LANGUAGE

Re Australian Federation of Consumer Organisations Inc v. Tobacco Institute of Australia Limited

This is the first in a series of decisions relating to an advertisement published by the Tobacco Institute of Australia (TIA). The advertisement, which ran in several newspapers on July 1, 1986, stated that "(T)here is little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers;"  and "The London Times reported findings from the Institute of Cancer Research in Surrey, England ... that 'passive smoking' for life-long non-smokers causes no significant increase in the risk of lung cancer, bronchitis or heart disease ... The Institute's conclusions are based on a wealth of statistical detail from a study involving 12,000 people."

The plaintiff complained about the advertisement to the Trade Practices Commission (Commission) which initiated an investigation. Following negotiations between the Commission and the TIA, the TIA gave the Commission an undertaking not to re-publish the advertisement and to publish a corrective statement, in exchange for the Commission agreeing not to bring proceedings against it. However, the corrective statement did not address the broad claim about the effects of passive smoking; rather it was directed to a minor correction about the size of the study referred to in the original advertisement.

The plaintiff therefore commenced its own proceedings against the TIA alleging that the advertisement was misleading and deceptive in breach of the Trade Practices Act.

This was the hearing of the TIA's application to have the proceedings stayed on the ground that they were an abuse of process. The TIA claimed that the plaintiff did not have standing to bring the claim because the matter had already been fully investigated by the Commission.

Burchett J dismissed the TIA's application and awarded costs to the plaintiff, holding that there was nothing to prevent the plaintiff from bringing the proceedings.

The TIA subsequently appealed from this decision and lost - see: Re Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1988] FCA 373 (21 October 1988).