The clothes manufacturer will be actively wearing penalties, declarations and other court-ordered relief if the ACCC’s case against Lorna Jane succeeds.
The ACCC has commenced proceedings against women’s activewear company Lorna Jane Pty Ltd (Lorna Jane) and Ms Lorna Jane Clarkson, the founder, co-director and chief creative officer of Lorna Jane. The proceedings concern representations that Lorna Jane and Ms Clarkson allegedly made while advertising and promoting a new line of “Anti-Virus activewear”, in breach of the Australian Consumer Law (ACL).
The ACCC alleges that both respondents falsely claimed that this clothing line, which was sprayed with “LJ Shield”, protected against viruses and pathogens, including COVID-19.
Background to the ACCC’s case
Between 2 July 2020 and 23 July 2020, Lorna Jane ran an advertising campaign promoting a new line of activewear, called “Anti-virus activewear”, that had been sprayed with a purported anti-virus substance (referred to as “LJ Shield”). This shield was described as “revolutionary” and “not a gimmick”. One of Lorna Jane’s advertising taglines was: “Cure for the Spread of COVID-19? Lorna Jane Thinks So”.
On the ACCC’s case against Lorna Jane and Ms Clarkson, there was no scientific or other technological support for these claims. Indeed, in July, the president of the Royal Australian College of General Practitioners, Dr Harry Nespolon, stated that “[t]he only thing that will be ‘terminated’ by the ‘shield particles’ is the money in your bank account”.
Also in July, the Therapeutic Goods Administration (TGA) issued three infringement notices to Lorna Jane, totalling almost $40,000, for alleged unlawful advertising in breach of the Therapeutic Goods Act 1989 (Cth). At the time, a spokesperson for Lorna Jane is reported to have stated that it was “not trying to profiteer in any way on the fear around COVID-19.” Lorna Jane rebranded its website to no longer claim that LJ Shield protected against viruses. This followed the TGA’s action, in April 2020, to issue infringement notices against Pete Evans for his “BioCharger” device which was said to be effective against COVID-19.
The ACCC’s case comes in a year during which the ACCC has “prioritised consumer and competition issues arising from the COVID-19 pandemic”, according to ACCC Commissioner Sarah Court. Ms Court stated that it was “particularly concerning” that the advertisement campaign coincided with “a fear about a second wave [of COVID-19] emerging in Australia”.
The ACCC’s case against Lorna Jane
In its Concise Statement, the ACCC alleges five misleading representations made by Lorna Jane and Ms Clarkson during the advertising campaign:
- Lorna Jane advertised that viruses would be eliminated on contact with the activewear. For example, Lorna Jane claimed on one of its Instagram stories that LJ Shield made “transferal of all pathogens to your Activewear (and let’s face it, the one we’re all thinking about is Covid-19) impossible by eliminating the virus on contact with the fabric.”
- Lorna Jane claimed that the activewear protected wearers against viruses. For instance, it advertised the activewear in-store as “Anti-Virus Activewear” and stated that “LJ Shield is here to protect you.”
- Lorna Jane represented that the activewear would stop the spread of viruses. In a media release, Lorna Jane stated: “Cure for the spread of Covid-19? Lorna Jane thinks so.”
- Lorna Jane claimed that there was a reliable basis for the representations. On its website, it claimed that testing conducted in Taiwan proved a 99.99% reduction of bacteria on the fabric tested, which used the same technology as LJ Shield. Ms Clarkson herself stated: “it is not a gimmick.”
- as recently as 27 November 2020, Lorna Jane made representations on the garment tags, which were fixed to the activewear, that the activewear would permanently protect the wearer against pathogens.
Legal grounds for the ACCC’s case
The ACCC claims that, by making the alleged representations, Lorna Jane engaged in conduct that contravenes sections 18, 29(1)(a), 29(1)(g) and 33 of the ACL. Further, the ACCC alleges that Ms Clarkson was knowingly concerned in, or a party to, Lorna Jane’s contraventions of sections 18, 29 and 33 of the ACL, for the purposes of section 224 of the ACL.
The ACCC is seeking declarations, penalties, injunctions, corrective notices and an order to implement a compliance program.
What happens next?
The case will be scheduled for a case management hearing in 2021. Lorna Jane stated that they “are extremely disappointed that the Commissioner has decided to start court action.” They confirmed that they “will be defending [them]selves in the Federal Court against the Commission’s allegations”.
The case is a reminder that when it comes to consumer advertising, the truth should never be given a workout.
Image credit: IPNS active site / Wikimedia Commons / Remixed to B&W and resized