Mosaic Brands Limited, an ASX listed company, has paid penalties totalling $630,000, and admitted that it breached the Australia Consumer Law in its promotion of pandemic-related ‘Health Essential Products’.
Mosaic Brands is the largest speciality fashion retail group in Australia. It owns well-known fashion brands Noni B, Autograph, BeMe, Crossroads, Katies, Millers, Rivers, Rockmans and W.Lane and operates about 1210 stores nationally.
The ACCC issued five infringement notices to Mosaic Brands in respect of alleged false or misleading representations relating to hand sanitiser and face masks advertised on Mosaic Brands websites and via direct marketing between March and June 2020.
Specifically, the infringement notices related to advertising by Mosaic Brands which stated that:
- Air Clean hand sanitiser sold on the NoniB website contained 70 per cent alcohol, when a sample tested by the ACCC was found to contain 17 per cent alcohol;
- Miaoyue hand sanitiser sold by Millers contained 75 per cent alcohol, when a sample tested by the ACCC was found to contain 58 per cent alcohol;
- Velcare-branded hand sanitiser products sold on its websites were ‘WHO-approved’, when they were not;
- KN95 Kids Safety Face Masks sold on its websites were ‘CE/FDA certified’, when they were not; and
- KN 95 Adult Face Masks were” non-refundable”, when in fact consumers have a statutory right to a refund under the consumer guarantee remedies.
The ‘Health Essentials’ products were promoted at a time when COVID-19 restrictions were first announced by federal and state governments and there was intense public concern regarding the availability of sanitiser and face masks. Tens of thousands of hand sanitiser and face mask products were sold on Mosaic Brands’ websites.
The products were marketed with phrases such as ‘Be prepared’, ‘Stock up now before it’s gone’, ‘Remain Healthy’ and ‘Stay Safe and Clean’, as well as references to the pandemic such as ‘These are uncertain times and as the COVID-19 situation changes, we will be too’ and ‘It’s important we are all doing our part to protect the most vulnerable’.
“After a complaint from CHOICE, independent testing of the hand sanitisers commissioned by the ACCC found that one of the sanitisers tested contained an alcohol content of 17 per cent and another had an alcohol content of 58 per cent, below the percentage advertised on Mosaic Brands’ websites in each case. This was also below the minimum 60 per cent alcohol concentration recommended by Australian health authorities,” ACCC Deputy Chair Delia Rickard said.
Mosaic Brands’ websites, such as NoniB.com.au and Katies.com.au, also advertised Velcare hand sanitiser with the tag-line ‘Protect yourself from viruses and germs during uncertain times with this 10 x Pack of 100ml WHO-approved Hand Sanitizer’. The World Health Organisation does not approve or certify hand sanitiser products.
“Businesses must never mislead their customers about the certification, quality or properties of their products, but we were particularly concerned about the representations by Mosaic Brands because the statements which Mosaic Brands has admitted were false or misleading related to certain protective health properties at the time of a global pandemic,” Ms Rickard said.
“Our investigation also found that Mosaic Brands’ Kids KN95 mask was not certified by European and US standard authorities as they had advertised.”
Mosaic Brands also signed a court-enforceable undertaking agreeing to refund customers under a redress program, implement a three-year compliance program and properly substantiate its claims with respect to hand sanitisers and face masks, including by independent product testing.
Mosaic Brands admitted in the undertaking that its conduct contravened the Australian Consumer Law.
A copy of the undertaking can be found at https://www.accc.gov.au/public-registers/undertakings-registers/mosaic-brands-limited
Details of refund program to customers
Over the next three months, Mosaic Brands will identify and contact consumers who:
- purchased sanitiser in the same batches as the samples which tested below advertised alcohol concentrations to arrange a refund of the purchase price;
- purchased the KN95 Kids Safety face masks to arrange a refund of the purchase price; or
- were originally refused a refund on the basis the product was non-refundable, and invite them to have their refund re-assessed.
In addition, any customer who purchased the Velcare product relying on the representation that the product was ‘WHO-approved’ can also apply for a refund. A corrective notice and further information about how to apply for a refund will be made available on the websites of Noni B, Autograph, BeMe, Crossroads, Katies, Millers, Rivers, Rockmans or W.Lane.
The ACCC can issue an infringement notice when it has reasonable grounds to believe a person or business has contravened certain consumer protection provisions in the Australian Consumer Law. The payment of a penalty specified in an infringement notice is not an admission of a contravention of the Australian Consumer Law, which also sets the penalty amount.
The Therapeutic Goods Administration recommends that consumers seeking an effective alcohol-based sanitiser during the COVID-19 pandemic should look for formulations which include at least 60 per cent alcohol – https://www.tga.gov.au/hand-sanitisers-information-consumers
In late 2020, the Consumer Goods (Cosmetics) Information Standard was updated with new requirements specific to hand sanitiser. Hand sanitiser manufactured from 24 May 2021 must display the amount of alcohol contained in the product, shown as a percentage (%) by volume.