Re Gault; Gault v Law

[1981] FCA 167

Re: COLGATE-PALMOLIVE PTY. LIMITED
And: REXONA PTY. LIMITED (1981) 58 FLR 391
No. G121 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - application for interlocutory injunctive relief - respondent produced new "AIM" toothpaste containing Citraden - whether claims for AIM and Citraden to be viewed in isolation or as whole - whether such claims represent that Citraden reduces decay or that AIM is better than other toothpastes in reducing decay - whether the advertising represents to the public that the claims have been scientifically verified - balance of convenience - whether damage to applicant relevant - whether advertising was approved of by statutory bodies - whether harm to consumer shown - necessity for scientific substantiation of claims - whether applicant delayed unduly - whether undertakings as to damages adequate - effect of interlocutory injunction on advertising, manufacture and distribution - likely effect of refusal of injunctive relief - relevance of public health - relevance of interests of other manufacturers in the same field.

Trade Practices - Misleading or deceptive conduct - Advertising campaign for new toothpaste - Advertisements making scientific claims - Whether advertising represented that claims had been scientifically verified - Whether harm to consumer shown - Whether undertaking as to damages adequate - Effect of interlocutory injunction on advertising, manufacture and distribution - Likely effect of refusal of injunctive relief - Relevance of public health - Relevance of interests of other manufacturers - Trade Practices Act 1974 (Cth), ss. 52, 53, 55.

HEADNOTE

The applicant held sixty per cent of the toothpaste market in Australia. The respondent sought to capture ten to twenty per cent of the Australian toothpaste market. The respondent commenced a massive advertising campaign to obtain a market share for a new toothpaste known as "Aim". Aim toothpaste included an ingredient known as "citraden". The applicant claimed that the respondent had been guilty of false, misleading or deceptive conduct by its advertising of Aim. It sought interlocutory injunctions pursuant to ss. 52, 53 (a), (b), (c) and 55 of the Trade Practices Act 1974.

Held: Interlocutory injunctions should be granted for the following reasons: (1) The applicant had established a prima facie case of false, misleading or deceptive conduct in that the court was satisfied that the respondent had made false claims in its advertising falling within one or more of the following categories - that Aim with citraden reduced decay in teeth or that Aim was better than other toothpastes in reducing decay.
Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968), 118 CLR 618; World Series Cricket Pty. Ltd. v. Parish (1977), 16 ALR 181; Transport Workers' Union of Australia (New South Wales Branch) v. Leon Laidely Pty. Ltd. (1980), 43 FLR 168, referred to.

(2) In considering the balance of convenience, interlocutory injunctions should be granted because: (a) It is not correct to say that the only relevant interests to be considered at the stage of interlocutory relief are those of the respondent and consumers, and that any damage to the applicant is irrelevant. Commercial Bank of Australia Ltd. v. Insurance Brokers Association of Australia (1977), 16 ALR 161, referred to. (b) There is no inconsistency between the consumer protection sections of the Trade Practices Act (Pt V) and the court considering that damage is likely to be suffered by the applicant. (c) Notwithstanding that all statutory approvals had been obtained prior to the advertising campaign and the absence of evidence that Aim caused positive harm, the material relied upon by the respondent to substantiate its claims were substantially unpublished reports and tests. Until claims that had been made in the advertising material had been established by tests capable of scientific verification, they should not be made. (d) Though there might be difficulties in assessing damages if the respondent were successful at trial, this is no reason for refusing the injunction. (e) The public interest must be taken into account. Consumers cannot verify the claims made by the respondent. This weighs heavily in favour of granting an interlocutory injunction once a prima facie case has been established. Firestone Tire and Rubber Company v. Federal Trade Commission (1973), 481 FR 246, referred to. (f) Also to be taken into account is the fact that this is an issue involving public health and safety and that the respondent may well harm other small manufacturers by the conduct of its advertising campaign even if it makes no effect upon the market share held by the applicant. (g) In favour of the respondent the court considered the conduct of the respondent in complying with the requests of the Department of Health at substantial cost to itself and abandoning a claim that "Aim is fifty to ninety per cent more effective than Australia's best-known toothpaste in slowing down the growth of plaque between brushings" and further that any interlocutory injunction could cause the respondent to rewrite its advertising campaign completely to which it would then be unlikely to return, if, after the trial of the action, it proved to be successful in its defence.

In all the circumstances interlocutory injunctions should be granted.

HEARING

Sydney, 1981, September 21-25, 30. #DATE 30:9:1981

APPLICATION.

Application for interlocutory injunctions.

The facts are set out in judgement below.

J. R. T. Wood Q.C., B. W. Collins and N. Francey, for the applicant.

R. A. Conti Q.C. and M. F. Holmes; R. J. Burbridge Q.C. and L. Katz, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Stephen Jaques & Stephen.

Solicitor for the respondent: W. O. Astridge.

