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ACCC pursues Lorna Jane for alleged anti-virus activewear claims

The Australian Competition and Consumer Commission (ACCC) has instituted proceedings in the Federal Court against activewear brand Lorna Jane for alleged false or misleading claims about its ‘Anti-virus Activewear’, in breach of Australian consumer law.

In July 2020, Lorna Jane claimed that its ‘Anti-virus Activewear’, which was sprayed with a substance called ‘LJ Shield’, eliminated and stopped the spread of COVID-19 and provided protection against viruses and pathogens, including COVID-19, when this was not the case.

The claims were made over a range of media including on Instagram, the Lorna Jane website and in stores. Most of the claims were removed in mid-July, but until at least November 2020 Lorna Jane continued to represent on garment tags that the garment permanently protected the wearers against pathogens.

“It is particularly concerning that allegedly misleading claims that Lorna Jane’s LJ Shield Activewear could eliminate the spread of COVID-19 were made at a time when there was fear about a second wave emerging in Australia, especially in Victoria, and all Australians were concerned about being exposed to the virus,” ACCC Commissioner Sarah Court said.

The ACCC also alleges that Lorna Jane represented that there was a scientific or technological basis for these claims at the time they were made, when no such testing had been carried out.

“We allege that the statements made by Lorna Jane gave the impression that the COVID-19 claims were based on scientific or technological evidence when this was not the case,” Court said.

“We are particularly concerned about this because consumers often trust well-known brands and assume that their marketing claims are backed up by solid evidence.”

This year the ACCC prioritised consumer and competition issues arising from the COVID-19 pandemic and said it will continue to look closely at allegations relating to companies seeking to take advantage of the crisis by engaging in illegal conduct to enhance their commercial position or harm consumers.

It is also alleged that Lorna Jane director and chief creative officer, Lorna Jane Clarkson, was knowingly concerned in the alleged conduct, including by personally making false or misleading claims about the LJ Shield ‘Anti-virus Activewear’ in a media release and a video posted on Lorna Jane’s Instagram account.

The ACCC is seeking declarations, penalties, injunctions, corrective notices and an order to implement a compliance program.

A statement from Lorna Jane commented: “We have assisted the commission in its investigations to date and are extremely disappointed that the commissioner has decided to start court action. We will be defending ourselves in the Federal Court against the commission’s allegations. As the proceedings are now before the court, neither the company nor Ms Clarkson will be making any further comment at this stage.”

On 17 July 2020, the Therapeutic Good Administration (TGA) issued three infringement notices to Lorna Jane, totalling $39,960.

The action taken by the TGA was separate to the ACCC’s proceedings. The TGA’s action related to Lorna Jane’s failure to register goods on the Australian register of therapeutic goods, a breach of the advertising code and Lorna Jane’s failure to seek TGA approval prior to making certain claims.

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