Reckitt Benckiser (Australia) Pty Limited v SC Johnson & Son Pty Limited - [2004] FCA 1237 - FCA 2004 case summary — Zoe

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Reckitt Benckiser (Australia) Pty Limited v SC Johnson & Son Pty Limited

[2004] FCA 1237

Federal Court of Australia|2004-09-21|Before: Conti J

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Court

Federal Court of Australia

Decision date

2004-09-21

Before

Conti J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Introduction 1 The applicant Reckitt Benckiser (Australia) Pty Limited ('Reckitt') seeks injunctive relief against the respondent SC Johnson & Son Pty Limited ('SC Johnson') for contraventions of ss 52 and 53(c) of Part V of the Trade Practices Act 1974 (Cth) ('TP Act'), and an enquiry as to damages suffered by Reckitt as a consequence of those contraventions. The contraventions are said to relate to product claims appearing on the aluminium packaging for SC Johnson's recently market released Clean & Pure air sanitiserproduct (or sometimes called Glade Clean & Pure), being packaging comprising a standard sized household aerosol can, and also what similarly appears on cardboard backing attached to a mini-aerosol unmarked aerosol can containing the same product. The contraventions are further said to relate to the content of SC Johnson's television advertising of the product. Reckitt originally pleaded by its amended application the contravention by SC Johnson also of s 53(a) of the TP Act, but that basis for relief was not pursued at the hearing. 2 Sections 52 and 53(c) of the TP Act respectively read as follows: '52 (1) A corporation shall not, in trade or commence, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).' '53 A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services: … (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; …' 3 Reckitt is the manufacturer and distributor in Australia of a range of household products, including what it describes as a surface spray disinfectant marketed as Glen 20, and also a more recently launched so-called 'air treatment' spray marketed as AirWick Purity. Reckitt's Glen 20 product has been marketed for almost thirty years, both in Australia and in the United States. The product Glen 20 was described by SC Johnson's Group General Manager in Australia (Mr Onsley) as 'in fact the only product in that particular segment until recently'. In addition, Mr Onsley described Reckitt as the 'leader' in the segment of the market relating to general air fresheners. 4 SC Johnson's product Clean & Pure, prefixed with the mark Glade,was first introduced for retail sale in Australia on or about 28 April 2004, the retailers being mainly supermarkets. Its televising advertising of Clean & Pure commenced at about the same time, and that television advertising is integral to the controversies the subject of the proceedings. The respective products of Reckitt and SC Johnson are often displayed for sale in retail outlets, particularly in supermarkets, close to or alongside each other. Mr Onsley described the retail trading significance of SC Johnson's recent product entry into the market in the terms 'we follow AirWick'. He claimed nevertheless that SC Johnson's new product Clean & Pure, upon the basis of market research, was being promoted as 'a real innovation in the air freshener category'. This was said to be because air freshener products merely mask odours with a strong fragrance. 5 On 18 July 2004, SC Johnson first conducted advertising by television broadcast of its product Clean & Pure, comprising the following: (i) a 30 second version featuring a male householder (called 'Pete') and a female householder, and involving a male voice over (MVO): 'MVO: Introducing new Glade Clean & Pure Air Sanitiser. Woman: We thought Glen 20 was an air sanitiser. MVO: Actually Glen 20 works on surfaces but it doesn't kill bacteria in the air. Only Glade Clean & Pure eliminates odour causing bacteria in the air. Woman: Clean & Pure doesn't just cover up or neutralise odours… it eliminates them… and it smells clean. MVO: Get odour causing bacteria out of the air with new Glade Clean & Pure Air Sanitiser. Woman: Amazing… Pete just can't get over it.' (ii) a 'cut down' 15 second version between the same householders and male voiceover: 'MVO: Introducing new Glade Clean & Pure Air Sanitiser. Woman: We thought Glen 20 was an air sanitiser. MVO: Actually only Glade Clean & Pure eliminates odour causing bacteria in the air. Woman: Amazing… Pete just can't get over it.' 6 It may be observed that this television promotional material engaged in explicit comparison between Clean & Pure and Glen 20, though no comparison was made between Clean & Pure and AirWick Purity. The predominant basis for that comparison is said to be the absence of a chemical ingredient in Glen 20 of critical significance, called triethylene glycol ('TEG'). Glen 20 advanced no claim on its packaging, or otherwise, that Glen 20 in any way destroys airborne bacteria. Both television advertisements use the expression eliminates in relation to odour causing bacteria in the air, the word air referring in context to household room atmosphere. The issues arising in the proceedings focus essentially upon the implications of the word eliminates used in that televised context, and upon the product packaging as well. 7 The broadcast by SC Johnson of the television advertisements and the marketing otherwise of Clean & Pure led to the commencement by Reckitt of the present proceedings on an urgent basis. On 27 July 2004, SC Johnson gave an interim undertaking not to further broadcast the television commercials, being an undertaking which was ultimately continued up to and including 8 August 2004. Since that time, there has been in place an undertaking from SC Johnson that it will not further broadcast the television commercials, without first giving 72 hours written notice to Reckitt of its intention so to do. 8 Reckitt seeks declaratory and injunctive relief upon the footing that the SC Johnson television commercial and packaging allegedly represent, both falsely and misleadingly: (i) that a significant or substantial portion of the odours in households are caused by airborne bacteria; (ii) that odours in households are caused by airborne bacteria when they are airborne; (iii) that by killing 'odour causing bacteria' in the air, SC Johnson's product Clean & Pure eliminates or substantially eliminates household odours by killing bacteria which causes odour in the air; (iv) that because it kills airborne bacteria when used in the household, Clean & Pure provides a meaningful sanitising benefit; (v) that the use of Clean & Pure is more effective than Reckitt's surface spray disinfectant Glen 20 in reducing household odours, because Clean & Pure kills bacteria which cause odour in the air; (vi) that Clean & Pure is more effective than Glen 20 because it kills bacteria in the air; and (vii) that because Clean & Pure kills air borne bacteria when used in the household, Clean & Pure provides a meaningful sanitising benefit. Notwithstanding those various ways in which alleged misleading etc representations are framed, the essence of the complaint boils down to the use of the expression eliminates odour causing bacteria in the air, as used both on television and on the product packaging. 9 The hearing of the oral evidence in the proceedings took place on 24, 25, 26 and 30 August 2004, and very detailed and lengthy written submissions were subsequently provided to the Court. Opening written submissions had been produced to the Court at the outset of proceedings, but the content thereof appears to have been essentially merged into the concluding submissions, to the extent that the same were apparently intended to be maintained. A substantial amount of documentary material was tendered into evidence by both parties, largely of a technical nature. I have paid regard only to that material specifically identified and relied on by one or both of the parties in their closing written submissions. Otherwise these reasons for judgment would have significantly increased in size, and in my opinion, unnecessarily so. 10 The testimonial affidavit evidence adduced by both parties in the proceedings was primarily of a scientific and otherwise technical nature, as was the thrust of much of the cross-examination. The scientific evidence emanates from experiments and researches undertaken over many years.