D. LEVIN

ORDER

1. The respondent by itself its servants and agents be restrained until the hearing of the proceedings or further order, in trade or commerce, from:

A. displaying or otherwise communicating or causing to be displayed or otherwise communicated in respect of the toothpaste AIM any promotional material, radio or television commercials, press or magazine advertisements or information leaflets containing any statements or representations to the effect that: OR

B. displaying or distributing or causing to be displayed or distributed in respect of the toothpaste AIM any toothpaste tubes or packaging containing any statements or representations to the effect that:

(i) AIM toothpaste or the ingredient citraden constitutes an innovation or scientific breakthrough;

(ii) AIM toothpaste has been proven by scientific trials to be superior in performance to other Australian toothpastes;

(iii) AIM toothpaste, by reason of the ingredient citraden has a clinical or therapeutic utility and by reason of the inclusion of such ingredient is beneficial to dental health;

(iv) AIM toothpaste, by virtue of the ingredient citraden, has been proved by scientific or clinical evaluation or by reference to scientific literature to have an efficacy in reduction of plaque or the regrowth of plaque or to have a clinical or therapeutic utility; and

(v) AIM toothpaste has the approval of the dental profession.

2. The foregoing orders be stayed up to and including 16 October 1981 in relation only to AIM toothpaste tubes and AIM toothpaste packaging (in the form of Exhibit 8) distributed for sale or resale subject to observance of the following condition: -

the information leaflet (Exhibit A (part)) be removed from the said packaging prior to display or distribution of the toothpaste and packaging and not being displayed or distributed in conformity with the said orders;

3. The proceedings be stood over until 16 October 1981 for the purposes of dealing with the respondent's intended application for an extension of the said stay.

4. Further order that the respondent file and serve by 4.00 p.m. on Monday 12 October 1981 the affidavits upon which it will rely in support of its application for the said extension.

5. The respondent keep proper records of the quantitites of the said toothpaste tubes and packages hereafter manufactured and/or distributed until further order.

6. Either party have liberty to apply in the event of any difficulties arising with respect to the working out of the foregoing orders and generally.

7. The costs of the interlocutory proceedings to date be costs in the proceedings.

JUDGE1

This is no battle between David and Goliath. The contestants are two corporate giants: the applicant, Colgate-Palmolive Pty. Limited ("Colgate") and the respondent, Rexona Pty. Limited ("Rexona") a member of the Unilever Group. However, Colgate resembles David in some respects: it has cast off the traditional dress and weapons of war, and entered the lists as the professed champion, not of the deity, but of the public interest. The prize is the $50 million a year toothpaste market in Australia.

Colgate enjoys about 60% of the Australian toothpaste market with its three products: Colgate Fluoride - the market leader, Colgate Dental Cream and Ultrabrite.

About 25% of the market is held by Beecham (Australia) Pty. Limited which sells Macleans and Aquafresh toothpastes. Bristol-Myers Co. Pty. Limited has about 4% of the market with Ipana toothpaste. The rest of the market (about 11%) is shared between a number of companies.

Pepsodent and Check toothpastes are produced by a Unilever company but they enjoy only between 1.5 and 2.0% of the market.

The respondent has entered the market with a toothpaste called "AIM". It is made in New Zealand by a Unilever company and marketed in Australia by Rexona. It is the result of four years of preparation, including research involving expenditure of about one million dollars. Aim toothpaste has been sold throughout Australia since July this year.

Rexona seeks to capture 10-20% of the market. It has embarked upon a massive advertising campaign involving initial expenditure of about $4.5 million to promote Aim toothpaste. The campaign includes: -

(a) television advertising in the form of a commercial screened on television channels throughout Australia at various times, including peak viewing times, over an initial period of August to December 1981;

(b) advertising in magazines circulating throughout Australia including Reader's Digest, Woman's Day, New Idea, and Women's Weekly;

(c) the distribution of free samples of Aim toothpaste to about 70% of Australian homes;

(d) the distribution of pamphlets, brochures and other material to dentists, chemists and retailers throughout Australia;

(e) programmes with major retailers involving co-operative advertising and the sharing of costs - in particular discount sales, the discounting of products and the purchase of space in particular areas within the premises of retailers.

Colgate asserts that many of the claims made by Rexona in its advertising material are false, misleading or deceptive. Colgate seeks interlocutory injunctions against Rexona for alleged breaches of ss. 52, 53 (a), (b) and (c) and 55 of the Trade Practices Act 1974 ("the Act") in respect of some of the statements made in the advertising material which Colgate asserts are the worst offenders. These statements are numerous and not all of them are made in each of the many forms of advertising. It would take too long to recite them all. I shall mention those which are the primary target of Colgate; but it is important to bear in mind that although some statements may be viewed in isolation from others, others must be considered together as they are presented in a sequence. This is particularly so with the television commercial.

Before reciting the particular statements complained of, it will be helpful to explain some of the terms referred to therein.

