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Opinion: Wrap your Christmas puffery with legal care

Opinion: Wrap your Christmas puffery with legal care

With summer approaching, it seems a good idea to consider some recreational activities. Thank heavens holidays are protected. I do anticipate a longer than usual January close-down this year, though, with the extra week’s holiday.

As sales are getting harder, I notice promotions getting more and more creative – but do they sell goods? That’s always the key question. I was close to the receiving end of a great promotion the other day. A little black box arrived in the post, with “Open Here” on it. Inside was a little brochure with a note: “Especially for Harriet”. Harriet is my cat. Those of you with long memories may remember the time she was abducted across the Harbour Bridge by an admirer, triggering a rescue with the help of a community constable. She is not your usual cat! The box also contained a can of top-of-the-line tuna cat food. “Five star feline cuisine. Each morsel hand-selected for freshness and size” said the note. Believe that and you’ll believe anything. It’s called puffery – an exaggeration so obvious that it doesn’t fool anyone. No Fair Trading Act issue on that point – it’s not misleading.

Of course, the gift product costs twice as much as the usual catfood. But did the promotion work? Have you ever had a cat pleading at your feet, tears in her little eyes, the day after the tin was emptied? Spot on, Purina. No fleas on you. And that’s what it takes to sell luxury products in a tight market. Imagination, coupled with due care and attention to the legalities.

Which brings me to an essential summer product – sunscreen. You may recall the Cancer Society had a run-in with Consumer magazine and the Commerce Commission earlier this year over SPF ratings, which could not be achieved on re-testing. The outcome of that has been interesting and rather unexpected. The Commerce Commission has issued a press release (available on its website www.comcom.govt.nz) setting out the problem – the variability of test results between laboratories, and in some cases within the laboratories. Results can differ by up to 5 SPF for the same product – that’s technically half an hour of sun exposure. And you can burn in 10 minutes if you have the wrong kind of skin.

The Commerce Commission has dealt with this sensibly. Rather than discourage manufacturers from putting these necessary products on the market, they are suggesting that manufacturers drop the ratings – for example, if you claim an SPF of 30+, your product should return an average test figure of 35 using the current tests. They are not prosecuting anyone – and indeed it seems likely that the manufacturers would have had a statutory defence against a Fair Trading Act prosecution, provided they had acquired test results and relied on those results. Meanwhile, we can all use the protection of sunscreens: I’ve had too many friends develop incurable melanoma in the past few years, all of them growing up in the pre-sunscreen era.

This is my last column of the year. Next year – well, I think we may have a wee bit of law reform in store. I’ll keep you posted.

Richard Anstice and I wish you a great Christmas season. Drive safely and take care – particularly in the sun.

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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