[2]

The text of SC Johnson's product packaging of Clean & Pure 11 The more prominent promotional material appearing on SC Johnson's standard aerosol tubular can, being placed on one 'side' or vertical circular 'half' of that circular can, is set out by varying sized lettering in the following linear sequence: 'Glade Clean & Pure air sanitiser eliminates odour causing bacteria in the air actively cleans and sanitises' Placed above eliminates is the medical symbol of a cross. 12 On the other or reverse 'side' of that circular can, and thus adjacent to the foregoing material, there appears the following, in the linear sequence appearing below: 'Glade Clean & Pure Air Sanitiser helps reduce the number of airborne bacteria in any room to leave your home smelling clean and fresh. Unlike air fresheners that only mask odours temporarily, Glade Clean & Pure Air Sanitiser eliminates tough odours such as pet odours, smoke bathroom smells and mildew. ... TO TEMPORARILY REDUCE AIRBORNE BACTERIA and eliminate odours in an average room… …close all doors, windows and air vents and spray product upward in centre of room for 10 seconds. For maximum effectiveness relative humidity should be between 45% and 70%. Resume normal room ventilation after spray has settled. …' The bold lettering signifies a darker blue colour. 13 It may be seen that the can packaging of Clean & Pure makes no explicit reference to Glen 20, in contrast to the televised advertisement, but nevertheless makes a comparative claim in relation to other air fresheners generally, by what above appears on the reverse 'side' of the Clean & Pure can. Consequently the wording on the reverse side of the can appears on what may realistically be described as the less prominent and eye catching 'side' of the Clean & Pure tubular container, where there appears more 'small print' matter than what I have reproduced above. The can discloses one active ingredient, namely triethylene glycol ('TEG'). The existence of that ingredient, and its significance, is at the centre of the issues arising in the proceedings. 14 The cardboard attachment to the mini-aerosol container of Clean & Pure air sanitiser, consistently with what appears on Clean & Pure's principal product container, displays on the front side of that attachment, in linear sequence, and again in varying sized lettering, the following: 'Glade Clean & Pure air sanitiser Concentrated Mist eliminates odour causing bacteria in the air actively cleans and sanitises' On the reverse side of that attachment, the following more prominently appears (below which are printed instructions which need not be reproduced): 'Clean & Pure New Glade Clean & Pure Air Sanitiser helps reduce the number air sanitiser of airborne bacteria to leave your home smelling clean and Concentrated Mist fresh, unlike air fresheners that only mask odours temporarily. Just a touch of the small, discrete dispenser releases an almost invisible burst that eliminates tough odours such as pet odours, smoke, bathroom smells, and mildew.'