"Plaque" is a word which most people, who are familiar with it, probably associate with a tablet hung on a wall for ornamentation. Recent publicity in Australia by the toothpaste manufacturers - Colgate, Rexona and Beecham (Australia) Pty. Limited - is saturating the mind of the public with a secondary or technical meaning of the word namely, a thin transparent film containing bacteria on a tooth surface.

Plaque is a major cause of tooth decay (dental caries). Gum problems can also be caused by plaque, sometimes leading to loss of teeth.

It has been scientifically established that fluoride helps combat tooth decay. Almost all, if not all, toothpastes in Australia contain fluoride; its prowess in the fight against tooth decay is continually stressed in toothpaste advertisements.

Zinc citrate trihydrate ("citraden") has been used in some toothpastes overseas (but not in Australia until the introduction of Aim) including Gibbs S. R. toothpaste in the United Kingdom, a product of the Unilever Group. It has been used there since about 1975. Neither Gibbs S.R. nor citraden itself has been described in advertising for Gibbs S.R. toothpaste as an innovation or a "breakthrough"; although citraden or Aim toothpaste are so described in the Australian advertising material.

Armed with this glossary I will now set out the principal statements in Rexona's advertising material impugned by Colgate: -

"ANTI-PLAQUE TOOTHPASTE WITH CITRADEN

Helps keep decay-causing plaque away all day"

"AIM with FLUORIDE
ANTI-PLAQUE TOOTHPASTE WITH CITRADEN
Better protection against decay-causing plaque"

"AIM - A BREAKTHROUGH IN THE FIGHT AGAINST DECAY-CAUSING PLAQUE
DENTAL RESEARCH PROVES THAT PLAQUE IS A MAJOR CAUSE OF TOOTH DECAY"

"Brushing with AIM the only toothpaste containing citraden, does more than just remove plaque"

"AIM is 50-90% more effective than Australia's best known toothpastes in slowing down the growth of plaque between brushings"

" . . . It has now been established that if there was no plaque there would be no decay"

"While various dental products remove plaque with brushing, the problem is not just removal, but stopping plaque from growing back on the teeth again - or at least slowing down the rate of its regrowth"

"At last, a safe toothpaste ingredient with proven effectivness in retarding plaque regrowth has been developed: zinc citrate trihydrate or citraden."

"Independent clinical tests have proved that, while no toothpaste can permanently rid the teeth of plaque, AIM with citraden slows down the regrowth of plaque dramatically"

"In fact, AIM is 50-90% more effective than Australia's best known toothpastes in slowing down the regrowth of plaque from one brushing to the next"

"Therefore, in AIM the combination of citraden and fluoride provides the most advanced family toothpaste in Australia"

"AIM gives 50-90% better protection against plaque than Australia's best known toothpastes."

"AIM - a scientific breakthrough"

"$1 million of research and development proves success"

"The first major FORMULATION breakthrough since fluoride"

"In particular, independent clinical trials have demonstrated that AIM is significantly better in its plaque-retarding ability than Australia's leading toothpastes."

" . . . AIM is the first toothpaste to present a positive answer to the regrowth of bacterial plaque between brushings"

"Comparative tests show that AIM is significantly better at slowing down the regrowth of plaque than the toothpaste your family is probably using now."

Colgate objects to the whole of the television commercial on the ground that although some statements when taken in isolation from others may be permissible, when taken in conjunction with others, they together create a false, misleading or deceptive impression in the mind of the viewer. The commercial is introduced by a well-known television personality, Mr. Geoff Stone, who is associated with programmes both on A.B.C. and commercial television involving inventions and innovations. The script of the television commercial is as follows: -

"GEOFF STONE

Decay-causing plaque

How much longer are they going to keep telling us how to remove it?

Removing plaque is not the real problem - brushing with any good toothpaste removes plaque - but it starts growing back straight away.

The important thing is to slow down this re-growth of plaque between brushing and so protect teeth longer.

A new toothpaste - AIM - does just that.

AIM is a true anti-plaque toothpaste and contains a breakthrough ingredient called CITRADEN.

AIM does more than just remove plaque. Look at this - see how AIM with citraden actually slows down the re-growth of plaque between brushing. (These statements are accompanied by what is called a core-graphic - that is a laboratory microscopic demonstration of plaque growth in the presence of AIM compared with plaque growth in the presence of other toothpastes)

AIM works significantly better than the toothpaste you are probably using now. In my opinion AIM is a true anti-plaque toothpaste. My family are certainly using it.

Voice over

Take AIM against decay-causing plaque - AIM WORKS"

The first question is whether Colgate has established a prima facie case of false, misleading or deceptive conduct in the sense referred to in the many reported cases on this question, in particular Beecham Group Limited v. Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618; World Series Cricket Pty. Limited v. Parish (1977) 16 A.L.R. 181 and T.W.U. v. Leon Laidley Pty. Limited (1980) 28 A.L.R. 589.

Whether a prima facie case of false, misleading or deceptive conduct has been established turns essentially upon the proper construction of the statements made in the advertising material.

