hydration during the shaving process reduces the sensations of pricking or pulling the skin.  He says that, for him, the essential issue as to the benefit of hydration is that the use of a razor does not lead to skin which is in a drier state than before shaving.

25. However, P&G approached the issue of whether the hydration effect is greater than de minimis by relying on an assessment of the quantity of any hydration effect.

26. Dr Rawlings calculates the amount of Hydro Polyox that is applied to the face and neck during each shave.  Based on a gel reservoir lasting at least 10 shaves and the shaving surface area of the face and neck being on average 296 cm², Dr Rawlings calculates that approximately 0.025 mg/cm² of hydrating gel is deposited on the face and neck during each shave.  Dr Rawlings concludes that if the moisturising ingredients are only 0.04% of the formulation, this equates to 0.001 mg/cm² of moisturising ingredient being applied.  Dr Coope-Epstein disagrees with Dr Rawlings’ calculation to the extent that it relies on the moisturising ingredients being only 0.04% of the formulation.  She says that the correct concentration of the moisturising ingredient on the skin using Dr Rawlings’ calculation is 0.025 mg/cm².  In his reply evidence, Dr Rawlings says that, accepting Dr Coope-Epstein’s calculation and based on the Energizer experimental data, the maximum increase in hydration effected by the Hydro Polyox would be in the order of 1.3% of the natural level of hydration of the SC in the context of a dry skin surface. 

27. Dr Rawlings also gives evidence on the relative effect of the Hydro Polyox in a wet shaving context.  He calculates that the contribution to the level of hydration of the skin from other sources of water in the shaving process, such as the wetting of the skin and the application of shaving cream, would be 1000 times greater than that of Hydro Polyox.

28. Professor Lavker does not challenge Dr Rawlings’ estimates of the relative effect of the presence of Hydro Polyox.  He accepts that they are ‘probably well within the ballpark’.

29. P&G contends that Professor Lavker’s evidence taken as a whole does not support the proposition that the Hydro Products have a material hydrating effect, but only that that they have a hydrating effect.  P&G relies on Dr Rawlings’ and Professor Lavker’s evidence to submit that even if the evidence establishes that the Hydro Products have a hydrating effect, the effect is ‘inconsequential’ and cannot, in a relative sense, support the claims made by Energizer in the Hydro Materials.  P&G says that the Court’s task is to compare what hydration effect is conveyed in the Hydro Materials relative to the factual findings on the hydration effect of the Hydro Products and to determine whether or not what is conveyed is misleading.

30. Energizer submits that it cannot be suggested that there is a ‘magical number’ below which any hydration effect is de minimis and above which any hydration effect is real.  Energizer says that P&G has not pointed to any industry standard, guideline or practice which indicates a quantitative benchmark for what constitutes a hydrating effect and that even if the EEMCO guidelines were applicable, they do not assist. 

31. Energizer adds that where witnesses such as Dr Grove and Professor Lavker gave evidence that a hydration effect exists, it is plain that this was in the context of a real hydration effect.  It cannot, Energizer says, be stated that the expert evidence was to the effect that ‘I’m saying there’s a hydration effect because I believe that technically I can but really I actually think that there is no real hydration effect’.  Energizer points out that this was not put to Professor Lavker in cross-examination.  Energizer also emphasises that the results in the studies indicate the existence of a hydration effect at statistically significant levels, which witnesses such as Professors Lavker and Humbert and Drs Grove and Thornton, the latter of whom is a statistician who gave evidence on behalf of Energizer, interpreted as demonstrating a significant hydration effect. 

32. Further, Energizer contends, although the reasonable consumer would understand from the Hydro Materials that the Hydro Products have a hydrating effect on the user’s skin, he would not adopt a quantitative benchmark for this hydration effect.  Energizer says that if the reasonable consumer was thinking anything at all about the extent of the hydrating effect it would be that the effect is more than de minimis.

33. P&G contends that the Court does not require evidence of a ‘magical number’ or an industry benchmark for hydration because the relevant class of consumers is not industry scientists.  The key consideration, P&G submits, is the message conveyed by the Hydro Materials to the class of consumers.  P&G contends that the question of whether the hydration effect is de minimis is to be measured against a reasonable consumer’s understanding of the Hydro Materials.  P&G says that the reasonable consumer will not think that the level of hydration indicated in the evidence accords with that which is represented by the Hydro Materials, which is that the Hydro Products cause an increase in hydration that is beneficial, material and worthwhile.  P&G emphasises that a reasonable consumer would not change his razor for a 1.3% change to the hydration level of the skin or the addition of hydration equivalent to 1/1000^th of the water already present on the face during the shaving process.

