The Federal Court of Australia has granted preliminary discovery in L’Oréal Australia Pty Ltd v BrandPoint Pty Ltd [2015] FCA 978 with respect to product claims made in relation to the PuraSonic facial cleansing brush.

Immortalised by Justice Beach as “a product marketed to the fairer sex with the allure of its miraculous transformational properties”, the application concerned representations made in an email sent to retailers by BrandPoint Pty Ltd at the time of the launch of the PuraSonic cleansing brush in October last year. Representations were also subsequently made on the PuraSonic website that differed to the representations made in the earlier email.

The email representations included a number of unsupported claims regarding ‘efficacy research’ allegedly conducted in relation to the performance of the PuraSonic cleansing brush. The email representations were very similar to the results obtained and referred to in marketing material associated with studies conducted before 2008 in relation to L’Oréal’s competing product, the Clarisonic cleansing brush.

BrandPoint had previously been the exclusive distributor in Australia and New Zealand of the Clarisonic cleansing brush and, as such, had received Clarisonic’s technical and marketing information.  L’Oréal subsequently acquired the Clarisonic range internationally, and the distribution arrangement with BrandPoint expired in 2012.

The obvious suggestion was that BrandPoint had simply lifted the product claims previously made in relation to the Clarisonic cleansing brush for use in relation to BrandPoint’s PuraSonic cleansing brush, without independently verifying whether the claims were substantiated for the competing, but not identical, product.

Justice Beach described BrandPoint’s evidence in relation to the efficacy research to be “thin, if not evasive”. While there was evidence to support the later website representations, there was “only a vague implication” that testing may have been conducted at the time the PuraSonic email was sent to retailers claiming specific results. BrandPoint conceded the email was a draft sent in error to approximately 26 retailers ‘as far as I can tell’.

BrandPoint attempted to argue that L’Oréal Australia had not satisfied the threshold requirements for preliminary discovery, in that it had not made reasonable inquiries, namely purchasing a PuraSonic cleansing brush and conducting its own tests to substantiate the accuracy of the representations made by BrandPoint.

Justice Beach rejected that this was necessary and noted that despite repeated requests, BrandPoint had refused to provide information to substantiate or explain the product claims prior to proceedings being commenced by L’Oréal Australia.

L’Oréal Australia was found to have satisfied the threshold requirements for preliminary discovery with respect to BrandPoint’s email representations. His Honour noted that there was a reasonable basis for claiming that no appropriate trials, testing or analysis was carried out in relation to the PuraSonic cleansing brush by BrandPoint when the email was sent to retailers. As such, there was also a foundation for saying that the representations were misleading or deceptive or likely to mislead or deceive the retailers who received BrandPoint’s email.