[4]

The text of Reckitt's packaging of Glen 20 16 As to the presentation and appearance of Reckitt's Glen 20 packaging, the same comprises a tubular aerosol can of similar size and dimension to SC Johnson's product packaging, and bears prominently a green colouring, with other matching, though less prominent, colouring added as well. The front circular side of this can contains, with varying prominence, the following promotional words in linear sequence: 'PINE O CLEEN GLEN 20 Surface spray disinfectant - hospital grade SURFACE SPRAY DISINFECTANT Anti-Bacterial Kills Germs at the press of a button Original Scent.' Thus it may be seen that Glen 20 purports to be an anti-bacterial surface spray, though it does not, at least explicitly, assert that the germs which it kills adhere to surface areas alone. The can discloses incidentally only one active ingredient, namely Ethanol 60% w/w. 17 On the reverse circular side of the Glen 20 can appears in one column a number of claims as to product performance, under the following larger written linear headings: '… FAST/EASY/EFFECTIVE … KILLS HOUSEHOLD GERMS … ELIMINATES ODOURS …' Among the claims made in the same column on that reverse side of the Glen 20 can, under each of those headings respectively, again in linear sequence, appear the following: 'Glen 20 kills Influenza Virus, Mould & Mildew. Eliminates Odours. Kills Germs at the Press of a Button. … FAST/EASY/EFFECTIVE : Use on finished surfaces… … KILLS HOUSEHOLD GERMS Glen 20 Surface Spray Disinfectant kills; • Salmonella • Pseudomonas • Staph germs… • Viruses such as Influenza… … Glen 20 Surface Spray Disinfectant kills odour causing household germs in; • Empty garbage bins • Empty Laundry baskets • Bathroom basins • Toilet areas • Under sinks • Pet areas • Nappy buckets • Sick rooms. ELIMINATES ODOURS Glen 20 Surface Spray Disinfectant deodorises by killing the germs that cause odours. It eliminates odours at their source. …' Once again it may be observed that the Glen 20 can does not explicitly state that the germs which it kills are only those present on a surface, though as already emphasised, Glen 20 is prominently described as a Surface Spray Disinfectant, being the description appearing immediately above Anti-Bacterial also prominently appearing on the front circular side of the can.

[5]

The text of Reckitt's packaging of Airwick Purity 18 Reckitt's other currently marketed spray product, the subject of evidence in the proceedings, AirWick Purity, is made also in Australia, and was launched on the Australian market in May 2004, and thus some months after the launch on the Australian market of Clean & Pure. SC Johnson understandably contended that the launch occurred in response to Clean & Pure, and it would seem, inferentially so. The first television commercial promotion of AirWick Purity took place on 6 June 2004, and the packaging of AirWick Purity appears in blue and white colouring. AirWick Purity therefore appears in contrast to the colouring of its older product stable partner Glen 20, though that colouring of AirWick Purity is similar to the colour scheme of the Clean & Pure blue coloured can. Prominently appearing on each of two 'sides' of the AirWick Purity container are the words air treatment,andfurther below neutralises odour caused by germs. In what may be described as the margin between those two 'sides' appears the following: 'AirWick Purity Air Treatment provides a dual action benefit: First the formulation attacks odours caused by germs in the air. You can be sure that even tough odours caused by pets, smoke, mildew and household waste will be neutralised, and not just temporarily masked. Purity Air Treatment then refreshes the air with a light, fresh fragrance to give your home a breath of fresh air!' Both Glen 20 and AirWick Purity, as in the case of Clean & Pure, are manufactured in Australia, though they are also manufactured in the United States, doubtless on a much greater scale. 19 In the course of the evolution of the present proceedings, Reckitt sought to distinguish the claims made on the packaging of SC Johnson's Clean & Pure from those made on Reckitt's packaging of AirWick Purity. The AirWick Purity launch was designed 'to combat [the] Clean & Pure launch through creating a mid point between fragranced aerosols (AirWick base etc) and disinfecting aerosols (Glen 20)', to cite an internal Reckitt memorandum. Reckitt pointed to the feature of the AirWick Purity can packaging, namely the following prominent representation on the face of one linear side of that can packaging: 'air treatment neutralises odours caused by germs'. That was purportedly contrasted with the following representation appearing on SC Johnson's Clean & Pure can: 'eliminates odour causing bacteria in the air'. 20 SC Johnson contended that neutralise in that context could have only one meaning, namely eliminate; whilst there may be force in that submission, the AirWick Purity can claim is directed literally to odours and not to odour causing bacteria, as in the case of Clean & Pure.

