Similar issues were raised against Colgate-Palmolive (Colgate) in proceedings brought by its competitor Procter & Gamble (P&G) in the Federal Court of Australia.

P&G was concerned that Colgate’s promotion of its whitening toothpaste was not based on reliable, scientific information and was therefore misleading and deceptive. While the claim was (very) quickly settled on undisclosed terms, it nonetheless emphasises the risks for all businesses when promoting products – especially, if in doing so, the key promotional message appears to rely on scientific information and oversimplifies a complex issue.

Background

P&G, manufacturer of Oral B dental products, recently commenced proceedings in the Federal Court of Australia against its competitor Colgate. P&G alleged that Colgate had breached the Australian Consumer Law by making false claims in packaging and advertising material about the whitening ability of its Optic White Renewal toothpaste (Toothpaste). P&G claimed that the ongoing advertising and sale of the Toothpaste would cause it lost sales and profits, lost consumer confidence and brand equity and damage to the reputation of its own Oral B whitening products.

In the proceedings, P&G relevantly sought:

• the removal from sale of the Toothpaste and the destruction of all advertising material and packaging featuring the allegedly misleading claims
• an order that Colgate publish in various media a corrective statement to the public
• compensation in respect of lost sales.

The allegedly misleading claims

Colgate started selling the Toothpaste in around March 2020, and it was advertised on television and on YouTube. The packaging and advertising material contains various claims that the Toothpaste:

• ‘removes 10 years of yellow stains’
• is ‘proven to deeply whiten beyond surface stains’
• ‘whitens teeth inside and out’
• takes ‘years off your smile’.

P&G alleged that these claims falsely represent:

• the Toothpaste produces a major whitening effect on teeth, including to the internal structure of the tooth, not just surface stains, which was measurable against 10 years of yellow stains
• the Toothpaste removes yellow stains that have accumulated over 10 years
• testing has proven that the Toothpaste achieves the above effects.

Scientific basis of the claims

P&G alleged there was no reliable scientific data to establish the alleged teeth whitening effect or that it was effective against 10 years of yellow stains. In particular, P&G alleged:

• a user of the Toothpaste would need to have a high concentration of hydrogen peroxide in contact with the tooth for a sustained period of time with repeated exposure in order to achieve both internal and external teeth whitening and removal of 10 years’ worth of yellow stains. This was unlikely to occur as the hydrogen peroxide in the Toothpaste breaks down quite quickly once it comes into contact with saliva in the mouth
• as consumers typically brush their teeth for shorter periods than would be required to achieve the represented effect, the hydrogen peroxide would not be in contact with teeth for a long enough period
• Colgate did not have reliable scientific data to support its promotional claims.

Accordingly, P&G claimed that the Toothpaste likely only achieved minor teeth whitening and would not remove stains that had accumulated over 10 years. In comparison, P&G claimed that its Oral B 3D White Strips remove 10 years of stains ‘in as little as 14 days’, and are designed to prevent saliva coming into contact with the active ingredient and contain 5.25 per cent hydrogen peroxide.

The Court case to date

At a case management hearing, P&G attempted to have the hearing expedited to October 2020, on the basis that its Oral B whitening products could be taken off shelves as part of retailers’ annual cull of underperforming products in light of the success of the Toothpaste. Colgate rejected P&G’s assertions as to the sales impact of the Toothpaste and argued that there was no point expediting the proceedings because retailers only use data up until September each year to decide which products should be taken off shelves. The Court declined to expedite the trial and instead set the matter down for hearing on 11 December 2020.

Subsequently, Colgate filed a defence that effectively denied the central allegations made by P&G and put them to proof on the claims made. In doing so, Colgate chose not to cite any scientific research of data that supported its promotional claims – effectively requiring P&G to prove that Colgate’s promotional claims were false. In a surprise twist, however, not long after Colgate filed its defence, the matter settled on undisclosed terms and P&G withdrew the claim in its entirety.

Takeaway

For now, it appears that the Toothpaste, complete with the allegedly misleading claims, is still on sale to consumers. As such, we will never know whether or not Colgate’s claims are supported by the science – except potentially if Colgate changes the packaging or promotes the product in a different way. In any case, the dispute is a prime example of how any business can have its promotional claims challenged and, therefore, should be careful when making claims as to the quality, strength or effectiveness of their products. If they fail to do so, then they risk legal action being taken against them by their competitors, consumers or regulators, such as the ACCC.

This article was published in Edition 2 of The Prescription.