The
dominant headline message in any advertisement must not be misleading the Court
of Appeal ruled. It is a breach of the
Fair Trading Act to bait advertising with misleading headlines to attract
custom and then heavily qualify in the fine print what is on offer.
Budget airlines and
car hire companies have been notorious for advertising cheap deals which on
closer examination prove to be anything but cheap. The Court of Appeal set out rules governing
headline messages when considering a legal challenge to Cavalier Bremworth’s
2013 launch of its new Habitat range of synthetic carpets. Its advertising highlighted the resistance of
this new carpet to wear and to stains, emphasising what it called “superb
warranties” offered in support of the new product. The fine print qualified these warranties out
of existence.
The Court of Appeal said
media campaigns must be judged from the perspective of all those targeted by an
advertisement, excepting those consumers who are unusually stupid or whose
reactions to the advertisement are extreme or fanciful. In reading an advertisement, consumers are
expected to take some reasonable care in interpreting the message. But advertisers are still required to pitch
an advertisement at the level expected of their target market bearing in mind the
knowledge and acumen of customers they seek to attract.
The Court of Appeal
was heavily critical of Cavalier’s 2013 advertising campaign. The dominant message promised stains would
wipe off easily, the carpet would not soil in its lifetime, the carpet would
hold its colour for 25 years, the carpet would not crush under heavy foot
traffic but would spring back and through its lifetime the carpet would be
anti-static. This dominant message was
heavily qualified in a separate 23 page warranties booklet: the warranty was
provided by a third party, not Cavalier; the warranties did not apply to carpet
supplied for time-share properties or rental properties; the warranty did not
extend for 25 years but reduced after 15 years; the warranty lapsed if the
purchaser did not regularly vacuum the carpet and have it professionally steam
cleaned every two years. Excluded from
the warranty against staining was virtually everything that conceivably could
cause a stain, with that stain exclusion itself incorrectly cross-referenced to
the wrong page of the warranty booklet.
In deciding whether a
particular advertisement is misleading, it is the “dominant message” or
“general thrust” which is critical, the Court of Appeal said. It is not a case of separately analysing each
individual statement; it is the overall impression which counts. Any significant qualification from the
headline message must be sufficiently prominent to come to the attention of
targeted customers. The greater the
disparity between the headline message and the qualifying information, the
greater is the requirement to draw customers’ attention to the true position in
the clearest way possible.
Given that
advertisements are designed to attract custom, it is no defence to a complaint
about a misleading advertisement to say any customer would be made aware of all
qualifications and exclusions by the point of sale; it is a breach of the Fair
Trading Act to use a misleading headline message to draw a customer into a
website or physical store and then later disclose the true position.
Godfrey
Hirst (NZ) Ltd v. Cavalier Bremworth – Court of Appeal (27.08.14)
14.034