    Conclusion

1. In the context of the Hydro Online Advertisement as a whole, the Long-Lasting Hydration Representation is not made.

   The Best Shave Representation

2. The “best shave for your skin” claim appears on the Products Page by way of the image containing the front of the Hydro 5 Packaging and the front of the Hydro 5 Replacement Cartridges Packaging.  There is no reference to the “best shave for your skin” claim on any of the other pages of the Hydro Online Advertisement. 

3. For the same reasons as those set out in relation to the Daily Telegraph Advertisement at [200] above, the “best shave for your skin” claim as used in the Hydro Online Advertisement is mere puffery. The Hydro Online Advertisement does not make the Best Shave Representation.

   The Facebook Page

4. The Facebook Page contains a series of tabs for the viewer to select, including “Info” and “Products”.  Irrespective of which of the tabs the viewer has selected, the left-hand side of the page contains, inter alia, the label “Schick HYDRO” and a link to the Hydro Online Advertisement.

5. If the viewer selects the “Info” tab, he is taken to a page that primarily contains text (the Facebook Info Page).  This is annexure Z.  The Facebook Info Page relevantly contains:

   ·Another link to the Hydro Online Advertisement.

   ·Under the description “Company Overview”, the statement: ‘From Energizer Holdings comes a bold new razor for its Schick brand.  The Schick Hydro razors revolutionize men’s shaves by protecting and caring for skin while it removes hair thanks to many first to market technologies, such as the… Advanced Hydrating Gel Reservoir.’

   ·Under the description “Mission”, the statement: ‘Every attribute of the Schick Hydro razors work together as a complete skin comfort system to reduce irritation and provide soothing hydration.’ 

6. If the viewer selects the “Products” tab, he is taken to a page (the Facebook Products Page) which contains a series of images and text.  This is annexure AA.  The Facebook Products Page relevantly includes:

   ·An image with a blue background and water droplets that contains the text “IT’S LIKE A BLAST OF HYDRATION TO YOUR FACE”, above which, in smaller typeface, is the text “FREE YOUR SKIN”, and below which is displayed the front of a series of shaving gels and, in descending order of size, the front of each of the forms of the Packaging.

   ·The heading “2 new razors… Your old way of shaving just got blasted.”  Under this heading, the following statements are made:  ‘Schick Hydro is more than just a new razor – it’s a complete overhaul of the shaving process itself.  We rebuilt the razor from the ground up… with one goal in mind: reducing irritation and taking care of your skin.  The state-of-the-art Schick Hydro 5 razor hydrates and protects your skin as you shave with a breakthrough hydrating gel reservoir and built-in skin guards.’

   ·Under the heading “Overview of New Schick Hydro Razor Features”, there is a subheading entitled “Advanced Hydrating Gel Reservoir”, which relevantly states:  ‘The Schick Hydro blade cartridge uses proprietary technology to pack advanced lubrication – with soothing aloe vera and vitamin E – into a Hydrating Gel Reservoir that reinvents the lubricating strip that is found on most razors today.  Men typically shave away their shave gels with the first stroke of their razor.  The lubrication delivered by Schick Hydro adds hydration in multiple strokes, providing lubrication from start to finish and reducing irritation.’  Alongside this text is the Magnified Hydro 5 Image.

   The Long-Lasting Hydration Representation

   P&G submissions

7. P&G points to:

   ·the statement on the Products Info Page that “IT’S LIKE A BLAST OF HYDRATION TO YOUR FACE” and repeats its submissions on the variant of this claim at [193] above.

   ·the statement on the Products Info Page that “the lubrication delivered by Schick Hydro adds hydration in multiple strokes, providing lubrication from start to finish”.  P&G points out that lubrication is stated to occur from start to finish, but no duration is given for the hydration effect.

   ·the subheading “Advanced Hydrating Gel Reservoir” and relies on its submissions at [152] above. P&G also relies on the statements made beneath that subheading as conveying to the reader that there is some significant or beneficial level of improvement in the hydration or moisturisation of the face.

8. P&G also says that some of the explanation provided in the text of the Facebook Page is in smaller script and does not necessarily take away from the message made by the shorter, larger sized claims that are also made.

   Energizer submissions

9. Energizer repeats its submissions on “blast of hydration” at [193] above.

   Consideration

10. My comments about the approach to interpreting the Schick Online Advertisement at [242]-[244] above are also generally applicable to the Facebook Page.

11. Although it is necessary to consider the contents of the Facebook Page as a whole, including the contents of the various tabs, P&G seems to rely, in particular, on the contents of the Facebook Products Page.

