The High Court’s decision in ACCC v TPG clarifies the primacy of the dominant message test for mass market advertising

Advertising directed to the general public, such as advertising appearing on television, the internet, billboards, buses, or catalogues, often involves a headline, or so called “dominant message”, with some qualifications in small(er) print. In assessing whether such advertising is misleading, the Courts have tested the advertisements by reference to their “impact on the conduct on the reasonable or ordinary member of the class of consumers who saw the advertisement.”1This inquiry involves a process of determining the characteristics of the reasonable consumer within the class.  For example, a Court may consider “what would a person who saw the advertisement know about a product or service advertised?” or “how would their purchasing history affect their decision making on seeing the advertisement?”

The High Court’s majority decision in ACCC v TPG [2013] HCA 54 provides important guidance on the question of how the knowledge imputed to the reasonable consumer impacts the assessment of whether advertising is misleading or deceptive. It affirms that advertising of this nature is tested by reference to the “dominant message” conveyed, even where the relevant consumer base may have other knowledge about the type of goods or services the subject of an advertisement.

Click here for more on the High Court's decision, as well as discussion of the earlier decisions of the Federal Court.