Procter & Gamble Australia Pty Ltd v Energizer Australia Pty Ltd

Procter & Gamble Australia Pty Ltd (P&G) brought an action against Energizer Australia Pty Ltd (Energizer) for false and misleading representations in relation to the hydrating effects of certain wet shaving products. The court was required to determine whether Energizer's promotional materials breached sections 18(1) and 29(1)(g) of the Australian Consumer Law (ACL) by claiming that its Hydro Products have a hydrating effect on the skin of users during the shaving process and whether the hydrating effect was greater than de minimis. Additionally, the court needed to assess if Energizer had represented that its products provide the best shave in comparison to other products and whether such claims constituted mere puffery.

The court found that Energizer did make representations in its promotional materials that its Hydro Products have a hydrating effect on the user’s skin during the shaving process. The court relied on expert evidence to establish that there is indeed an increase in skin hydration that lasts from the application of the Hydro Polyox until the face is dried after rinsing. The court also determined that the reasonable consumer, who is a male of shaving age with a high level of familiarity with exaggerated claims in wet shaving products, would interpret these representations as conveying a significant hydrating effect rather than a mere transitory one. The court concluded that these representations were misleading and deceptive, as the hydrating effect, while present, was transitory and of a de minimis nature. Furthermore, the court found that claims regarding the Hydro Products providing the best shave were not mere puffery but were substantiated by the evidence presented.

The court ordered that the parties submit proposed agreed orders by a specified date, with an alternative requirement for each party to submit their proposed orders if agreement could not be reached. The court also allowed for short written submissions if the parties chose to accompany their proposed orders with them.