12. I have already considered the meaning of the statement “blast of hydration” (or its variants) at [197] above. The same meaning applies here.

13. The “blast of hydration” claim is the dominant feature of the Facebook Products Page. Although the text below includes the statement that the Hydro 5 “hydrates and protects your skin as you shave”, this is a statement made in one of five paragraphs of text and has not been given the same emphasis as the “blast of hydration” claim. Further, my comments on the effect of the claim “hydrates your skin as you shave” at [219] above may not be applicable to the same extent in considering the Facebook Page. This is because the sentence containing the claim states that the Hydro 5 “hydrates and protects your skin as you shave with a breakthrough hydrating gel reservoir and built-in skin guards”. The statement, which includes references to skin protection and “Skin Guards”, confines the “hydrates… as you shave” claim, as used on the Facebook Page, to the shaving process itself. This is reinforced by the subsequent statement that “Schick Hydro Shave Gels prepare your skin for a smooth shave and help take care of it afterwards”, which indicates that another product is necessary for positive, post-shave effects on the skin.

14. Of the three paragraphs under the heading “overview of new Schick Hydro razor features”, two of them, “Skin Guards” and “Flip Trimmer”, are clearly referable to the shaving process. The third paragraph has the header “Hydrating Gel Reservoir”, which I have considered at [158]-[159] above. Although this paragraph contains references to aloe vera and vitamin E, my view, contrary to P&G’s submission, is that the statement “the lubrication delivered by Schick Hydro adds hydration in multiple strokes, providing lubrication from start to finish” provides further support for the view that the hydration effect represented on the Facebook Page is confined to the shaving process. P&G says that this claim states that lubrication (not hydration) is provided from “start to finish”, which means that the implication is that the hydration lasts beyond that discrete timeframe. However, this approach is too literal. The reasonable consumer would likely understand from this claim that the hydration is confined to the shaving process, especially in light of the first part of the sentence, which links the lubrication with hydration effects.

15. Considered as a whole, the Facebook Page does not make the Long-Lasting Hydration Representation.

    The Best Shave Representation

16. The “best shave for your skin” claim is made on the Facebook Products Page by way of the image of the front of the Hydro 5 Packaging and the Hydro 5 Replacement Cartridges Packaging.  It is not prominent and is unlikely to be read. 

17. P&G submits that the Facebook viewer would click on the hyperlink to the Hydro Online Advertisement, which is present in the text of the Facebook Products Page and, although not particularly prominently, along the left-hand side of the Facebook Page.  Whether or not the reasonable consumer is likely to continue to the Schick Online Advertisement that page does not make the Best Shave Representation and does not assist P&G’s case.

18. For the same reasons as those set out in relation to the Daily Telegraph Advertisement at [200] above, the use of the “best shave for your skin” claim in the Facebook Page is mere puffery and does not constitute the making of the Best Shave Representation.

    The Television Advertisements

19. The 30 Second Television Advertisement can be summarised as follows:

    ·0 to 4 seconds – vision depicting a boxer being hit on the side of the head by another boxer, with the boxing glove exploding into a cascade of water at the point of contact.

    ·4 to 9 seconds – vision depicting a woman and man in their underwear engaging in a pillow fight on a bed.  The woman hits the man with a pillow, which explodes into a cascade of water at the point of contact.

    ·9 to 13 seconds – vision depicting a football player heading a football, which explodes into a cascade of water at the point of contact.  The voice-over states: ‘It’s like a blast of hydration to your face.’

    ·13 to 17 seconds – vision depicts a droplet of water falling on and then dissolving into the Hydro 5.  Written text appears stating “Schick Hydro 5”.  The voice-over states: ‘New Schick Hydro.  Water-activated gel that hydrates your skin as you shave.’

    ·17 to 23 seconds – vision depicting blades and then a razor against skin.  Written text appears stating “lubrication strips” and then “dramatisation”.  The voice-over states: ‘And lasts up to 2x as long as ordinary strips while five blades with skin guards smooth the skin to reduce irritation.’

    ·23 to 26 seconds – vision depicting a man looking into a mirror and wiping a towel against his face, with the towel exploding into a cascade of water at the point of contact.  The voice-over states: ‘It’s the best shave for your skin.’

    ·26 to 30 seconds – vision depicting the front of the Hydro 5 Packaging alongside a Schick Hydro Shaving Gel, which is adjacent to the written text “FREE YOUR SKIN”.  Below this a reference to the Facebook Page.  The voice-over states: ‘The New Schick Hydro.  Free your skin.’