The essence of Colgate's complaint is that citraden or Aim toothpaste is held out by Rexona as some recent innovation or invention or scientific "breakthrough" which aids the reduction of tooth decay. When combined with fluoride (as it is in AIM) the consumer has a double benefit which other toothpastes do not have, as they contain fluoride alone.

Rexona concedes that if the material claims that citraden reduces decay or that Aim is better than other toothpastes in reducing decay, a prima facie case has been established. Colgate asserts that this is the only reasonable construction which the advertising material could bear.

Counsel for Rexona likened the advertising material to two sides of a triangle: the first side saying that plaque causes decay (that is common ground between the parties); the second side saying that citraden inhibits plaque (a proposition which is disputed by Colgate). Rexona denies that the third side of the triangle says expressly or by implication that citraden reduces decay. This may be inferred by the consumer if he chooses; but it is equally open to him not to reach this conclusion.

I should say at once that in my opinion much of the advertising material plainly says to the reader or the television viewer that Aim with citraden reduces decay or that Aim is better than other toothpastes in reducing decay. At the risk of repetition I restate but two of the statements made in the material: -

"ANTI-PLAQUE TOOTHPASTE WITH CITRADEN
Helps keep decay-causing plaque away all day" and "ANTI-PLAQUE TOOTHPASTE WITH CITRADEN
Better protection against decay-causing plaque."

These statements appear on toothpaste tubes themselves and the cartons in which they are sold.

Whilst some statements on a particular form of Rexona's advertising material (the toothpaste tube, the carton in which it is sold, the leaflet also contained in the carton, the television advertisement and magazine advertising), if read in isolation from other statements in the same piece of advertising, may not convey the meaning that citraden reduces decay, when read as a whole and in context they plainly do.

The respondents have embarked upon a mammoth advertising campaign - described in the evidence as a "blockbuster" campaign - with the objective of capturing a large segment of the toothpaste market in Australia. The 60% share of the market has been held by Colgate for some time; and it has been marketing toothpaste in Australia for over thirty years. To force its way into the market, Rexona has decided to expend very large sums of money on advertising, - some 4.5 million dollars - and this is only initial advertising expenditure, as well as one million dollars on research. Rexona must have something special to sell if it is to have an impact on the consumer. What it promotes is not just a toothpaste. There are many of them and they contain fluoride. Aim claims to be a toothpaste with something special namely, it contains both fluoride and citraden. It is Australia's "first true anti-plaque toothpaste"; "the only toothpaste containing citraden"; "a valuable step forward in the therapeutic toothpaste field"; "a scientific breakthrough"; a toothpaste which slows down "plaque re-growth between brushings by an astonishing 50-90% better than the best-known family toothpastes".

Colgate contends for an alternative construction of the advertising material namely, that it holds out citraden as inhibiting plaque. Another alternative construction contended for by Colgate is that, even if the advertising material does not represent that citraden reduces tooth decay or inhibits plaque, at least it represents that it has been scientifically established that citraden inhibits plaque. Colgate contends that, whichever construction be correct, the advertising material is false, misleading or deceptive.

Reference is made in some of the material advertising Aim toothpaste to "dental literature", "external studies" and "Unilever internal studies" concerning the plaque inhibiting functions of citraden. To consider these contentions involves reference, to some extent, to the technical literature.

The "dental literature" includes studies by Hanke, Fischmann, Schmidt, Harrap, Pugh, Kitchen and Hyne. The "external studies" specifically mentioned are those of Addy; Ahrens of Marburg University, West Germany; and the University of Oslo, Norway. Reference is also made in the advertising material to tests carried out by the Battelle Institute in West Germany "to test the clinical effectiveness of Aim . . . comparing plaque growth inhibition of Aim and three leading Australian products against brushing with water".

Although it is common ground that none of the studies mentioned in the advertising material (external, Unilever internal or any other studies or trials) have established that citraden inhibits dental decay or that Aim toothpaste is better than other toothpastes in reducing decay, there is a real dispute between the parties whether citraden inhibits plaque at all. It remains to be scientifically established whether citraden helps prevent decay or not.

It is unnecessary for me to refer in detail to the evidence touching the question of the role of citraden in inhibiting plaque. Many affidavits have been filed by each party touching this question. They include distinguished experts from overseas and Australia. The resolution of the question of citraden's role must await the final hearing; but I will mention some of the evidence.

The works of Hanke and Schmidt do not refer to citraden at all.

Harrap does not test the effect of citraden. He describes a method for plaque measurement as a linear measure of plaque at the gum margin sixteen hours after tooth brushing. Pugh, Kitchen and Hyne do not refer to either citraden or plaque.

Pugh describes a method for the measurement of toothpaste abrasivity on irritated teeth. Kitchen's article is on toothpaste abrasivity. Hyne discusses tooth brushing techniques in the context of the treatment of periodontitis.

