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Steven Brown interviewed by Territory FM on the topic of, "The ACCC has put brands on notice over bogus COVID claims"

TRANSCRIPT

Mel:

The ACCC has put brands on notice over bogus COVID claims, David.

David:

I know and to set it all straight, we’re going to speak to a commercial lawyer from Lynn and Brown Lawyers, Steven Brown. Morning!

Steven Brown:

Morning Dave and Mel, how are you?

Mel:

Look, we’re good buddy. A little bit confused and concerned about some of these allegations being made by big business, about how their product is COVID safe or a COVID shield? How did they get away with these?

Steven Brown:

Yes. So, Lorna Jane came out with an advertising campaign on social media, their website, even on the labels of the clothing that they were selling stores. And when they seen that they’re called The Lorna Jane Shield, and they put out their representations that this could be a cure for COVID-19, that it would protect you from COVID-19, that you could wear it to the gym and just put it in the wash afterwards and there’s no chance then of catching COVID-19.

Mel:

That is so irresponsible.

David:

Especially when gyms are shut due to COVID. So it was just an advertising campaign. Was it actually a tangible product? Was it reality?

Steven Brown:

Yeah. So they say they’ve been trying to develop a product for a while and you probably might’ve seen in active wear that there is this thing that they are trying to develop and they’re using materials like bamboo and other things that can wicker away sweat. But what Lorna Jane did is, they went a step further and said that we’ve got something now that we’ve thrown to our product, that is actually a shield to bacteria. It’s not that active wear haven’t been moving in a direction to try and reduce the ability of bacteria and sweat and the fostering on their products, but I don’t think anyone else would be suggesting that it was able protect you from COVID-19. That’s a bit too far.

Mel:

Yeah, Lorna Jane puts out a product, said that “The LJ shield protecting you, with antivirus active wear.” Surely a brand like this, they’re a multi-million dollar company, an Australian company, surely they would have had the goods to back it up. How did they go with the defense of those claims?

Steven Brown:

Yeah. So, the claim has just been brought in the federal court by the ACCC, The Australian Competition and Consumer Commission, in December, I think that’d fall on the 21st of December, so still fairly early days in the proceedings. But they’ll be seeking all sorts of relief. So, they pulled the advertising campaign that they’re running on social media and their website and all these sorts of things, back in July last year, but there was still found to be these labels on their products that they’re selling stores, up until November 2020. So, yeah very interesting.

David:

So Steven, I just assume that active wear are tops, are like pants, leggings. If they made gloves and masks with this so-called ‘LJ Shield’, would it have worked? Did they have a leg to stand on?

Steven Brown:

Well, I’m not a scientist, Dave-

David:

Yeah.

Steven Brown:

But, from what I do know of COVID-19, I don’t think so. And that’s one of the allegations that have been brought in the proceedings by the ACCC, is that Lorna Jane was suggesting that there was scientific background and scientific research to back these representations. But what it appears is, there’s no scientific knowledge to back these representations. And that’s one of the things that they’re saying is highly misleading to the public, was that they were suggesting that there was scientific research to back these representations when it appears that there wasn’t.

Mel:

We’ve seen quite a few companies and quite a few spokespeople sort of put the wrong foot forward when it comes to claims made around COVID-19 and claimed around the Corona virus. Pete Evans was one who got a big old slap when he was claiming that he had product that would cure or perhaps keep it away. Are people or businesses, Steven, do you think they’re trying to take advantage or maybe just survive?

Steven Brown:

Yeah, well it is interesting. I mean, I think most people got a little bit more active during the periods of lockdown because there wasn’t a whole lot of other stuff they could do. Sadly, what happened in my neck of the woods, if you went out on to the park in the early morning, there was a lot of people out there, nobody went in the gyms and that type of thing. So I wouldn’t have thought active wear would have suffered that much, Lorna Jane owns 108 stores across Australia. So, their stores probably weren’t that busy, but I’m sure they were selling a lot online.

Mel:

Yeah, yeah I see your point. Yeah.

Steven Brown:

And we saw Lorna Jane Clarkson, who is the founder of Lorna Jane, as you said, an Australian company, bought the company back for something like $28 million. She’d sold a significant chunk of it and paid that $28 million just a few years ago to buy it back. And she was one of the first people who were making the representation from her personal Instagram page as well. So, it wasn’t just the company doing it in the company’s Instagram and social media and their website, but she was also, personally. And so the ACCC have joined her individually as a party to these court proceedings, as well as the company.

David:

So what’s going to happen to both parties if they get found guilty?

Mel:

Yeah?

Steven Brown:

Yeah. So, there’s multiple things that the ACCC are seeking. So, they’ll seek declarations and so that’s an order from the court to say, pretty much, you can’t do these sorts of things anymore, or that type of thing is unlawful. That there’s penalty-

David:

Yeah, stop it.

Steven Brown:

Yes, stop it, yes. And they’ll get what they call an injunction, that is actually an order saying you can’t do it ever again. They’ll get monetary penalties, they’ll be required to give corrected notices out there. And they’ll probably also require, what they’ll be looking for is for them to implement an ongoing compliance program. So, a compliance program that has a whole lot of criteria to tick about when they put something out there into the public to make a representation about their product.

Mel:

Yeah, wow.

David:

What if they can prove their actual shield works? Has anybody ever thought about that claim? [crosstalk 00:06:43]

Mel:

It’s about to go through the roof.

David:

But just imagine if their spray on mist proved that it could kill off mold, bacteria and COVID, what are the chances?

Mel:

All right. So, we’re obviously going to need Steven Brown commercial lawyer to organize or take over, I don’t know what we can do. Steven, thanks so much for the chat this morning, mate. We’re going to keep an eye on it and maybe catch up with you when the results are through.

Steven Brown:

Thank you very much, Mel and Dave. Have a great day.

Mel:

You too.

 

For more information please read our article, ‘ACCC Commences Action Against Lorna Jane for Misleading Consumers About Anti-Virus Activewear‘ or contact us to speak to a lawyer.

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