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Get the truth across clearly

13 Mar 2008

Market research is widely used within the FMCG industry. The results of market research can add valuable credibility to your advertisements, your products and your business.

Research findings may, for example, guide product development or lay the foundation for an advertising campaign.  But when making advertising claims that your goods or services are superior to those of your competitors, you must take care not to create a general impression that is unsupported by the findings of your research.

The well-publicised Australian court case between Johnson & Johnson and Unilever shows how advertising claims that give consumers a false impression will breach consumer protection laws, even if those claims are literally true.

In August 2005, Johnson & Johnson launched “Holiday Skin”, a revolutionary new moisturiser with a tanning ingredient.  Seven months later, Unilever launched its own tanning moisturiser, “Dove Summer Glow”.  To promote its new product, Unilever ran a comparative advertising campaign.  The advertisements claimed that “7 out of 10 Johnson’s Holiday Skin users preferred new Dove Summer Glow”.  The advertisements contained a footnote that the findings were based on a “use test of 105 women conducted in Australia by a leading research company in March 2006”. 

Johnson & Johnson commenced litigation, alleging the market research did not provide support for the claims made.  The court found the advertising was misleading and deceptive in several ways.

General impression unsupported by market research
Although Unilever’s television advertisements did not specifically state that 7 out of 10 Holiday Skin users preferred Dove Summer Glow for its tanning attributes, the overall impression of the advertising placed emphasis on the tanning effects of the product.  This was not what the market research established. 

When asked which product they preferred, 73% of survey participants had nominated Dove Summer Glow.  However, this general preference could have been based on many factors such as moisturising effect, tanning effect, product texture, fragrance, brand preference, packaging, and so on.  According to the judge in the case, although it was literally true that 7 out of 10 survey participants preferred Dove Summer Glow, the market research did not establish that 7 out of 10 users preferred Dove Summer Glow for its tanning attributes. 

Not all product variants tested
The court considered that an average consumer would reasonably believe that the “7 out of 10” statement related to both variants available in the Holiday Skin and Dove Summer Glow product range (“normal to fair skin” and “normal to dark skin”).  However, the research only tested the normal to fair skin variant.  This detail was not disclosed in the advertisement or its footnote. 

To avoid the impression that both variants had been tested, Unilever should have confined the statement to the product variant used in the study.  Since it did not, the court considered the representation to be a “half truth”.

Limited population tested
Unilever’s market research only surveyed women between the ages of 25 and 45.  Many Holiday Skin consumers are under 25 years old.  By excluding a large proportion of the product’s target market, the population tested was not representative of “Holiday Skin users”. 

According to the judge, consumers would reasonably assume that women under the age of 25 had taken part in the study and had expressed a general preference for the Dove product.  Since the advertisements were directed to women of all ages and contained no qualification about the narrow population tested, the general claim that “Holiday Skin users” had expressed a 70% preference for Dove Summer Glow was misleading.

Factors to bear in mind when engaging in comparative advertising 
Comparative advertising campaigns are likely to attract scrupulous attention from the competitors you target.  When basing your advertising campaign on market research findings, you must ensure that:

• appropriate qualifications (for example, the age group surveyed or the particular product tested) are made
• evidence supports each claim made, as well as any overall impression the advertisement may create
• market surveys are designed appropriately - if your advertising campaign focuses on a specific product feature, ask survey participants directly about that feature, rather than eliciting a general preference from them.

If your advertisement is considered misleading and in breach of the New Zealand Fair Trading Act, this will cost your business precious money and time. Make the most of your investment in market research by using the results carefully.

Angela Fearon
Executive, A J Park Wellington
angela.fearon@ajpark.com
DDI +64 4 474 0965

An edited version of this article was published in FMCG, March 2008