[6]

Revealing internal Reckitt communications highlighted in SC Johnson's case 21 Prior to the commencement of the present proceedings in Australia, Reckitt had taken steps in the United States, inferentially with a view to reinforcing what I infer to have been the market dominance occupied by Reckitt, both in the United States and in Australia. Those steps comprised the introduction of a new air spray product, having a similar household function to Glen 20. These internal communications are revealing, demonstrating as they do the reaction of Reckitt to SC Johnson's recent introduction to the US market of the product Oust, which contains the abovementioned TEG. Thus the perceived need for Reckitt to take active steps to halt the march of SC Johnson's product challenge in the United States is exemplified by the following internal communications which passed between certain Reckitt officers commencing from March of this year, and hence less than three months prior to commencement of the subject proceeding on 26 July 2004, reproduced literally as follows (the sender of the first communication presumably being in Australia and the receiver in the US): (i) 'From: Vousden, Peter Sent: Thursday, March 04, 2004 11:27PM To: Rubino, Joseph Cc: Boesenberg, Diane; Rix, Allan Subject: SCJ Air Sanitiser launch in ANZ. Joe Hope you can help with this one from your experience with this product in the US. SCJ are launching an air sanitiser product - I suspect the Oust formula ex US. We are planning a defence and I would like your input into the technical performance and claim substantiation SCJ might have done. We are also second guessing whether SCJ might be able to make disinfection claims to meet Australian TGA requirements. - I understand we challenged SCJ on their "kills germs in the air" claim. Did SCJ provide any claim substantiation data or testing protocol? I am aware of the EPA guideline for air sanitisers and the use of glycols. Do you need to generate claim data if you use glycols? - would triethylene glycol be an effective surface disinfectant? Have you conducted any AOAC GST tests? - what is the mode of action for TEG? - have you developed any testing protocols to substantiate kills, removes, reduces… germs in the air? - would an alcohol formula eg Glen 20 likely to be effective to kill germs in the air? We have actually just started to promote Glen 20 as "kills the germs that cause bad odours and leaves a fresh fragrance in the air". IN your opinion would this approach meet an "air sanitiser" claim? Sorry for all the questions. The business here is quite concerned ad want to be as prepared as possible for a defence. If you have any other info that might be relevant please forward. Best regards Peter' (ii) 'From: Rubino, Joseph Sent: Saturday, 6 March 2004 8:22 AM To: Vousden, Peter Cc: Boesenberg, Diane; Rix, Alan; Price, Kate; Al-Atrash, Jenan Subject: RE: SCJ Air Sanitiser launch in ANZ. Peter - Below are my answers to your questions: 1. EPA does not require efficacy data to be submitted for registration. The formula must contain at least 5% of a glycol, usually TEG. California does require data submission or some other justification. Could be from the literature or actual data. The product must show 50% air saturation, this is the data generally submitted and we believe this is what SCJ did, along with literature justification. 2. TEG alone will not disinfect. The US Oust product contain a high level of ethanol, this will likely provide surface disinfection but the product does not make this claim. A TEG formula will leave residues on surfaces. 3. I believe that TEG attaches to the bacteria and "pulls" them from the air. It may not actually kill the bacteria. 4. We have worked with the University of Ottawa in Canada. They have a method for testing bacterial removal/kill in the air. We did test Oust, did not achieve 99.9% kill but was over 95%. We also developed a method here in 1990 and tested a number of products (we no longer have the chamber to test in). It appears that the addition of TEG is important to get any removal or kill. We tested Lysol Spray and found it to be not effective at all. 5. Glen 20 will most likely do nothing in the air to bacterial (see above). Does the SCJ product have TGA approval? If so how did they get it (if you know)? We are currently selling a Neutra-Air product, by the makers of Lysol, that "neutralizes odors in the air caused by bacteria. We intend to eventually get this registered by EPA as an air sanitizer. JR' The references to 'SCJ' are of course to SC Johnson, to 'EPA' to the US Environmental Protection Authority, and to 'TGA' to the Therapeutic Goods Administration in the United States. The NeutraAir product of Reckitt will be later discussed in more detail below, as also what SC Johnson claims to be its immediate product competitor to NeutraAir, namely the Oust product of SC Johnson. (iii) Subsequently in an email dated 20 April 2004 from Mr Rubino to Vasu Chetty, he said: '[I] do not believe Glen 20 will kill or eliminate bacteria or viruses in the air. Several years ago we actually tested LDS as well as other similar formulation in the air for germ kill against bacteria. We found that none of these formulations, specifically those containing ethanol, quat, water, were even marginally effective. We did find that the addition of a glycol to the formulation did actually help in reducing bacteria in the air. Our conclusion is that glycols do have an affect.' Moreover in a later email to Mr Vousden of 6 May 2004, Mr Rubino said 'I suggest that you use NeutraAir formulation with similar claims'. (iv) In a later internal Reckitt document of 12 May 2004, headed 'Air Sanitisers', which recorded minutes from a teleconference between Joe Rubino, Yasu Chetty and Peter Vousden, there appears, under the subheading 'What are [Reckitt's] Options, [in relation to] Clean & Pure' the following: 'Launch the Triethylene Glycol formulation which can make the same claims as Clean & Pure , but which can be differentiated from Glen 20 because of the latter's surface activity.' Understandably SC Johnson placed considerable weight upon the contents of those internal Reckitt documents.