The Fischmann Clinical Study may support the view that citraden inhibits plaque; but there is much to be said for the view that little support can be placed upon its finding on the questions involved here. For example, the level of citraden used in the Fischmann study (5%) was ten times greater than that used in Aim toothpaste (0.5%). The test results were that of a dual zinc salt preparation and failed to distinguish the individual performance characteristics of either citraden or zinc tribromsalan. The study used citraden at a level of 5% in combination with 0.125% zinc tribromsalan being a known anti-bacterial agent. The product form was a rinse not a paste.

Dr. Addy swore an affidavit and gave oral evidence in the proceedings. He is the senior lecturer in periodontology at the Dental School, Heath Park, Cardiff, South Wales in the United Kingdom. He is highly qualified and experienced. He is the primary author of an article titled "Effects of a Zinc Citrate Mouth Wash on Dental Plaque and Salivary Bacteria" published in the Journal of Clinical Periodontology in August 1980. He swore that when the conclusion was expressed in the paper

"Zinc Citrate, when used as 10 ml., 0.2% mouth wash twice a day, a dose which represented approximately 4 times the normal toothpaste dose, had a small anti-plaque effect of questionable clinical value"

he meant

"that notwithstanding that as a matter of pure mathematical statistics it was possible to show some small anti-plaque effect of a large dose of zinc citrate in practical clinical terms the substance would be unlikely to have any therapeutic value whatsoever to a user . . . "

"My study indicates that the minimal plaque reducing effect of zinc citrate would not be a mechanism by which caries reduction would be brought about. In my opinion, the small reduction in plaque shown by the zinc citrate mouth wash would not be reflected in a reduction in gingivitis. In my opinion, one cannot extrapolate into either an anti-caries effect or an anti-gingivitis effect the small anti-plaque effect shown. Used as a mouth wash the zinc citrate solution tested in our study was equivalent to four times the zinc citrate concentration in Aim toothpaste and, in light of my study, 0.5% zinc citrate in a toothpaste alone is unlikely to perform any therapeutic function whatsoever on the gums . . . "

"I have been provided with promotional material which I am informed and verily believe has been produced by the respondent in relation to the promotion of Aim toothpaste. I have seen, on a page headed 'The Anti-Plaque Activity of Aim' the following paragraph: 'Furthermore, some 20 external and Unilever internal studies on the efficiency of zinc citrate specifically have confirmed its plaque inhibiting effects in a variety of toothpaste bases (e.g. Addy et al . . . ) followed by a superscript number which by reference to the list of references in the promotional material is a reference to the paper Addy M., Richards J., Williams G., J. Clin. Periodont. 1980, 7,309. The quoted statement . . . above is inaccurate as my study used a mouthwash and not a toothpaste base, and it is a misrepresentation of the conclusions of my studies. The authors of my study did not intend to be taken as having expressed the conclusions claimed by the respondent to be set out in the paper. I have written to Unilever Limited in the United Kingdom which I am informed and verily believe to be a related company of the respondent expressing my concern as to the use of my study and its findings for the reasons expressed earlier in this paragraph of this my affidavit. In my professional opinion zinc citraden is unlikely to have therapeutic value as an anti-plaque agent in toothpaste or in a mouthwash. Certainly not at the concentrations which I tested."

The Battelle trials are trials by the Battelle Institute in West Germany carried out in 1980 and 1981 relating to anti-plaque effect of various toothpastes. Strong criticisms have been made of the trials by expert witnesses on various grounds. I need not refer to those criticisms other than in summary. They include the following: selection of subjects was made without regard to age and sex. There is doubt as to whether a proper cross-section of personnel was selected. There is no indication of the full composition of the toothpastes used. There are doubts as to whether proper statistical methods were employed. The results, although statistically relevant, may be of negligible clinical importance.

Another study relied on by Rexona is called the "Oslo" study. Some expert evidence was to the effect that the contents of that study provide no support whatsoever for a claim that the University of Oslo, Norway has specifically confirmed the plaque inhibiting effects of zinc citrate.

Tests carried out by Professor Ahrens at Marburg, West Germany resulting in his "Report on Clinical Trials of Dental Creams" 18 April 1978 are also criticised by some witnesses on various grounds including the following: -

"The only described non-placebo paste tested (called A3) contained 1% zinc citrate which is twice the concentration of zinc citrate in Aim toothpaste. Furthermore, the A3 paste contained 1% sodium monofluorophosphate which is 25% more than is contained in Aim toothpaste";

"Preparations containing twice the concentration of zinc citrate as in Aim toothpaste had no significant effect on gingivitis when measured using 'the Sulcus-bleeding index' (so insignificant that Professor Arhens abandoned any attempt at further evaluation)";

"The trials seeking to establish a therapeutic benefit for zinc citrate failed to produce such a result."

Certain internal trials were carried out by Unilever with reference to the efficiency of zinc citrate and its plaque-inhibiting effects, if any. The criticisms of those studies include the following: -

"All the reported results relate to preparations containing 1% or higher concentrations of zinc citrate than is included in Aim toothpaste except for four studies; and as to those four studies even if the results support the proposition that in some instances zinc citrate has been shown to retard plaque growth at the gingival margin that result cannot be extrapolated into a performance claim in relation to tooth decay because there is no known correlation between the incidence of plaque at the gingival margin and the incidence of tooth decay.

