Insights into litigation, sports law, media and legal culture

Does ‘Genie Slim Jeggings’ advertising cross the legal line?

There is real life, and then there is fantasy. ‘Real life’ is being fatter than before Christmas, thanks to a January diet interrupted by bouts of feasting. ‘Fantasy’ is convincing oneself that things will shortly improve because “I’m at my thinnest in March”.

This is where Genie Slim Jeggings come in. Why bother with exercise when for only 5 payments of $11.99 (plus $9.95 posting and handling) you too can own a pair of blue Genie Slim Jeggings and get a grey and black pair for free? An excitable woman in the advertorial promises me that if I buy this product then, “Goodbye bumps and bulges! Say hello to my dangerous curves!

Source: Global Shop Direct

Source: Global Shop Direct

Source: Global Shop Direct website

Source: Global Shop Direct website

 

 

 

 

 

So too, other testimonials with ‘before and after’ images promise me that Genie Slim Jeggings stretch to almost any size, have a special lifting design, act as a body shaper and “cover my muffin top!”

Well, what are Genie Slim Jeggings? Given that advertorials must always be right, let’s see what Global Shop Direct, the Australian online distributor of Genie Slim Jeggings, says about them:

  • The comfort of leggings, the look of jeans
  • Fit like leggings, look like sexy skinny jeans
  • Made with a special blend of shape enhancing fabrics
  • Ultra light weight

Even better, Global Shop Direct offers a “Satisfaction Guarantee”: “Purchase any product from Global Shop Direct and try it in the comfort of your own home for 30 days. If for whatever reason you’re not completely satisfied, then return the product within 30 days”.

 

Source: Global Shop Direct website

Source: Global Shop Direct website

Using my best advertorial speak, I had to try this product for myself! Particularly after I had done my Internet research and been intrigued by the plethora of ONE star reviews (out of five)! Could the following comments be correct?

“I feel like I’m inside a boa constrictor.”

“I would give it less than one star.”

 “No way would I squeeze my granddaughter into them”.

 “When you walk 50 meters or less or bend down you have to pull them up. Doing this is in a shopping center can be embarrassing to say the least.”

“Embarrassing to wear out in public with obvious fake button, stitching and front pocket”

“I…was astonished to see nothing that look like skinny jeans but rather skinny pairs of long spanx-like products with fake front pockets and zipper PRINTED on to the material.”

 “Like everyone else I bought into this crap.”

 “They claim to give you a slimmer appearance and this may be true because the half of my butt that was covered was smushed flatter than a pancake (not the look I’m going for).”

 “I bought a size…which they say is for 24-26. I am a size 16 and they won’t even go up my leg!”

Basically just shiny cheap leggings with faux jean imprints around the waist area. Extremely ugly, not worth even a 10th of the purchase price. Totally false advertising!”

In fairness, the reviews were not all one-way traffic (just about 90% one-way). For example, ‘Linda’ said:

I am a young minded grandmother, I fit in with the 40+ folks. The quality and designs are great, and of course they are not as durable as denim, but baby they make the legs look sexy, and curvy.”

After what felt like a few months (because it was), my Genie Slim Jeggings arrived in the post. The box had broken open but three remarkably tiny items remained inside.

My Genie Slim Jeggings have finally arrived!

My Genie Slim Jeggings have finally arrived!

Somewhat ominously, a sticker on one pair stated: ‘You’ve got to try them on to believe them’. Perhaps this is because they looked pretty bad. In fairness, they did have real back pockets. This is in contrast to the children’s-Crayola-style scribblings on much of everything else.

Uh Oh. There's a funny sticker on one of them

Uh Oh. There’s a funny sticker on one of them

Against interest, I took the sticker ‘promise’ on board and tried on my new Genie Slim Jeggings.

Then, putting self-respect to one side, I obtained input from a focus group of barristers on my floor (in a statistically sound sample of those still around at 6.30 pm). There were plenty of guffaws and one attempt to be kind: “They look like a wet suit.”

See what you think.

Step 1 – Start with an unflattering photo in designer jeans

Here I am standing front on

Here I am standing front on

Stand differently and those designer jeans look a bit different

Stand differently and those designer jeans look a bit different

Step 2 – Contrast to Genie Slim Jeggings

Genie Slim Jeggings front on

Genie Slim Jeggings front on

The blue pair

The blue pair

IMG_0106

Nice drawings on the black pair!

Nice drawings on the black pair!

Overview of legal issues

Many of us have heard of the Australian Consumer Law (ACL). How could it apply to a case of this kind?

Section 18(1) of the ACL provides: “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

Section 29 of the ACL is another key provision. This lists types of false and misleading claims, specifically including testimonials (s.29(e) & (f)). Note that broadcasters are typically exempt under the ACL as ‘information providers’ (s.19) but may lose this protection for advertorials essentially adopted as part of their programming. Also consider the effect of section 23 ACL that prohibits unfair terms in consumer contracts.