[7]

The judicial task involved in the presentation of the respective cases of the parties 22 Each of the parties is an Australian subsidiary of a substantial United States corporation, and has outlaid substantial resources in the preparation and presentation of its case. Although the hearing of the cross-examination of the affidavit deponents extended largely over four hearing days, much of the 'devil in the detail' remains within the complexity of the detailed evidence relating to scientific issues. 23 What complicates the judicial task of judgment writing is the extent of claims as to business secrecy which have been made in relation to the expert evidence. Those claims are frequently made in the context of litigation, such as the present, as a matter of course or perceived precaution. My familiarity by now with the large amount of material tendered in evidence leads me to the view that at least most of the material the subject of privilege claims has never been or else has ceased to be truly confidential. No affidavit evidence has been tendered specifically in support of any confidentiality claims. The factual material presented to the Court is already complex enough to incorporate into these reasons for judgment, and the further task of dividing these reasons into privileged and non-privileged segments would tend to be as burdensome as it could well be impractical. That observation is confirmed implicitly by the circumstance that neither the written nor the oral submissions of either litigant has been divided into privileged and non-privileged component parts, although a six page table identifying privileged material, thus still widely framed, was created upon my request. It has not been feasible for me to adopt thus far any course other than to provide single reasons for judgment, in order to complete the same as soon as my commitments have allowed. I therefore propose withhold from publishing these reasons for seven days. In the meantime, submissions in writing should be made as to why any particular segments should be excised from otherwise published reasons, if either party chooses to do so. Otherwise publication of these reasons will proceed without further notice.

[8]

