More often than not consumers see and read headline advertising,
such as "Fly to Sydney for $50". However, it is very common that
such headline advertising is subject to the terms and conditions
attached to them.
Sometimes consumers can be misled or deceived by a headline
advertisement if they are not drawn to the fine print in the terms
and conditions of the advert or there is a great disparity between
the headline advertisement and its terms and conditions.
Therefore, persons who use headline advertising to promote their
goods or services must be careful not to breach sections 9 and
13(i) of the Fair Trading Act 1986 ("the Act"), which provides
- No person shall, in trade, engage in conduct that is misleading
or deceptive or is likely to mislead or deceive.
- No person shall, in trade, in connection with the supply or
possible supply of goods or services or with the promotion by any
means of the supply or use of goods or services:
Make a false or misleading representation concerning the existence,
exclusion or effect of any condition, warranty, guarantee, right or
If you put out a headline advertisement to the public at large
or to a target audience, then it will be subject to the public or
the target audience perception of the advert, except to persons who
are unusually not smart or ill equipped, or those whose reactions
are extreme or farfetched.
The object of the Act is to protect consumers. The Courts will
look at the following if a headline advertisement has breached
section 9 and 13(i) of the Act in respect of consumers at large or
if the advert is targeted to a particular audience:
- What is the dominant message of the headline
- What is the overall impression of the headline
- What proximity does the headline advertisement have with its
terms and conditions;
- What prominence does the terms and conditions have with the
- Whether the terms and conditions cause the headline
advertisement to be misleading or deceptive;
- What disparity (if any) is there between the headline
advertisement and the terms and conditions.
From applying the above, the Courts will look at whether an
advertisement as a whole has lured consumers into a mistake by a
wrongful belief caused by the advertiser.
Consumers can file a complaint to the Commerce Commission if
they feel they have been misled or deceived by a headline
If you use headline advertising to promote your goods or
services, we can review your headline advert and its terms and
conditions to ensure you are not breaching our consumer laws. If
you believe a competitor is breaching the law we can review the