20. The First 15 Second Television Advertisement can be summarised as follows:

    ·0 to 3 seconds – vision depicting a boxer being hit in the side of the head by another boxer, with the boxing glove exploding into a cascade of water at the point of contact.  The voice-over states: ‘It’s like a blast of hydration.’

    ·3 to 9 seconds – vision depicting a droplet of water falling on and then dissolving into the Hydro 5, accompanied by the written text “Schick HYDRO 5”.  This is followed by vision depicting a razor against skin (accompanied by the written text “lubrication strips”) and then blades against skin (accompanied by the written text “dramatisation”).  During this vision, the voice-over states: ‘The new Schick Hydro.  Water-activated gel hydrates your skin and skin guards reduce irritation.’

    ·9 to 12 seconds – vision depicting a man looking into a mirror and wiping a towel against his face, with the towel exploding into a cascade of water at the point of contact.  The voice-over states: ‘It’s the best shave for your skin.’

    ·12 to 15 seconds – vision depicting the front of the Hydro 5 Packaging alongside a Schick Hydro Shaving Gel, which is adjacent to the written text “FREE YOUR SKIN”.  Below this a reference to the Facebook Page.  The voice-over states: ‘Schick Hydro.  Free your skin.’

21. The Second 15 Second Television Advertisement can be summarised as follows:

    ·0 to 3 seconds – vision depicting a woman and man in their underwear engaging in a pillow fight on a bed.  The woman hits the man with a pillow, which explodes into a cascade of water at the point of contact.  The voice-over states: ‘It’s like a blast of hydration.’

    ·3 to 9 seconds – vision depicting a droplet of water falling on and then dissolving into the Hydro 5, accompanied by the written text “Schick HYDRO 5”.  This is followed by vision depicting a razor against skin (accompanied by the written text “throughout each shave”) and then blades against skin (accompanied by the written text “dramatisation”).  During this vision, the voice-over states: ‘Schick Hydro.  Water-activated gel hydrates your skin and skin guards reduce irritation.’

    ·9 to 12 seconds – vision depicting a man looking into a mirror and wiping a towel against his face, with the towel exploding into a cascade of water at the point of contact.  The voice-over states: ‘It’s the best shave for your skin.’

    ·12 to 15 seconds – vision depicting the front of the Hydro 5 Packaging alongside a Schick Hydro Shaving Gel, which is adjacent to the written text “FREE YOUR SKIN”.  Below this a reference to the Facebook Page.  The voice-over states: ‘Schick Hydro.  Free your skin.’

22. There is background music for the duration of each of the Television Advertisements.

    The Long-Lasting Hydration Representation

    P&G submissions

23. P&G emphasises that the events that take place in the Television Advertisements, including a boxing match, bedroom pillow fight and a football match, are far removed in time and place from the act of shaving.

24. P&G repeats its submission at [193] above concerning the import of the statement “it’s like a blast of hydration”.

25. P&G repeats its submission at [212] above on the effect of the statement “hydrates your skin as you shave” in the 30 Second Television Advertisement.

    Energizer submissions

26. Energizer repeats its submission at [214] above on the effect of the statement “hydrates your skin as you shave” in the 30 Second Television Advertisement. Energizer emphasises that the use of this voice-over statement expressly makes it clear that the hydration benefit is limited to the duration of the shaving process.

27. Energizer repeats its submission at [195] above concerning the import of the statement “it’s like a blast of hydration”.

28. Energizer repeats its submission at [153] and [215] above concerning the effects of exaggerated, ephemeral water images.

    Consideration

29. As in the Zoo Weekly Advertisements, the Television Advertisements depict men in scenes that are not normally associated with the shaving environment. However, the Television Advertisements differ from the Zoo Weekly Advertisements in that these images appear either before, simultaneously with, or after the voice-over states “it’s like a blast of hydration to your face”. I considered the “blast of hydration” claim at [197] above and found that it would convey to the reasonable consumer that the hydrating effect is transient and confined to the shaving process. As I stated earlier, the reasonable consumer would appreciate that exaggeration is commonly used in the advertising of men’s razor products. Given the way in which the reasonable consumer would understand the “blast of hydration” statement, the scenes of the boxing glove, pillow, football or towel exploding would be understood, in context, as providing exaggerated visual images to reinforce the “it’s like a blast of hydration to your face” claim.

30. The references to the Facebook Page do not assist P&G’s case, given my finding that the Facebook Page does not make the Long-Lasting Hydration Representation and in light of my comments at [123] above.

31. Therefore, the First 15 Second Advertisement and the Second 15 Second Advertisement do not make the Long-Lasting Hydration Representation.

