One of the legal issues of marketing in the health-related and fitness industry that can often be observed is that of false and deceptive advertisements. It is a broad term that includes intentionally false claims and those which are technically true but make an impression that the offered product or service is actually better than it seems (Australian Government 12).
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For instance, the marketing campaign of the fitness program may include claims of the advantage in time of achieving certain results. This can take the form of the statement, such as “the best results possible in one month.” In the case when there exists a study that aggregates the data from several popular fitness programs and gives average possible achievements in quantifiable form, and the program in question can indeed produce results superior to those from the study’s findings, such claim can actually be qualified as true.
This, however, does not guarantee the favorable decision of the court. According to section 18 of the Australian Consumer Law, the party is liable for the deceptive claim even if its misleading nature was not intentional. In other words, the claim which may be interpreted by the customer as “the program offers an advantage over its closest competitors” is still considered an unfair marketing technique even though its intended meaning is “there is evidence of the possible advantage” unless the wording excludes misinterpretation (Australian Government 14).
Another likely issue that may arise during the advertising of the fitness program in question is the inclusion of premium claims. Such claims are used to create an impression of the service’s superiority over competitors. In this particular case, the description mentions the “state-of-the-art gym equipment,” a claim that by its nature suggests that it is of the unusually high-quality level or is otherwise prominent. Because of this, the customers may get the impression that such a feature is unique to the service that is being advertised and that other programs lack it. Again, despite the vagueness of the claim, such a technique may be ruled out as deceptive marketing.
Finally, the growing popularity of social networks introduces a range of issues connected to false claims on the official resources related to the product and, more importantly, customer feedback moderation. While the former is regulated by the same principles as described above, the latter demands special attention.
First, the information on the official page or social media account of the company is usually considered under the responsibility of the owner. Thus, the unsubstantiated claim regarding the effectiveness of the program may lead to prosecution even if it was posted by the unaware (or genuinely mistaken) customer (ACCC par. 2). Such a condition naturally requires the firm to allocate some resources to the moderation of the account, which may be a challenging task in case the customer base is huge.
More importantly, the terms and conditions of the moderation process need to be explicitly stated to avoid further issues. Such policy may prove challenging for the reasons mentioned above (e.g. some of the comments may be formally true yet unintentionally misleading), but as long as there exists a chance that the customer enters an agreement based on such information, the resource owner may be held accountable for it. An alternative policy of responding to the questionable claims can be utilized, but the possibility remains that the court will rule out the comment as insufficient for dispelling the deception.
Second, genuine and non-misleading feedback provides an excellent opportunity for the marketing campaign. However, several issues exist here, as well. The moderation of the untrue claims is a necessity, but the selective removal of unfavorable feedback, while leaving the positive reviews in place, can be viewed as an unfair business practice. Similarly, the creation of fake positive reviews and testimonials and placing them on the official page is considered unlawful (ACCC par. 4).
Similarly, the editing process is unacceptable, as even the slight change in the original text, not necessarily related to the nature of the comment or the characteristics given to the program, will still be considered a violation of the law. While the project does not necessarily imply the use of the Internet as a marketing platform, its popularity makes it an extremely likely candidate for the advertising campaign.
Another marketing practice explicitly forbidden by the Australian legislature is spam – numerous generic messages delivered mostly via electronic means: cellphones, messaging software, and emails. Spam has long been established as both prohibited and undesirable business practice, as it is commonly associated with decreased customer satisfaction in addition to its unsolicited nature. While it is likely that the campaign in question will distance itself from the use of spam as it is currently understood, additional attention should be paid to the regulations instilled by the Australian Spam Act 2003 to exclude the possibility of unintentionally falling within this category (ACMA par. 3).
Telemarketing should also be avoided unless deemed beneficial for the campaign. The reason for this is the number and severity of regulations aimed at the practice. The Do-Not-Call Register effectively excludes the possibility of marketing the services via personal phone, and the Australian Consumer Law introduces a number of limitations that render the door-to-door sales virtually ineffective (“Competition and Consumer Act 2010” par. 28). It is thus more likely that these practices create more issues than benefits if used.
Finally, the contract terms may become a legal issue in case the document is improperly conceived. Parts 2 and 3 of the ACL contain an extensive list of characteristics which categorize the contract as unfair, such as the consumer liabilities for something not under their control, lack of liability for negligence, and the possibility of operating the customer’s bank account without notice, among many others (Australian Government 13). For instance, if the membership terms, especially the fee, can be altered by the firm without notifying the customers or providing them with means of compensating damages, such a contract is unfair and can not be used.
The less likely but still considerable issues are the privacy concerns and advertisements standards violation. The former may become an issue during the marketing research conducted prior to offering services or during the course of the program. If any data collection is involved, it is necessary to make sure to specify to the customers the intentions of its collection and preservation, as well as possible risks related to the breach of privacy or the possible inaccuracies in the process.
Otherwise Australian Information Commissioner Act 2010 can be violated (“Australian Information Commissioner Act 2010” par. 19). The latter can become an issue if the advertisement includes inappropriate materials. For instance, the TV commercials of the fitness program will likely include partial nudity and the content which may be deemed sexually charged. The Advertising Standards Bureau explicitly specifies that no direct relation exists between the depiction of fitness activities and nudity, but the statement primarily targets swimsuits, so additional caution is advised (Advertising Standards Bureau par. 8).
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ACCC. Firm Fined for Testimonials by Facebook “Fans” and Tweeters, 2011. Web.
ACMA. Spam Act 2003 FAQs, 2016. Web.
Advertising Standards Bureau. Sex, sexuality and nudity: determination summary, 2016. Web.
Australian Information Commissioner Act 2010, 2014. Web.
Australian Government. The Australian Consumer Law – A Framework Overview, 2013. Web.
Competition and Consumer Act 2010, 2013. Web.