Leading plastic surgeon joins ACCC, TGA in their push to urge brands to be more responsible around marketing health products and services during the COVID-19 pandemic
The ACCC’s decision to pursue Lorna Jane through the courts for alleging its anti-virus activewear can protect consumers from COVID shows the concerning state of health-related marketing in Australia right now, a leading plastic surgeon has told CMO.
The Australian Competition and Consumer Commission (ACCC) commenced legal proceedings against Lorna Jane in December over the clothing and accessories brand’s claims to have produced anti-bacterial activewear that could defend wearers against viruses including COVID-19.
The ACCC has accused Lorna Jane of making false or misleading claims in breach of Australian Consumer Law after the sportswear brand promoted its ‘Anti-virus Activewear’ range as being sprayed with a substance known as ‘LJ Shield’, providing protection against viruses and pathogens such COVID-19. The claims were made in July 2020 across a range of media including Instagram, the company’s website and in stores, and continued through to November 2020.
ACCC highlighted several examples of alleged breaches across Lorna Jane advertising in its concise statement to the Federal Court including, ‘Cure for the Spread of COVID-19? Lorna Jane Thinks So’, ‘With Lorna Jane Shield on our garments it meant that we were completely eliminating the possibility of spreading any deadly viruses’, and ‘LJ Shield – Protecting you with Anti-virus Activewear’.
Credit: ACCC
The ACCC is not the first to raise concerns. Lorna Jane’s advertised claims about ‘Anti-virus Activewear’ and LJ Shield initially raised the alarm of Australia’s Therapeutic Goods Administration (TGA) in July, which promptly fined the company $40,000 via three separate infringement notices.
Lorna Jane, however, hit back, defending its products and arguing it was not trying to “profiteer in any way” around COVID-19 fears. In a detailed statement, Lorna Jane said the technology had been in the works for more than two years and was fast-tracked to Australia after testing of material in Taiwan by quality assurance testing and certification outfit, Intertek, allegedly showed a 99.9 per cent reduction in bacteria.
Yet in the latest ACCC statement, commissioner, Sarah Court, said the regulatory watchdog believed no scientific or technological basis for these claims existed and no testing was in fact carried out. It has also alleged Lorna Jane director and chief creative officer, Lorna Jane Clarkson, was knowingly concerned in the alleged conduct, personally making false or misleading claims about the LJ Shield ‘Anti-virus Activewear’ in a media release and a video posted on the brand’s Instagram account.
Court said it was particularly concerning allegedly misleading claims Lorna Jane’s LJ Shield Activewear could eliminate the spread of COVID-19 were made at a time when there was fear about a second wave emerging in Australia, especially in Victoria.
“We are particularly concerned about this because consumers often trust well-known brands and assume their marketing claims are backed up by solid evidence,” Court said.
It’s not just the regulatory authorities concerned by marketing practices around health products and services such as those made by Lorna Jane.
Dr Naveen Somia, a plastic surgeon and past president of the Australasian Society of Aesthetic Plastic Surgeons (ASAPS), told CMO he was disturbed by the way brands had increasingly made misleading health claims in the face of the COVID-19 global pandemic. He claimed health has become “a loaded term” and criticised those brands continuing to overstep the line when it comes to rules, regulations and protocols.
Credit: Naveen
“Testimonials are placed where they shouldn’t be, claims are inflated, and misleading titles added to names,” he told CMO. “COVID-19 has only exacerbated this problem, with everyone from publicists to celebrity chefs promoting devices claiming to prevent the virus.”
By way of example, Dr Somia pointed to celebrity publicist, Max Markson’s claims that a quantum physics based medical device can prevent COVID transmission. Celebrity chef, Pete Evans, was also fined more than $25,000 by the TGA after promoting a ‘BioCharger’ device as something that could be used in relation to fight off COVID.
