The Advertising Claims Board recently considered a complaint lodged by Dyson Appliances (Aust) Pty Limited (Dyson) against Samsung Electronics Australia Pty Ltd (Samsung), that the claim "powerful suction that lasts" contained in advertising materials for Samsung's "Motion Sync" vacuum cleaner is misleading or deceptive, or likely to mislead or deceive.
In its determination that Samsung's claim is not misleading or deceptive, the Board considered whether a promotional point of sale "swing tag", attached to a product, is excluded advertising or marketing communications because it is a label, and therefore not covered by the AANA Code of Ethics (Code).
In its submission Dyson requested that various advertising materials be considered, including a point of sale swing tag attached to the Motion Sync vacuum cleaner. Samsung, however, contended that the swing tag could not form part of Dyson's complaint because a swing tag constitutes "Excluded Advertising or Marketing Communications" under that definition in the Code. The Code specifically identifies "labels or packaging for products" as being excluded from the definition of "Advertising or Marketing Communications" and therefore outside the scope of the Code.
The Board found that the swing tag did constitute "Advertising or Marketing Communications" within the meaning of the Code, and therefore should be considered in conjunction with the other advertising materials.
In its consideration of whether a swing tag is a label or not, within the meaning of "Excluded Advertising or Marketing Communications", the Board expressed the view that, while each situation will need to be assessed on a case-by-case basis, a tag which is clearly intended:
- to promote the product and to encourage the purchase of the product; and
- to be removed from the product prior to its use,
is much less likely to be considered a label than a tag which is intended to remain on a product and to convey important information about a product on an on-going basis.
The Board considered that the swing tag used by Samsung on the Motion Sync vacuum cleaner is material that "draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product", as is contemplated by the definition of "Advertising or Marketing Communications" under the Code.
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