Studies called the "Manchester Plaque Clinical Studies" were made at the request of Colgate under the control of Dr. Volpe - Associate Director of Clinical Investigations, Research and Development of the Colgate-Palmolive Company U.S.A. The conclusion reached by those engaged in the studies was that "there were no statistically significant differences among the four dentrifices evaluated in regard to plaque growth scores". Aim was one of the toothpastes tested.

Although I have touched but briefly on the principal studies referred to in the evidence and relied on by Rexona to support its claim that citraden inhibits plaque, I have said enough to show that there is a very real dispute between the parties as to this claim.

I emphasise that these questions are contentious and I have no concluded view on the matter. All I say is that they are questions to be determined at the final hearing. A very real issue will be whether, even if citraden does inhibit plaque in a statistical sense, the use of 0.5% citraden in Aim toothpaste does in fact inhibit plaque. Other questions will arise for final determination later, including the important question whether, upon its true construction, some of the advertising material represents to the public that it has been scientifically established by clinical trials that the use of 0.5% citraden in Aim toothpaste inhibits plaque. I am satisfied that a prima facie case has been established as to these matters.

In summary I am satisfied that Colgate has established a prima facie case that the impugned statements in the advertising material make assertions falling within one or more of the following categories: that citraden reduces decay; that Aim toothpaste is better than other toothpastes in reducing decay; that citraden inhibits plaque; or that any one of the foregoing has been scientifically proven.

I turn to the balance of convenience.

Rexona relied on a number of matters in support of its argument that no injunctions should be granted. It contended that the only relevant interests to be considered are those of itself, as the advertiser, and the consumer, any damage to Colgate being irrelevant. Reliance was placed upon the decision of the Full Court of this Court in World Series Cricket Pty. Limited v. Parish (supra). I see nothing in the judgments in that case to support this proposition. Indeed, it is inconsistent with the judgment of Bowen C.J. (who was also a member of the Court that decided World Series) in Commercial Bank of Australia Limited v. Insurance Brokers Association of Australia (1977) 16 A.L.R. 161 where his Honour decided the case on the balance of convenience, having regard to the damage which the applicant would sustain.

I see no inconsistency between the purpose of Part V of the Act, which is essentially to protect consumers from misleading or deceptive conduct in trade or commerce and, in the appropriate case, considering damage likely to be suffered by the applicant for injunctive relief.

Rexona contends that interim injunctions are not required because: -

(a) statutory approvals to certain of the advertising material were duly granted by the Commonwealth Department of Health and the Victorian Health Commission; and

(b) it has not been established that the consumer is likely to be harmed.

As to (a), approvals to certain of the advertising material were given by the two statutory authorities mentioned. There is some evidence as to the circumstances in which the approvals were sought and granted in each case; but I know little of the extent to which those authorities examined either the claims of Rexona in the advertising material or the scientific literature relied on to establish them. Their task is different from mine. Although I regard the fact of the statutory approvals as relevant, I do not place very much weight upon them in deciding whether interlocutory injunctions should be granted.

As to (b) it has not been scientifically established that citraden assists in the prevention of tooth decay. Nor has the contrary been established. However, evidence was given by a dentist in private practice in New South Wales, Mr. Woods, as to some possible harm arising from the use of Aim toothpaste. Mr. Woods is a dentist of considerable experience. Over the last 12 years he made some 15,000 plaque examinations on patients as part of a preventative dentistry programme associated with his private practice. He gave evidence both by affidavit and orally. He carried out an assessment at the request of Colgate for the purpose of assessing the effect of Aim toothpaste on plaque. I need not relate the details of the experiment. He concluded that although the trials conducted by him were on a small scale, they raised legitimate doubts in his mind as to the short-term effects of Aim toothpaste on dental plaque.

In his view it is possible that the effect of Aim toothpaste is to increase the cariogenic nature of plaque. In his view, the use of Aim toothpaste appears to be associated with a change in the quality of the dental plaque examined; but it is not known whether this change is of a permanent or transient nature. As a consequence of the results obtained from the trials conducted by him he advised the patients concerned to discontinue the use of Aim toothpaste. However, Mr. Woods fairly stated that he did not claim that his observations constituted conclusive evidence of the effect of Aim toothpaste on the quality of dental plaque. What they did was to raise doubt as to the effect of Aim toothpaste on the nature of dental plaque.

I do not think it can be successfully maintained that harm or damage is likely to be suffered by people who use Aim toothpaste. Mr. Woods does not suggest this. The substance of what he says is that until more is known about Aim toothpaste he prefers his patients not to use it.

The importance of the evidence of Mr. Woods, and, indeed, the evidence of other expert witnesses is that, until the claims made in the Rexona advertising material extolling the virtues of Aim toothpaste and citraden are scientifically substantiated by tests which are published to the dental profession, scientists and the public, they should not be made. It is not only commonsense; it is right; and on the facts of the present case the very matter to which ss. 52, 53 and 55 are directed. It must not be forgotten that the material relied on by Rexona to substantiate its claims for Aim toothpaste and citraden are essentially unpublished reports and tests.