“Naturally in the midst of a pandemic, people feel more vulnerable and would view health advertising differently,” Dr Somia said. “For Lorna Jane to utilise pandemic-related messaging to help leverage the success of a product is both irresponsible and unexpected, that the company would look to capitalise on feelings of fear and vulnerability.”
Misleading health claims during the COVID pandemic have the potential to impact a larger group of people who remain vulnerable due to the social, economic and health upheavals created by COVID-19, Dr Somia continued.
“This vulnerability may lead them to make uninformed decisions - or in this case purchases - which claim to prevent, treat, cure or contribute to something that is causing mass destruction on a global scale, and awaiting a vaccine,” he alleged. “Falsely claiming that a garment can offer protection against something that it is not scientifically proven to provide protection against is not only misleading, but false advertising. And above all, it is unethical.”
In Australia, health marketing encapsulates the marketing of both therapeutic goods, as well as regulated health services. Dr Somia said both are likely to have an audience of vulnerable people that will be reliant on them as a trusted source of information. He also noted there has been significantly increased activity by manufacturers and advertisers to meet a growing demand for health products and services during the COVID-19 pandemic, which are claiming to support consumers during these ‘tough times.
It’s a situation the ACCC has itself flagged. Earlier in 2020, the commission said it was prioritising consumer and competition issues arising from the COVID-19 pandemic as a result. By May 2020, the US Federal Trade Commission (FTC) had also issued over 100 Coronavirus warnings to businesses who continue to make unsupported claims their products or services can effectively prevent or treat COVID-19.
Dr Somia applauded the TGA and Australian Health Practitioner Regulation Agency (AHPRA) for strictly monitoring and responding to false or misleading marketing of goods and regulated health services. Yet with the COVID-19 pandemic far from over, he stressed the need for health-related advertising of both therapeutic goods and regulated health services to continue to be subject to stringent scrutiny.
Health-related marketing should rely on factual information and honesty, Dr Somia said. “A successful and reputable health marketing strategy should be a message derived from evidence-based, factual information,” he advised.
“Anything outside of this runs a risk of impacting the consumer in a negative way, a risk that no business can afford during these times. Any marketer, regardless of whether they are in the health or wellness sphere, should always ensure they are backing any claims which could impact a consumer's decision-making process.”
Dr Somia called on large influential brands such as Lorna Jane to play an active role in educating the community, rather than potentially end up misleading them.
“Most marketing ‘gurus’ champion the benefits of brand authenticity, sincerity and genuineness in all communication streams, and now more than ever they should be practicing what they preach,” Dr Somia concluded. “We are living in unprecedented times, and leading brands should adopt a role that offers support and security to ensure an allegiance to their customers which can out-live the COVID-19 pandemic.”
Follow CMO on Twitter: @CMOAustralia, take part in the CMO conversation on LinkedIn: CMO ANZ, follow our regular updates via CMO Australia's Linkedin company page, or join us on Facebook: https://www.facebook.com/CMOAustralia.
In the third and final episode of our 3-part CMO50 video series exploring modern marketing and why it’s become a matter of trust, we’re delighted to be joined by Telstra’s former CMO and now digital services and sales executive, Jeremy Nicholas, and Adobe VP Marketing Asia-Pacific and Japan, Duncan Egan.
Flash back to the classic film, Willy Wonka and the Chocolate Factory. Television-obsessed Mike insists on becoming the first person to be ‘sent by Wonkavision’, dematerialising on one end, pixel by pixel, and materialising in another space. His cinematic dreams are realised thanks to rash decisions as he is shrunken down to fit the digital universe, followed by a trip to the taffy puller to return to normal size.
Why is it there is no shortage of leadership development materials, yet outstanding leadership is so rare? Despite having access to so many leadership principles, tools, systems and processes, why is it so hard to develop and improve as a leader?
As a nation united by sport, brands are beginning to learn money alone won’t talk without aligned values and action. If recent events with major leagues and their players have shown us anything, it’s the next generation of athletes are standing by what they believe in – and they won’t let their values be superseded by money.