For an enquiry under section 18 of the ACL, one must identify the conduct complained of and then consider whether it has the tendency to lead a consumer into error. The term ‘error’ refers to mistaken impressions caused by the advertising claim. Confusion is not enough.

Importantly, when assessing advertising claims, one must consider the effect of the conduct complained of on hypothetical reasonable or ordinary members of the class of prospective purchasers. Exceptional carelessness or stupidity may be disregarded.

A not insignificant number within the affected class must be capable of being impacted.

The conduct must also be commercially relevant, in that the advertiser, for instance, is trying to attract sales based on the misleading or deceptive conduct (certainly the case here).

Assessment of Jenie Slim Jeggings advertising claims

What is the relevant class of prospective purchasers of Genie Slim Jeggings? Another way to test the question might be to ask, who is excluded from the class?

One can reasonably expect that the following people are not prospective purchasers of Genie Slim Jeggings:

  • Men
  • Women who would not be seen dead in jeans or leggings
  • Women who only shop in-store and do not buy online
  • People not influenced to buy by television advertorials
  • People not computer savvy
  • Women who have the perfect figure and/ or are happy with their bodies

That leaves a lot of people in the class of prospective purchasers. In other words, Genie Slim Jeggings are a mass market product.

What are the attributes of ordinary and reasonable members of the class who buy Genie Slim Jeggings? Let’s think of a few:

  • We know that the term ‘jeans’ means casual trousers made of denim or another hard wearing fabric
  • We know that the term ‘leggings’ means comfy, stretchy, close fitting tight-like pants often worn to the gym
  • We are likely to appreciate that ‘Jeggings’ means a hybrid between jeans and leggings, neither one nor the other, but probably a little of both
  • Designer jeans can retail between AUD $100 to at least AUD $300
  • Genie Slim Jeggings are an inexpensive product compared to designer jeans
  • Claims made in advertorials are frequently entertaining but also somewhat over the top
  • Buying online or by telephone involves a degree of guess work when it comes to size

Therefore, it might follow from this that when women look at a Genie Slim Jeggings advertorial, they appreciate that the claims (‘The comfort of leggings, the look of jeans’; ‘Fit like leggings, look like sexy skinny jeans’) are probably exaggerated. However, we hold out the hope that our skepticism will prove unjustified.

Unfortunately, this is not the state of mind that would convince a court that we have been led into error.

Judges love using the term ‘mere puffery’ to describe advertising claims they have found are not misleading or deceptive.

Many of the Genie Slim Jeggings claims might satisfy a description of puffery. For instance, ‘sexy’ is a highly subjective, generalized term capable of meaning anything.

Imagine a judge being asked to find that the makers have engaged in misleading or deceptive conduct because Genie Slim Jeggings are not sexy. What kind of evidence would a plaintiff need to prove that proposition…?

That said, the more specific the claim, the greater the risk that it will cross the line. Take, for example, ‘made with a special blend of shape enhancing fabrics’. The FAQs of Global Shop Direct explain that this ‘special’ blend is “Polyester and Spandex”. Hmm.

Interestingly, the written claims on the Global Shop Direct website (‘shape enhancing’) are less extravagant than the testimonials in the embedded video on that website (‘lifting design’; ‘body shaper’). As a warning to those behind such websites, if the testimonial claims over-reach and are not true, the website provider will likely be responsible for them too.

The adoption of third party testimonials risks an assumption of liability if those claims are false. In this case, the testimonials (or ‘purported testimonials’ if they have been supplied by paid actors) do appear part of the advertising intended to promote the products.

In a 2003 case about the Abtronic (which featured heavily on late night advertorials and during Network Ten’s Good Morning Australia and Bright Ideas programs), even the defendant admitted it could not justify the following very specific claims: “The Abtronic had a fat and cellulite blaster setting that could work on fat and not on a person’s muscles”, “The Abtronic could flatten a person’s stomach once and for all”; and “10 minutes use of the Abtronic was the equivalent of up to 600 sit-ups”. However, Justice Dowsett was less convinced that a number of the more general claims were misleading or deceptive: ACCC v Danoz Direct [2003] FCA 881

The bad news only in the fine print

Always look at the fine print before you buy, if you want to be fully informed about what you are doing. Here, this involves clicking on the terms and conditions in micro font at the bottom of the Global Shop Direct website.

You have to scroll past the Index, past the sales support number, past the invitation to join the mailing list, past the site map, and then – on the very last line of the home page – you will see 100% Genuine | Privacy Policy | Terms & Conditions | FAQs | Contact Us. Click on Terms & Conditions. Note: the enforceability of such micro-font terms and conditions under Australian law has not been properly tested.

This is what you will learn:

  • The risk of loss and damage to the product passes to the customer on the date and at the time that it is removed from storage for delivery (clause 4.1 and 6.1). In other words, damage during the course of delivery is the consumer’s fault.
  • Compulsory postage and handling charges apply ‘per item’ so that multiple orders made in the same transaction will incur multiple postage and handling charges (clause 5.4). In other words, this is a neat way to advertise a lower price but use a back door method for charging more.
  • Your contact details may be used to tell you about special offers and other products from Global Shop Direct and other selected companies. Further, you only have two weeks from placing the order to opt out (clause 17.2).

