Consumer Protection

Proceedings Issued for Misleading Labelling
Asia Pacific

The Australian Competition and Consumer Commission (ACCC) has announced that it has issued Federal Court proceedings against Trade Quip Pty Ltd (Trade Quip) alleging contempt of court and breaches of the Competition and Consumer Act 2010 1974 No. 51 (Cth) (the Act). The ACCC allege that Trade Quip supplied more than 2000 hydraulic trolley jacks that did not comply with the prescribed consumer product safety standard. In August 2007, the Federal Court issued orders restraining Trade Quip for supplying hydraulic trolley jacks for three years. The ACCC allege that Trade Quip’s repeated breaches constitute contempt of court, as well as a contravention of the Act.
ACCC’s media release (25 July 2011)
(Source: ACCC)

New Liability for Online Sales of Counterfeit Goods
Europe, Middle East and Africa

BBC News reports that the European Court of Justice (ECJ) has ruled that sales websites such as eBay may be liable for trademark infringements if they play an “active role” in promoting counterfeit goods. According to BBC News, the ECJ considered that “optimising the presentation of the online offers for sale or promoting those offers” could render some businesses unable to “rely on the exemption from liability which EU law confers”. The ECJ’s ruling was reportedly delivered in response to a request by the British High Court for clarification of the obligations of internet marketplaces under the law of the European Union.
BBC News: eBay ‘may be liable’ for sale of fake goods, court says (12 July 2011)

Related news items:
Reuters: EU court: eBay may be liable on trademark infringements (12 July 2011)
The Independent: Court tells eBay to crack down on sellers of counterfeit goods (13 July 2011)
(Source: BBC News; Reuters; The Independent)

New Bill – Tobacco Plain Packaging
Asia Pacific

 The Tobacco Plain Packaging Bill 2011 (Cth) was introduced into Australia’s House of Representatives and received its second reading speech on 6 July 2011.

According to the explanatory memorandum, the objective of the Bill is to require plain packaging of tobacco products as part of the Australian Government’s commitment to reduce the national smoking rate to 10% of the population by 2018 under the Council of Australian Governments’ National Healthcare Agreement.

Specifically, the Bill proposes:

  • to regulate the packaging of tobacco products and the products themselves, including to prohibit tobacco company branding, logos, symbols and other images from appearing on packaging;
  • to make it an offence for manufacturers, packagers, wholesalers, distributors and retailers of tobacco products in Australia to sell, supply, purchase, package or manufacture tobacco products or packaging for retail sale that are not compliant with plain packaging requirements, and set out modes of liability;
  • to make an exception from the relevant offence provisions in relation to tobacco products for export, rather than for retail sale in Australia;
  • a general prohibition on trade marks appearing on retail packaging, except for the brand, business or company name and variant of the tobacco product which may be included in line with the requirements for “plain” packaging;
  • to prescribe further matters relating to trade marks, such as the effect on the Trade Marks Act 1995 No. 119 (Cth) of non-use of trade marks, and provide that the proposed provisions would not affect trade mark owners’ ability to protect their trade marks from use by other persons;
  • that regulations may prescribe additional packaging requirements;
  • to provide for various investigative powers and enforcement matters; and
  • to prescribe that certain existing legislation, such as the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 No. 264 (Cth), prevails to the extent of any inconsistency with provisions contained in the Bill.

(Source: Lawlex Legislative Alert & Premium Research)

Conflict of Interest Claims Challenge Spinal Study

In an article published this week in The Spine Journal, a group of spine specialists calls into question research done by fellow experts that supports the widespread use of Medtronic’s Infuse, a bone growth product. The article claims that the experts’ research, funded by Medtronic, overstates the product’s benefits while understating its risks. Previous studies had indicated potential side effects from the use of Infuse, so much so that the U.S. Food and Drug Administration required Medtronic to list them on the product’s label. However, the recent studies, funded by Medtronic, claim that the use of Infuse does not come with any complications. In response to the article, Medtronic has stated that it will retain independent experts to review the issues raised in The Spine Journal article.
Spine Experts Repudiate Medtronic Studies (28 June 2011)
(Source: New York Times)

$5 Million Fine for Misleading Broadband Advertising
Asia Pacific

The Age reports that the Australian Competition and Consumer Commission (ACCC) has been succcessful in Federal Court proceedings fining Optus $5.26 million over misleading advertising of broadband internet plans in 2010. In its judgement reportedly ruled there was an “essential vice” in the advertisements as they were intended to mislead the public about the maximum download available under the plan. ACCC chairperson Graeme Samuel reportedly welcomed the decision, warning that the ACCC had made it “abundantly clear” that it “will not tolerate this sort of advertising”.
The Age: Optus fined $5m for misleading ads (7 July 2011)

Related media item:
The Australian: Samuel says Optus was warned over misleading ads that led to $5m fine (8 July 2011)
(Source: The Age; The Australian)