The controversies created by contemporaneous events in the United States 24 The proceedings raise the controversy, at least obliquely, as to whether the product claims of one United States multi-national corporation, presently advanced in Australia by its Australian related company (being here of course the respondent SC Johnson), infringe Part V of the TP Act, in circumstances where those claims (or at least material aspects thereof) are asserted to have been allegedly recognised by the relevant authenticating authority in the United States, and where that United States corporation carries on relevantly the same business in the United States, as in Australia, being a business which competes with another multi-national corporation similarly based in the United States (being here of course Reckitt), and also conducted in Australia. 25 It is in that context that SC Johnson invokes relevance on the circumstance that its identical US air sanitiser product to Clean & Pure, marketed since about December 2002 in the United States as Oust, was approved by the United States Protection Agency ('EPA') in September 2001 for sale as an air sanitiser, and furthermore that SC Johnson's product claim, already made in the United States, that Oust 'kills odour-causing bacteria in the air', has been approved by the EPA. SC Johnson's US product Oust contains the active ingredient TEG earlier identified in these reasons, which from October 2003 has been the subject of claim as to possessing bacteria and odour eliminating properties. Prior to that time, the SC Johnson product was permitted by the EPA to use a 99.9% kill claim in respect of airborne bacteria. While this latter claim was apparently abandoned 'as a result of discussions with the EPA', nevertheless according to the understanding of SC Johnson's Group General Manager Mr Onsley (supra), the former (and presently adopted claim) was unsuccessfully challenged by a Reckitt related company in the United States. Nevertheless on 20 January 2004, EPA notified SC Johnson in the United States that Oust '… is considered to be an excluded good being of a type as defined under the Therapeutic Goods, (Excluded Goods) Order No 1 of 1998, Clause 3, Item (j) of the Schedule. 26 Notwithstanding the objection in principle to admissibility raised on behalf of Reckitt, I am of the opinion that the evidence relating to the respective marketing activities of identical or virtually identical products (albeit differently named) in the United States, undertaken respectively by the Reckitt and SC Johnson US corporate groups, cannot be gainsaid to bear relevantly upon the issues presently arising as to contraventions by SC Johnson of ss 52 and 53(c) of the TP Act in Australia. Any ruling made, or conclusion reached, by a body having the official standing and functions, such as the EPA, as to whether promotionally asserted product characteristics or capacities are permissibly open to be made, provides evidence which may be taken into account in the resolution of an issue to the existence or otherwise of alleged breaches of the TP Act, such as are asserted by Reckitt to have been committed by SC Johnson in Australia. 27 As in the case of SC Johnson's US marketed product Oust, Reckitt's US competing market product NeutraAir contains the critical component of TEG (as does of course the Australian product Clean & Pure) as well as ethanol, the latter serving the additional function of providing liquid for the spray function. It was strongly put by SC Johnson, in the course of cross-examination of Reckitt's marketing director, that Reckitt's recently launched Australian product AirWick Purity also contains TEG, just as in the case of Reckitt's new US product NeutraAir. Significantly perhaps, unlike the Clean & Pure can packaging, the AirWick Purity can packaging makes no disclosure of any active ingredient. For what it may matter, I thought that the denial of the marketing director, Mr Armstrong, that AirWick Purity did not contain TEG, or glycol, to be at least puzzling, particularly in the light of the Reckitt inter-company emails earlier extracted in these reasons, and the absence of any reference to an active ingredient on its can packaging. Hence possibly the reason why the only product comparative claim made by the Clean & Pure television advertising in evidence is made referrable to Glen 20, yet not also to AirWick Purity. In any event, SC Johnson argued strongly for the relevance of the internal US Reckitt memoranda, which I have earlier extracted, and in my opinion correctly so, since that material demonstrates a degree of inconsistency involved in Reckitt's pursuit of product claims relating to its US product NeutraAir, in furtherance of its competitive endeavours in the US directed against SC Johnson's US product Oust,with its pursuit of misleading and deceptive product claims in Australia directed against Clean & Pure. Moreover SC Johnson asserted relevance to the issues arising in the proceedings by reason of the circumstance that Reckitt's more recently introduced US product NeutraAir,being Reckitt's US counterpart to its Australian product AirWick Purity, and being Reckitt's US competitor to SC Johnson's recently introduced US product Oust, have essentially the same chemical components, including TEG, and thus similar performance characteristics of relevance to the issues arising in the subject proceedings. The evidence of Reckitt's Australian marketing director was that the NeutraAir claim in the United States would undergo change from neutralise to kill, once EPA approval in that regard was obtained, being kill used '[i]n a similar way as the Oust product will claim'. In my opinion, SC Johnson's assertions as to the admissibility of those matters above identified to the issues arising in the present proceedings should be sustained. I am unable to see why a stance taken by a multi-national in relation to its product out of Australia cannot be evidence in principle in a dispute involving that product occurring in Australia. International trade in modern times means in practical terms that products have few borders. 28 Most of the debate in the present proceedings has related to the appearance on certain of the respective product packaging of the parties of the words eliminate or kill or neutralise, and the use by SC Johnson in particular of the words kill and eliminates twice in its television advertising of Clean & Pure, and the word eliminates (or eliminate) three times on its packaging, especially of course within the critical expression eliminates odour causing bacteria in the air. I observe that SC Johnson also uses the words helps reduce and temporarily reduce on its product packaging of Clean & Pure. Reckittuses however on its Glen 20 packaging the words kills six times, killing once, eliminates four times and anti-bacterial once, though or course in differing contexts, and in addition the word anti-bacterial on the same product packaging. Reckitt's AirWick Purity uses the word neutralises twice (including neutralised), and attacks once, on its product packaging. The context of those various words has of course been earlier extracted in these reasons. I find it difficult to accept that at least the average consumer would be likely to attribute any distinction of significance between words, for what that might ultimately matter. 29 It is instructive in any event in the present context to provide below, from the current Macquarie Dictionary and Oxford Dictionary,the respective meanings of eliminate, kills and neutralises, particularly given the pre-eminent significance which Reckitt seeks to assign to SC Johnson's use of the word eliminates: Eliminate: Macquarie Dictionary: 'to get rid of; expel; remove.' Oxford Dictionary: 'remove, get rid of, abolish, put an end to, do away with, banish; end, stop, terminate, eradicate, destroy, annihilate, stamp out, obliterate, wipe out, extinguish, quash, finish off.' Kill: Macquarie Dictionary: '1. to deprive (any living creature or thing) of life in any manner; cause of death of; slay. 2. to destroy, to do away with; extinguish. 3. to destroy or neutralise the active qualities of.' Oxford Dictionary: 'murder, cause the death of, take/end the life of, do away with, make away with, assassinate, do to death, eliminate, terminate, dispatch, finish off, put to death, execute.' Neutralise: Macquarie Dictionary: '1. to make neutral, 2. to render ineffective; counteract…. 5. Chemistry to render inert the particular properties of.' Oxford Dictionary: 'counteract, off-set, counterbalance, balance (out), counterpoise, countervail, compensate for, make up for; cancel out, make/render ineffective, nullify, negate, annul, undo, invalidate, be an antidote to, wipe out; equalise, even up, square up.'