32. The 30 Second Advertisement also contains the “hydrates your skin as you shave” claim.  Although the claim, taken alone, implies that the hydration effect is not confined to the shaving process, it needs to be considered in context (see [219]-[220] above).  In the 30 Second Advertisement, the “hydrates your skin as you shave” claim is made by the voice-over in a tone identical to that used in the rest of the commercial.  The statement occupies approximately 1-2 seconds out of the 30 seconds.  The statement is made at the same time as images of a droplet of water falling onto a razor. 

33. In the context of the reasonable consumer’s understanding of the claim “it’s like a blast of hydration to your face” and the accompanying exaggerated visual images, the “hydrates your skin as you shave” statement does not alter the effect of these other aspects of the 30 Second Television Advertisement.  Therefore, the 30 Second Television Advertisement does not make the Long-Lasting Hydration Representation.  

    The Best Shave Representation

34. The “best shave for your skin” claim occurs at the end of each of the Television Advertisements in a voice-over using a tone identical to that used in the rest of the Television Advertisements.  It follows statements referable to skin-related claims.  It is made in the context of dramatic, visual images that are clearly exaggerated as a means of describing the shaving process. 

35. I have already considered the reasonable consumer’s general understanding of the “best shave for your skin” claim above at [168] and [172], which is to the effect that the claim would not, of itself, be regarded as a statement of fact or comparative claim.

36. In the context of the Television Advertisements as a whole, there is nothing to suggest that the consumer’s understanding of the “best shave for your skin” claim would be displaced.  In each of the Television Advertisements, the “best shave for your skin” claim is clearly puffery and does not involve the making of the Best Shave Representation.

    The YouTube Page

37. The YouTube Page features a header labelled “Epic Hydration”, a visual presentation and text.  In summary, the visual presentation contains:

    ·0 to 6 seconds – vision depicting a boxer being hit in the side of the head by another boxer, with the boxing glove exploding into a cascade of water at the point of contact.  This cascade of water is not limited to the area of the YouTube Page which contains the presentation, but instead encompasses other parts of the YouTube Page.

    ·6 to 10 seconds – vision depicting a woman and man in their underwear engaging in a pillow fight on a bed.  The woman hits the man with a pillow, which explodes into a cascade of water at the point of contact.  Again, this cascade of water is not limited to the area of the YouTube Page which contains the presentation, but instead encompasses other parts of the YouTube Page.

    ·10 to 19 seconds – a still shot of the front of the Hydro 5 Packaging alongside a Schick Hydro shaving gel and the text “FREE YOUR SKIN”, below which is a reference to the Facebook Page.  Beneath this image is a pool of water which has the effect of appearing three-dimensional.  The still shot (and the video presentation) appear to drop from the space allocated to it on the YouTube Page and float from side to side in the pool of water.

    There are various noises akin to water splashing during the video presentation.

    P&G submissions

38. P&G repeats its submission that the events depicted in the presentation on the YouTube Page are far removed in time and place from the act of shaving (see [209] above).

    Energizer submissions

39. Energizer repeats its submissions at [153] and [215] above concerning the effects of exaggerated, ephemeral water images.

    Consideration

40. The visual presentation on the YouTube Page does not contain any express hydration claim. Given that the viewer would likely be interacting with the YouTube Page on a computer or mobile device, the still image of the front of the Hydro 5 Packaging in the visual presentation is too small for the viewer to be able to decipher the written text it contains.

41. The only clear reference to any hydrating effect at all on the YouTube Page is the statement “epic hydration” above the visual presentation.

1. In the absence of any relevant claims, the presence of exaggerated water imagery and the depiction of events removed from the act of shaving convey little meaning to the consumer. 

2. The YouTube Page does not make the Long-Lasting Hydration Representation.

   CONCLUSION

3. Energizer does not contravene ss 18(1) and 29(1)(g) of the ACL by making the Transient Hydration Representation.

4. With the exception of the Zoo Weekly Advertisements, the Hydro Materials do not make the Long-Lasting Hydration Representation. By making the Long-Lasting Hydration Representation in the Zoo Weekly Advertisements, Energizer contravenes ss 18(1) and 29(1)(g) of the ACL.

5. With the exception of the Schick Online Advertisement, the Hydro Materials do not make the Best Shave Representation. As stated above at [11], whether Energizer contravenes ss 18(1) and 29(1)(g) of the ACL by making the Best Shave Representation in the Schick Online Advertisement is not for determination in these reasons.

I certify that the preceding three hundred and seventeen (317) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       29 November 2011

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