What the fine print says about the Satisfaction Guarantee

You will recall that the Satisfaction Guarantee promises us that we can try on the product in the comfort of our own home for 30 days and that if we are not happy we can return it within 30 days.

This language strongly implies that time starts to run on the 30 days from the date of delivery. But is this supported in the fine print?

To be frank, the terms and conditions in this respect are perplexing and confused. Here is what we do know:

  • For the most part, time starts to run on ‘30 days’ from the date recorded on the order receipt. In other words, time does not run from the delivery date of your Genie Slim Jeggings, but likely from when that email lands in your inbox confirming that you have submitted your online order.
  • Accordingly, any customer claim as to incorrect performance or breach of the terms and conditions must be made 30 days from the order receipt (clause 7.1)
  • So too, the seller’s warranty that the product will be free from defects also only lasts for 30 days from the order receipt (clause 8.1 and 8.2)
  • Pausing there, how long does it generally take for Genie Slim Jeggings to be delivered? Here is what the FAQs (click the next link after Terms & Conditions) say:

Screenshot 2016-02-25 11.00.59

  • That’s right, based on the above delivery estimate of up to 28 days, you will often have only 2 days to make your claim, bearing in mind that: “any delivery times notified to the customer are estimates only and the seller is not responsible for late or non-delivery” (T&C, clause 5.1).

Hint: if you think this is unfair, consider the effect of section 23 ACL concerning unfair consumer contract terms, referred to above. Julie Clarke has a nice synopsis of this provision here.

  • Further, if you can be bothered returning your product, you must do so by registered mail at your own expense (clause 11.2). Don’t forget that the seller is entitled to reject the claim because it is outside time, the problem occurred during the delivery process, and so on.
  • Finally, if you are lucky enough to get a refund or replacement, this does not include postage and handling. You have to pay for it (clause 12.1).

Express reference to the Satisfaction Guarantee is buried within the warranty clause (where you will recall the warranty only applies for 30 days from order receipt). Clause 8.3 states: “If the Customer is not completely happy with its purchase (the “Satisfaction Guarantee”), it can return the Product for a refund, subject to the conditions contained in Clause 12 below”.

The ambiguities are these:

  • Under the Satisfaction Guarantee one can return the Product for a refund, but no guarantee is offered that a refund will be provided
  • Clause 12.1 contains the requirement that the customer is responsible for postage and/or handling
  • Clause 12.2 also informs the customer that refund requests will be processed within 30 days of receipt by the seller. In other words, expect to wait a month for the seller to decide what to do, but the clause is otherwise silent about how long you then have to wait to get a refund, if you get a refund.

Finally, what happens if you are not happy with your purchase but Global Shop Direct refuses to honour the Satisfaction Guarantee? The answer? Bad luck. Here’s why.

Let’s say I decided to return the Genie Slim Jeggings that I received a couple of months after I ordered them. After all, someone told me I looked like I was wearing a wetsuit. Hardly the shape enhancing, ‘Fit like leggings, look like sexy skinny jeans’ impression I wanted to convey. I’ve promptly called the Hotline (24 hours after delivery) and been told to return them by registered post at my own expense, which I do. I explain I’m relying on the Satisfaction Guarantee. But I receive no response, even after waiting more than a month. Infuriated, I make a claim under the terms and conditions stating: “You have breached your terms and conditions by not giving me a refund under the Satisfaction Guarantee!”.

What am I likely to get in response? You can see the pro forma letter: “We are sorry, but under clause 7.1 of the terms and conditions any claim about a breach of the terms and conditions must be made to us within 30 days of the date recorded on the order receipt. Time is of the essence. That 30 day period expired [a million years ago, before you even received the order] and so bad luck, please go away.”

 Did you expect this when you read the Satisfaction Guarantee so prominently located at the top of the Global Shop Direct website? No. Could the Satisfaction Guarantee have induced you to purchase the Genie Slim Jeggings? Possibly yes.

It is therefore possible that the ‘Satisfaction Guarantee’ is not backed up by the fine print, and offers the strongest prospect of success for a claim for misleading or deceptive conduct under section 18 of the ACL.

Conclusion

As consumers we have legal options if confronted with advertising considered to be misleading or deceptive.

Undertake the following process of evaluation to help determine whether the claim is on the right or wrong side of the line:

  1. What is the target market for the advertising?
  2. What are the attributes of the target market (putting to one side extreme, fanciful or careless attributes)?
  3. Would a not insignificant number of people within the target market be misled or likely to be misled by the claims?
  4. Are the claims specific, or puffery?
  5. Is the advertising claim backed up or contradicted by the fine print?

Hint: Always look at the fine print because, if you are not happy, it can offer fertile ground for a claim.

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