Misleading And Deceptive Conduct: Lessons From Uncle Tobys

If you sell products or services in Australia, the way you advertise, label and promote them matters just as much as the thing you’re actually selling. The Australian Consumer Law (ACL) sets a high bar for honesty in marketing, and regulators regularly scrutinise claims made by both small businesses and well-known brands.

High-profile food brands like Uncle Tobys have, over time, attracted attention for the way “health” and other promotional claims are presented on packaging and in ads. You don’t need to be in the supermarket aisle to learn from these moments - the same rules apply to your website, social posts, email marketing and price displays.

In this guide, we’ll unpack what counts as misleading or deceptive conduct, what you can take away from cases involving household names, the common traps to avoid, and the practical steps to build compliant marketing processes in your business.

What Is Misleading Or Deceptive Conduct Under The ACL?

Misleading or deceptive conduct is about more than outright lies. Under section 18 of the ACL, businesses must not engage in conduct that is likely to mislead or deceive consumers. This covers anything from how you describe your products and services to the way you present prices, comparisons, testimonials and “health” benefits.

A key point: the law looks at the overall impression on your target audience. That means bold claims on the front of a package or hero text on a web page carry far more weight than tiny footnotes or buried disclaimers.

• Section 18 is the broad “misleading or deceptive conduct” rule and applies to almost all business conduct directed at consumers.
• Section 29 bans false or misleading representations about specific things, like price, quality, performance characteristics, place of origin and sponsorship or approval.
• The courts assess the context. Fine print that contradicts a prominent headline won’t save you if the overall impression is misleading.

If you’re unsure whether something could mislead customers, step back and ask: what would an ordinary member of my audience reasonably take away from this? If the likely takeaway isn’t accurate in all typical circumstances, you may have a problem.

What Happened With Uncle Tobys - And Why It Matters For Every Business?

Food and beverage marketing has long been a focus area under the ACL because small wording choices can materially influence a customer’s decision to purchase. Over the years, Uncle Tobys’ product packaging and advertising has drawn public discussion and regulatory attention around the way nutritional or “health” claims were presented, and how prominently qualifications were disclosed.

Without getting into the weeds of any one case, the practical lessons for all brands are consistent:

• Headline claims must stand on their own. If your bold claim (for example, “high protein” or “no added sugar”) only stacks up under special conditions or when consumed a certain way, that limitation needs to be clear and prominent - not buried in small print.
• Fine print can’t contradict the overall message. A disclaimer can clarify, but it can’t fix a headline that overreaches. If the front-of-pack or hero copy implies a benefit the average consumer won’t consistently get, the conduct risks being misleading.
• Context matters. Visuals, colours, comparative tables, and “health halo” imagery can all contribute to the impression. Even technically accurate numbers can mislead if the presentation implies something more than the facts support.
• Comparisons need apples-to-apples footing. If you’re comparing your product to a competitor or to a “regular” version, you need sound, recent data, consistent serving sizes and fair assumptions.

These lessons aren’t limited to packaged food. They translate directly to wellness products, eco claims, software performance stats, “from $X” price promotions, and more. The common thread: don’t let form outpace substance.

For a deeper dive into how courts analyse these cases, it’s worth reading through the practical breakdown of the elements of misleading or deceptive conduct and how impressions, disclaimers and context are weighed in real disputes.

Common Traps To Avoid In Marketing And Labelling

Health, Environmental And Performance Claims

Claims about nutritional benefits, “natural” ingredients, environmental impact or product performance can be powerful - and risky. To stay safe:

• Ensure you can substantiate each claim with solid evidence, ideally independent testing or recognised standards.
• Avoid broad, absolute language unless it’s always true (for example, “100% plastic-free” really does mean 100%).
• Use plain, unambiguous qualifiers where needed - and place them prominently.

Comparative Advertising And “As Much As” Claims

Comparisons to competitors or general market averages require like-for-like footing. Ensure the basis for comparison is current, fairly selected, and transparent. “Up to X% saving” or “as much as Y better” claims should reflect typical outcomes for a substantial proportion of customers, not outliers.

Fine Print And Qualifications

Disclaimers can help where the main claim needs clarification. But the law focuses on the overall impression. If your headline drowns out the qualification, or the qualification contradicts the main message, you haven’t solved the risk - you’ve highlighted it.

Component Pricing, Surcharges And Fees

Price displays must be clear. If you promote a base price, any mandatory fees or surcharges should be integrated or disclosed in a way that’s just as prominent and easy to understand. Drip-pricing (revealing extra mandatory fees late in the process) is high risk under the ACL.

When promoting discounts, ensure the “was” or “strike-through” price is genuine - it should reflect a real, recent price at which you offered the product for a reasonable period. For price display rules and practical tips, see our guide on advertised price laws.

Online Reviews And Social Proof

Testimonials and reviews influence purchasing decisions. Don’t post fake reviews, suppress genuine negative feedback, or edit customer comments in a way that changes meaning. If influencers are paid or gifted, those material connections must be clearly disclosed.

How To Build Compliant Advertising Processes

Compliance isn’t about slowing you down - it’s about setting up simple checks so your team can market with confidence. A few practical steps go a long way.

1) Map Your Claims And Evidence

Create a simple register of the product and service claims you make across packaging, website, ads and social. For each claim, keep the evidence on file (test reports, certifications, data sources). If you can’t easily prove the claim, rethink it or adjust the wording.

