Legislation & Reform

A consumer is anyone person who acquires goods and services for personal or domestic uses. Advertising is a very powerful tool used to inform consumers of various goods or services and there benefits. However there is a line between information and deception, some advertisements misuse their powerful influence in order to deceive consumers in a hope to sell goods. An example of this deception is the myth of subliminal messages in advertising, limiting the consumers ability to make independent choices by influencing the unaware consumer's subconscious.

Because of this unequal bargaining power, the government has to intervene in order to protect the consumer. Although there is common law to protect consumers this is inadequate compared to the capabilities of statute law. The main pieces of legislature that protect consumers from unfair advertising are Trade Practise Act 1974 (Cth) and Fair Trading Act 1987 (NSW), with there many provisions. The provisions of these acts try to limit the practice of businesses that deceive, mislead or exploit consumers.

These pieces of legislation also seek to remedy the matter either through compensation or corrective advertising. The legislation is also assisted in the campaign against the misuse of advertising with statutory bodies such as the Office of Fair Trading NSW and the Australian Competition and Consumer Commission (ACCC) as well as small claims tribunal and courts. The ability of the legislation to reform is demonstrated in the banning of tobacco advertising as well as many recent reforms to accompany new technologies that allow advertising, such as SPAM and video games.

All of these statutory means are generally very effective and are able to protect the consumer as well as prove to be efficient laws, but some need more reform in order to protect consumers from advertising to the best possible degree. The inadequacy of common law, explaining why my essay focuses only on statutory means of protection (common law is slow changing, advertising is new, and new technology adverting eg SPAM, advertising video games, SMS make common law unable to combat because I is so slow, compared to statue law) Main pieces of statue being Trade Practise Act 1974 (Cth) and Fair Trading Act 1987 (NSW).

Point out the compressive provisions make it effective (ie more laws = more protection for consumer, who has unequal bargaining power, therefor reflects community values) Effectiveness of s53 is that it provides a large amount of descriptions so that they is very little chance of a seller lying about something that should be of concern to the consumer therefor reflecting community values, and protecting the consumer, as well as not disadvantaging the seller as there are reasonable qualities of a work that need to be truthful.

Also these provision makes court cases more efficient, as they are very specific and so any deception, of these kind (which is easy to define) is unlawful (and efficient court cases saves time and money). Other legislation that is pretty much covered in TPA and FTA is the Sale of Goods and Services Act (1923), but still contains consumer protection in advertising. Injunction – can be used to correct ads eg 2001, Target company had to make a formal apology on television, shown through out a period of time.

Demonstrating justice to consumer public and punishing company for misleading as paying for prime-time airing is expensive. Reform – reform reflects effectiveness and consumer protection in advertising has had a lot of reform, (lots of reform due to new technologies for advertising)Trade Practise Act 1974 (Cth) – one of the main pieces of legislation that protects consumers in general but also in advertising. Fair Trading Act 1987 (NSW) – one of the main pieces of legislation that protects consumers in general but also in advertising.

Sale of Goods and Services Act (1923) – doesn't feature advertising to much other then preventing advertisements that don't match description with product, but in general protects consumers with goods and services. Tobacco Advertising Prohibition Act 1992 (Cth)- prohibits the advertising of tobacco, demonstrating law reform to changing community values ie tobacco found to cause disease and influencing young smokers was seen as morally wrong by society.

Spam Act 2003 (Cth) – prevents "unsolicited commercial electronic messages" (this includes SMS) from being sent to an address that has not allowed them to. Is an example of law reform in response to new forms of advertising due to technology advances. Classifications (publication, Films and Computer Games) Act 1995 (Cth) – controls advertising in video games, is an example of reform to legislation in response to new technologies and there advertising capacities. Cases Lyndon v Coventry Motors Retailers Pty Ltd (1975) – sellers exceeding the "allowable" puffing limit.

The notion of mere puffing can also be seen in the case Homer Simpson Case (1996) – brewery made a drink that they called Duff, (from the plaintiff's TV series 'The Simpson's') arguing that the series would be advertising the drink and making a false association between the company and the drink, therefore being deceptive practice. Coca Cola Company v All-Fect Distributors (1999) – where lolly company made cola lollies in bottles resembling that of coca cola ones, Coca Cola company argued that they was a deception to consumers that they where related.

Colgate Palmolive Pty v Rexona (1981) – Colgate toothpaste add made claims using scientific data, where research was never made and so was ruled as having misleading information. Leo v Brambles Holdings Pty Ltd (1982) – cases demonstrating the lack of importance in either or not the advertisement actually deceived, but was likely to deceive. Luffram v Australia and New Zealand Banking Group Ltd (1986) – advertising using unfair influences on consumers.

Apple Computer v Computer Edge Pty Ltd (1984) – Computer Edge Pty Ltd left Apple Computer manuals with their computers, deceiving consumers into thinking that there was a connection between the two companies. Honey v Australian Airlines Ltd (1989) – case where Mr Honey (an athlete) did not approve of his picture being used in the advertisement of Australian Airlines Ltd. Sully v Darwin Bakery (1981) – a case where the price of bread was not lowered as advertised.

Given v Quinn (1978) – a case on false description of need, a pamphlet claimed that "you must have an extinguisher fitted adjacent to each exit on your van". Also the fire extinguisher company claimed to have approval of the Yachting Association of Australia (not true). ACCC v Nissan Motors Company (1998) – a case where the ACCC prosecutes due to misleading advertising. Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (1999) – case where Gillete (manufactures of Duracell) advertisement made false claims deceiving the consumer.