Rexona asserts that there is a body of evidence supporting its case that citraden does in fact inhibit plaque and that the strength of this evidence ought to be taken into account in weighing where the balance of convenience lies. There is some substance in this assertion and there is material, including evidence of expert witnesses, supporting the case for Rexona. It remains to be determined at the trial which evidence will prevail. I take into account this assertion of Rexona when determining whether injunctive relief should be granted.

Rexona then points to its own conduct as supporting the refusal of injunctions. Rexona says that the claim, expressed in different ways, but to the effect that Aim toothpaste is 50-90% more effective than Australia's best-known toothpastes in slowing down the growth of plaque between brushings, was not proceeded with after Rexona was informed by the Commonwealth Department of Health that it ought not to be made. Rexona then abandoned the manufacture of packaging involving that claim and commenced preparing what has been called "oversticking" material to be affixed to the packages in which Aim toothpaste is sold, all at substantial cost to Rexona. I take this matter into account; but I also take into account the fact that Aim toothpaste is still circulating in the market place and being sold, presumable by retailers and chemists, in packaging making the "50-90%" claim. The claim is also made in other promotional literature, including magazines.

Rexona points to the fact that it instructed its advertising agent to refrain from asserting any definite or proven reduction of tooth decay by virtue of citraden. This is true; but in one sense it begs the question because I have found that there is a prima facie case that some of the promotional material in fact asserts that citraden helps prevent tooth decay.

Rexona then contends that Colgate's own conduct disentitles it to interlocutory injunctive relief. Reliance is placed on certain advertising in South Africa by a Colgate-Palmolive company that "regular brushing using Colgate Dentagard with ZINC SULPHATE fights plaque, reduces tooth decay and keeps gums firm and healthy." Rexona also points to certain of the advertising in Australia made by Colgate, including television commercials encouraging the consumer to buy Colgate toothpaste and saying "There is no doubt Colgate is the most trusted name in toothpaste in Australia and the fluoride in Colgate has been conclusively proven to be most effective against tooth decay." Also, "Regular brushing with Colgate removes plaque from the outside whilst the fluoride in Colgate fights plaque attack from the inside. Colgate fights plaque two ways."

Colgate responds by saying that the advertising material in South Africa does not show any claim that zinc sulphate is some new ingredient which has been established as effective in fighting tooth decay. Rather the effect of zinc sulphate was directed to the astringent qualities in relation to the gums; and zinc sulphate was advanced for periodontal reasons in relation to what is described on the toothpaste itself as a periodontal toothpaste. In my opinion, the matters relied on by Rexona in relation to the conduct of Colgate or another Colgate-Palmolive company in South Africa do not, whether viewed alone or together with other matters, justify the refusal of interlocutory injunctions.

Next it is said that Colgate delayed unduly in commencing proceedings because Colgate and its advertising agents knew as early as July 1981 of the substance of the promotional material which was about to be launched. I do not regard Colgate as having unduly delayed in bringing these proceedings. They were commenced by application filed on 7 September 1981 and preceded by the usual kind of correspondence between the solicitors for the parties.

Rexona asserts that the undertaking as to damages proferred by Colgate will not fully compensate it for any loss or damage it may suffer if interlocutory injunctions are granted. It is said that it may be impossible to measure damage by reference to failure to gain a market share in contrast to losing one. These matters are always difficult to establish; but the courts are no strangers to problems of this nature. However, I take this matter into account.

Rexona asserts that its advertising programme may mean total loss of the opportunity to enter the market: "the door only opens once". I reject this assertion. No doubt the granting of interlocutory injunctions would inconvenience Rexona. It would have to reshape its advertising programme; but that is no answer to the granting of interlocutory injunctions on the facts of this case.

Next Rexona says that interlocutory injunctions will, in reality, conclude the issues because it will have to abandon its present advertising campaign and, once abandoned probably there will be no practical advantage in re-establishing it even if it ultimately wins the case. There is force in this assertion and I take it into account.

Rexona then points to the evidence which shows that the restructuring of its advertising campaign, in particular starting afresh with its television advertising, manufacturing fresh tubes and packages, and restaging the redistribution of free samples in letter boxes, may involve many weeks of delay and dislocation. There is a conflict of evidence, in particular between Miss Hughes called by Rexona and Mr. Jardine called by Colgate on the extent of delay. I am satisfied that to grant interlocutory injunctions will involve Rexona in substantially reshaping the rest of its advertising campaign - in particular, the television commercial, the words appearing on the toothpaste tubes and leaflets, and on the packages in which they are contained. I am also conscious of the fact that this change of direction will delay any further advertising campaign for a not inconsiderable period of time, perhaps two months or so. On the other hand I have no doubt that Rexona will give top priority to the reshaping of its advertising campaign and do it as quickly as possible. There is evidence that Rexona has already commenced to prepare alternative documents in the event of injunctions being granted.