[9]

Outline of steps undertaken by SC Johnson for the launch of Clean & Pure in Australia 30 One initial step taken in Australia, prior to the market launch of Clean & Pure, involved SC Johnson's commission of market research by Blue Moon Research & Planning Pty Ltd, which reported in December 2003 that members of the consumer public considered Clean & Pure to be a 'real innovation' in the air freshener category, because of their understanding that its action involved the elimination of odour causing bacteria in the air, and was therefore not a conventional odour removal spray product. The latter description presumably accredited Glen 20. Also in December 2003, Dr Wynn-Hatton was engaged by SC Johnson to establish whether the following proposed product claims for Clean & Pure could be made, without the registration in Australia of Clean & Pure as a therapeutic Goods Administration in Australia: '• air fresheners only mask odours, they do not remove bacteria from the air; • Glen 20 kills bacteria on surfaces but cannot remove them from the air; • we do not want to disinfect surfaces we want to improve air quality more effectively than air fresheners; and • we are offering a product that produces the aesthetic benefits of an air freshener with the extra benefit of removing bacteria that cause odours from the air.' 31 Dr Wynn-Hatton gave expert evidence in the proceedings on behalf of SC Johnson. He is currently a member of the Royal Australian Chemical Institute and the Australian Society of Cosmetic Chemists, having obtained his doctorate from the University of Sydney in 1992 in Chemistry. He was employed as a senior development chemist, and later as a product development manager, with what was then Reckitt & Colman, from the time of his graduation in 1992 until 1999, and he presently conducts a consulting practice in Sydney, one of his consultancies now being SC Johnson; he was involved in the product launch of Clean & Pure. 32 In April 2004, SC Johnson commissioned an Australian market research agency, designated as TNS, to evaluate two proposed scrips for a television commercial heralding the launch of Clean & Pure in Australia. SC Johnson instructed TNS that the object of the advertising was to create a new product segment, by virtue of the operation of the expression air sanitisers, and to promote the message that its product was able to achieve air sanitisation, because of its active ingredient TEG. TNS was also instructed that the further objective of the advertising was to '[d]rive brand awareness of Glade Clean & Pure as the new way to treat bad odours - by actually eliminating the bacteria that causes odours, not just masking them', and moreover that the key benefit to be communicated by the advertising should be that Clean & Pure is '[u]nlike air fresheners which only mask odours… revolutionary new Glade Clean & Pure is the only one that cleans and sanitises the air by eliminating odour causing bacteria (because it contains TEG)'. 33 TNS provided a report of 79 pages to SC Johnson in May 2004, comprising briefly framed observations appearing in large print couched in traditional advertising agency format. The advertising objectives of the report were stated as follows: 'Glade Clean and Pure is positioned as a new product that is to stand alone in a new segment of the air freshener market as an "Air Sanitiser". The advertising objective is to educate and drive brand awareness of Glade Clean and Pure as the new way to treat odours by eliminating the bacteria that causes odour.' 34 Moreover in reporting upon the advertising strategy of SC Johnson in terms of so-called 'Nett Comparison with Glen 20/Other Products', TNS recorded the tentative comparative claim that 'Glen 20 doesn't kill bacteria'; in an earlier memorandum of April 2004, TNS had also recorded the following, as part of its so-called Research Brief: 'New Glade Clean & Pure is the first spray that truly cleans & sanitises the air, leaving your home fresh & clean. Because: 1. Unlike Glen 20 which only eliminates surface bacteria, revolutionary new Glade Clean & Pure is the only one that cleans & sanitizes (sic) the air by eliminating odour causing bacteria (because it contains TEG). 2. Unlike air fresheners which only mask odours, revolutionary new Glade Clean & Pure is the only spray that cleans and sanitizes (sic) the air by eliminating odour causing bacteria (because it contains TEG).' 