The High Court in Pretoria had the final say in the toothpaste war between the distributors of Colgate and Aquafresh when it interdicted Aquafresh from continuing to claim that its product provided “24-hour sugar acid protection”.
Judge Cassim Sardiwalla granted an urgent court order to Colgate-Palmolive, interdicting Glaxosmithkline Consumer Healthcare SA (GSK) from distributing its Aquafresh toothpaste in packaging containing this claim.
Glaxo was also given six months to put stickers over the claim on all of its products already distributed to any stores.
The court ordered Glaxo to comply with rulings of the final appeal committee of the Advertising Standards Authority (ASA) in 2017 and in May this year, in terms of which Glaxo was interdicted from competing unlawfully with Colgate by selling, distributing or advertising toothpaste products in contravention of the ASA’s code of advertising practice.
Colgate first lodged a complaint against its competitor in May 2016, arguing that the 24-hour acid protection claim was unsubstantiated, was misleading and exploited consumers’ lack of knowledge and credulity.
The ASA initially ruled in GSK’s favour, but Colgate appealed and the Advertising Industry Tribunal (AIT) ruled that GSK’s claim had not been substantiated and was misleading.
GSK in turn appealed, but the ASA’s final appeal committee ruled in Colgate’s favour that the claim was likely to mislead the consumer and must be withdrawn.
When the claim was still in use by September last year, Colgate laid a further complaint and the AIT in December last year gave GSK three months to withdraw all material bearing the claim.
GSK again appealed, but the final appeal committee confirmed the AIT’s ruling.
Colgate turned to the court for relief when GSK did not remove the claim from its packaging, but merely added the disclaimer “follow a healthy diet and brush twice daily for cavity protection” in much smaller letters.
Colgate’s legal director for sub-Saharan Africa Priyan Pillay said in court papers the Advertising Standards Authority of the United Kingdom had also ruled in 2015 that Aquafresh’s claim was misleading and not substantiated after complaints about GSK UK’s television and YouTube advertisements featuring a cartoon superhero.
He said despite the protracted wrangle between Colgate and GSK and the litany of rulings in favour of Colgate, GSK flooded the market with the offending packaging and continued to profit from its misleading claim to Colgate’s detriment.