Rexona contends that there is no cogent evidence that irreparable harm will be sustained by Colgate if interlocutory injunctions are refused. It was submitted that there was no evidence called by Colgate as to loss of sales that might ensue; on the contrary there is evidence to suggest that Colgate's market share might increase and that Rexona may not be able to affect the market to the detriment of Colgate.

To look ahead for the purpose of determining the likely effect of Rexona's conduct upon Colgate's business if injunctions are not granted necessarily involves a large measure of conjecture. However, the prospect of Rexona eroding the market share of Colgate is real. Of course, competition is to be encouraged; and there is no reason why Rexona should not seek by an advertising campaign to erode Colgate's market share; but not by false, misleading or deceptive advertising. Also, apart from any prejudice to Colgate itself, there is the public interest to be considered. It is to this that I now turn.

It is the plain purpose of the Act to require truthful conduct in the market place and that competition be free and fair. In this case, claims are made by Rexona which consumers themselves cannot verify. They rely on the technical expertise of Rexona to assure the validity of the claims. As I have found that a prima facie case has been established, the public interest is a matter to be taken into account, weighing heavily in favour of the granting of interlocutory injunctions. See the decision of the United States Court of Appeals, Sixth Circuit, in the Firestone Tire and Rubber Company v. Federal Trade Commission (1973) 481 F.R. 246.

The relevance of public health or safety, although always an important consideration, admits of degrees of importance. Some claims may go to matters of life and death whilst others may be at the other end of the scale. Claims like those in the present case, relating to dental health, lie somewhere in between.

Then there is evidence of dentists who were critical of the fact that, in their view, Aim toothpaste was being represented to the public as inhibiting plaque and reducing decay. They feared that patients might misconceive the advertising material, relax their standards of dental hygiene and ignore instructions from their dentists because they might assume that their teeth acquire some protection from Aim which they really do not have. I do not attach great importance to this because the evidence in support of these fears is fairly slight. Nevertheless, the evidence is there and I take it into account. Running through the whole case, one sees the problems that arise when claims are made about the therapeutic benefits of Aim toothpaste when the available scientific evidence is mainly unpublished and therefore without the benefit of independent scientific clinical trials and assessment by the dental profession.

There is evidence that Rexona's advertising campaign may erode the market share enjoyed by the smaller manufacturers of toothpastes. Indeed, Mr. Johns, the General Sales Manager of Rexona, said in cross-examination that the introduction of Aim toothpaste would, in his view cause the small brands to suffer substantially, although the market share that Rexona is looking for "would not greatly unbalance the total structure of the total ranking of the market."

Rexona contended that these matters are irrelevant as the small manufacturers are neither parties to the proceedings nor consumers. In my opinion the possible detriment to the small manufacturers is a relevant consideration. The Act is concerned with the maintenance of free and healthy competition. If a corporation is engaging in misleading or deceptive advertising which assists it in gaining a substantial share of a market at the expense of small manufacturers, the interests of those manufacturers must be a relevant consideration when considering the balance of convenience.

Another consideration in favour of granting interlocutory relief is that Colgate has been established as a manufacturer of toothpaste in Australia for over 30 years. Aim toothpaste is a newcomer.

Finally, loss that may be sustained by Rexona, if interlocutory injunctions are granted, can, I think, be met by Colgate's giving the usual undertaking as to damages.

Having considered all relevant matters I have come to the conclusion that the balance of convenience weighs heavily in favour of granting interlocutory injunctive relief.

I do not propose to grant injunctions today; but to indicate in general terms their subject matter and scope, so that the parties may consider my reasons for judgment and bring in short minutes tomorrow.

The injunctions should restrain Rexona until the hearing of the proceeding or further order from producing or causing to be produced and distributing or causing to be distributed in respect of the toothpaste Aim any promotional material, radio or television commercials, press or magazine advertisements or information leaflets, toothpaste tubes or packaging containing any statements or representations to the effect that: -

(a) Aim toothpaste or the ingredient citraden constitutes an innovation or scientific breakthrough;

(b) Aim toothpaste has been proven by scientific trials to be superior in performance to other Australian toothpastes;

(c) Aim toothpaste, by reason of the ingredient citraden has a clinical or therapeutic utility and by reason of the inclusion of such ingredient is beneficial to dental health;

(d) Aim toothpaste and the ingredient citraden have been proved by scientific or clinical evaluation or by reference to scientific literature to have an efficacy in the reduction of plaque or the regrowth of plaque or to have a clinical or therapeutic utility; and

(e) Aim toothpaste has the approval of the dental profession.

Liberty to apply should be reserved to either party in the event of any difficulties arising with respect to the working out of the orders.

The costs of this application for interlocutory injunctive relief should be costs in the proceedings.

The further hearing of the matter is adjourned until tomorrow at 10.15 a.m. so that counsel may bring in short minutes.