A national television and print sunglasses safety warning campaign by hamburger chain Hungry Jack's has been ordered following Australian Competition and Consumer Commission Federal Court action.
"The Federal Court has accepted undertakings by Hungry Jacks to refund consumers the cost of sunglasses sold since 1 September 1996 which were not marked as being unsuitable for driving," ACCC Chairman, Professor Allan Fels, said today.
"The ACCC moved swiftly in this matter as it concerns product and driving safety," he said. "The sunglasses being sold in the Hungry Jacks promotion failed the mandatory product safety standard and were not suitable for use whilst driving. The ACCC approached Hungry Jacks to recall and re-label the sunglasses and to properly advertise their withdrawal on television and in print. The ACCC took court action because it believed the action taken was insufficient.
"The ACCC's action was vindicated by the Court, with Justice Carr commenting:
'Viewing the evidence overall, I find that it is likely that there is a substantial (or at the very least a significant) number of the respondent's customers who, having bought these sunglasses without being warned that they were not suitable for driving, may wear them while driving. I have already held that in those circumstances there is a significant risk of an accident occurring when they drive from bright sunlight into a shady or dark area. I do not think that sufficient has been done to warn those customers.'
Justice Carr also said:
'I think I can infer from this [evidence on the television promotion] (and I do so infer) that newspaper advertisements, and in particular such small advertisements, would be a relatively ineffective means of communicating with such customers.
Professor Fels noted also Justice Carr's comments on Hungry Jacks first corrective television advertisements:
'I have viewed two television advertisements for the Shades promotion broadcasted on behalf of the respondent in the earlier stages of that promotion. I have also viewed what appears to be identical television advertisements with what the respondent describes as a 'pull through' .... comprising a message to the effect that Shades are not suitable for driving. That message is shown very briefly and in very small print. I doubt whether, had I not been looking for it, I would have noticed the warning. I discount heavily the effect, if any, which that modification to the television advertising may have made.'
Hungry Jacks has been ordered, within seven days, to place corrective three-column by 20 centimetre advertisements in the first six pages of a major daily newspaper in Victoria, Queensland, South Australia, Western Australia, South Australia, the ACT and Northern Territory. In addition it has been required, within seven days, to publish corrective advertisements on television stations which ran the original promotion. The advertisements are to run for two weeks, twice during the week between 6pm and 10.30pm and on weekends between 12 noon and 10.30pm. The form of the television advertisement is to include words and 'voice-over'. In-store corrective advertising it to continue to 30 November 1996. Hungry Jacks will pay the ACCC's costs.
"It is appropriate that Hungry Jack's, having spent large amounts of money promoting the sunglasses, should now spend adequate amounts for corrective purposes," Professor Fels said.
He said the judgement was a clear warning to companies that corrective advertising must be prominent and easily understood.
Professor Fels expressed great disappointment that Hungry Jack's failed to act adequately on warnings given by the ACCC.
"Had the company acted promptly and sufficiently a lot of time and money would have been saved by all parties," he said. "The case serves as a warning to those who fail to deal with ACCC concerns adequately. Ineffective corrective advertising will not prevent ACCC enforcement action."
He said the ACCC was vigilant in upholding mandatory product safety standards and that sunglasses were the subject of scrutiny at present.
"Sunglasses are widely used in this country as both a fashion item and protection against our strong sun. It is imperative that consumers are not mislead about the nature of the sunglasses they are purchasing.
"Indeed, they may pay a premium for particular glasses because they believe they will afford a level of protection or are suitable for a certain activity when they are not."
Professor Fels said another sunglass supplier had recently recalled glasses labelled as being suitable for drivers after ACCC intervention.
"Queensland sunglass importer and wholesaler Pacific Optics Pty Ltd has agreed to recall Aerial Vision yellow-lensed sunglasses, and re-label four further types of sunglasses," he said.
"Pacific Optics provided tests that showed the Aerial Vision yellow-lensed glasses were not suitable for driving and did not meet the mandatory product safety standard. It also identified a further four types of sunglasses which needed to be re-labelled. Pacific Optics has co-operated by recalling yellow-lensed Aerial Vision glasses off the shelves and re-labelling four types of sunglasses to comply with the standard.
"Earlier this year, the ACCC forced the recall of a number of brands of sunglasses and is currently surveying sunglasses available in Brisbane, Perth and Adelaide. Some will be tested against the mandatory standard.
Professor Fels called on retailers and wholesalers to ensure that their products met the standard.