2) Use A Pre-Launch Checklist

Before a new campaign or package goes live, run a quick checklist:

• Is the headline claim accurate in all typical scenarios?
• Are qualifications clear, proximate and prominent?
• Are comparisons fair and up to date?
• Is the total price obvious, including mandatory fees?
• Could a reasonable customer be misled by the overall impression?

3) Align Your Digital House

Your website and app are often the first place customers see your claims. Make sure your core documents support a clear and honest customer journey, including up-to-date Website Terms & Conditions and a compliant Privacy Policy if you collect personal information.

If you run promotions or competitions, ensure your Competition Terms & Conditions set out eligibility, mechanics and prize details clearly, so the campaign’s headline lines up with the fine print.

4) Train Your Team And Approvers

Give your marketing and customer service teams simple, real-world examples of what’s okay and what’s risky. Make sure someone with legal or compliance responsibility has the final review for high-visibility campaigns or packaging changes.

5) Keep Records And Refresh Regularly

Claims can go stale as standards, competitors and your own product change. Schedule periodic reviews to confirm claims are still accurate and evidence is current. Keep dated copies of packaging, ad assets, test results and approval emails - they’re invaluable if questions arise.

What Legal Documents Help Manage ACL Risk?

Strong contracts and clear policies won’t replace compliance, but they do help manage risk, set expectations and prevent disputes. Depending on how you sell, consider the following:

• Customer Terms or Website Terms & Conditions: Set out what you sell, how orders work, payment terms, delivery, limitations and remedies. Clear terms reduce ambiguity and help align the overall impression with the legal detail. If you sell online, keep your Website Terms & Conditions consistent with your marketing.
• Privacy Policy: If you collect personal information (orders, accounts, newsletters or analytics), a compliant Privacy Policy is essential and should match your actual data practices.
• Unsolicited Consumer Agreement Terms: If you sell door-to-door or by telemarketing, ensure your process and documentation comply with the rules for an Unsolicited Consumer Agreement, including cooling-off requirements and prescribed disclosures.
• Warranties Against Defects: If you offer a warranty, your policy and wording must meet ACL rules for warranties against defects, including mandatory wording about consumer guarantees.
• Supplier And Manufacturing Agreements: Make sure upstream suppliers commit to quality standards and accurate specifications. If you rely on third-party data (e.g., test results), your contracts should ensure access to records and ongoing updates.
• Unfair Contract Terms Review: If you use standard-form contracts with consumers or small businesses, get an unfair contract terms review so key terms aren’t at risk of being void or attracting penalties under the ACL.

If you’re facing a complex campaign or high-stakes product launch, it can be helpful to speak with a consumer law lawyer early and identify tweaks that will keep your messaging punchy and compliant.

Handling Complaints And Regulators: Practical Tips

Even with good processes, questions and complaints will pop up. How you handle them can make all the difference.

• Have a clear internal escalation path. Frontline staff should know when to escalate a complaint and what they’re authorised to offer. Quick, fair resolutions reduce the risk of disputes and negative reviews.
• Assess and fix the root cause. If you see a pattern (e.g. recurring confusion about a claim), review the wording and presentation. Update ads, packaging and FAQs proactively rather than waiting for a regulator to call.
• Keep your evidence handy. If a claim is challenged, being able to quickly share testing, certifications or data sources can help resolve issues early.
• Cooperate with regulators. If contacted by the ACCC or a state fair trading body, seek advice promptly and respond openly. Demonstrating robust processes and a genuine willingness to fix issues can influence outcomes.
• Align refunds and remedies. Ensure your customer service team understands consumer guarantees and offers remedies consistent with the ACL - not just store policies. Clarity here builds trust and reduces risk.

Finally, keep an eye on your outbound marketing channels. Advertising laws and consumer protections also apply to email campaigns, so make sure your lists, consents and opt-outs align with email marketing laws and the promises you make in your privacy notices.

ACL Essentials: A Quick Refresher

A short recap of how the key provisions work in practice can help you sanity-check marketing before it goes live.

• Overall impression is king. Don’t rely on tiny caveats to fix a big claim. Make the essential limitations clear and proximate to the claim.
• Specific representations must be correct. Claims about price, origin, performance or benefits must be true for the typical customer in ordinary use and backed by evidence when needed.
• Qualify with care. If a claim only applies in certain conditions (e.g. when used with another product, or only for a subset of users), say so clearly where the claim appears.
• Keep claims current. Revisit your claims regularly as products evolve and competitor landscapes shift. Archive evidence and approvals.
• Document your process. Demonstrating a reasonable, proactive compliance process can significantly reduce legal and reputational risk.

If you want a plain-English breakdown of the key statutory hooks and how they show up in everyday business, review the guides to section 18 and section 29 of the ACL for practical examples and tips you can apply straight away.

Key Takeaways

• Misleading or deceptive conduct is judged by the overall impression on your audience - bold claims must be accurate in typical use and not contradicted by fine print.
• Lessons from high-profile brands like Uncle Tobys apply to every business: headline claims should stand on their own, qualifications must be prominent, and comparisons must be fair and current.
• Set up simple processes: map your claims and evidence, use a pre-launch checklist, train your team, and review claims regularly to keep them accurate.
• Back up your marketing with clear customer-facing documents, including Website Terms & Conditions, a Privacy Policy, and compliant warranties or promotional terms.
• Tackle complaints early, keep records, and engage constructively with regulators - it’s often the fastest route to resolving issues and protecting your brand.
• When in doubt, stress-test your campaign against the core ACL rules on misleading or deceptive conduct and false representations before it goes live.

If you’d like a consultation on advertising compliance or reviewing your product claims under the Australian Consumer Law, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.