35 It is open to be inferred that comparisons of the foregoing kind between Clean & Pure and Glen 20 ultimately led the SC Johnson US parent corporation to 'sign off' in July 2004 in relation to its so-called 'Major Expenditure Authorisation', the same containing (inter alia) the following, under the heading 'Project Background': '… [this] is a global project initiated to create a new segment within Aircare. The opportunity to create a new segment has arisen due to a new technology - TEG - that enables Air Sanitisation. [Ours]… are the first products of their kind globally to be able to achieve air sanitisation (ie eliminates odour causing bacteria in the air) consequently they have become the lead NPD roll-out initiative across the globe. This project has been launched in the US under the Oust brand and has achieved a phenomenal success, growing the instant Action segment by 25%+ within the first 12 months of launch.' The Clean & Pure spray can, and the cardboard attachment to the mini-aerosol Clean & Pure can, each disclose TEG as the active ingredient of Clean & Pure, though in very small sized print. The product claims of Reckitt's Glen 20 and AirWick Purity are not of course the same, although the product claim appearing on the AirWick Purity can neutralises odours caused by germs, though different, could not be described as largely distinguishable from the Clean & Pure product claim eliminates odour causing bacteria in the air. Glen 20 stands apart from Clean & Pure, whichdoes not contain TEG, and describes itself by its packaging as a surface spray disinfectant which is anti-bacterial, though it nevertheless makes the claim kills germs at the press of a button. As elsewhere indicated in these reasons, there is controversy as to whether AirWick Purity itself contains TEG, in contrast to Glen 20, SC Johnson contending that an inference is open to be drawn to that effect. 36 Reckitt submitted that the SC Johnson television commercials, earlier detailed in these reasons, are 'the central plank in [SC Johnson's] market strategy', all other promotional activities authorised by SC Johnson being submitted by Reckitt to be '… secondary to it and… embarked on in conjunction with and at the same time as it'. Reckitt described the word eliminates, where used in SC Johnson's television advertising, and of course also appearing on the Clean & Pure spray can, and on the product packaging for its mini-can, as 'an absolute term', and not merely a term 'apt to describe a process whereby the presence of some material or non-material object is reduced or inhibited'. It is a word, so the Reckitt submission continued, to be distinguished from such words merely connoting removed, or disinfects. Rather eliminates was said by Reckitt to 'absolutely connote the disposition of bacteria in the air, rather than reducing their number', being bacteria 'in the air in the room at the time of use'. Interpolating at this point, the latter Reckitt submission is to my mind an overstatement, and would not be likely to be so broadly interpreted, any more in scope of area of operation than the Glen 20 and AirWick Purity product claims it kills germs at the press of a button and neutralises odours caused by germs respectively. Any consumer would normally adopt a mental qualification at least to the effect that much would depend on the size of the room and the extent in any event of spraying. It was further submitted by Reckitt, implicitly in the alternative, that 'equally, when the television advertisements and product packaging [of SC Johnson] say that Glade Clean & Pure eliminates odours, they would be understood by the relevant consumer as claiming that the product completely gets rid of malodours of concern…', being '… the smells present and triggering the use of the product'. The latter expression completely gets rid of is virtually as absolute and in my opinion as unrealistic and overstated as the first mentioned alternative. 37 Aerosol technology was described by Dr Bowman, the Head of Analytical Services, Research and Development of Reckitt, as a 'mature science', aerosols having been first developed during the 1940s. He testified that the formulation of the mixture contained within Clean & Pure has four components, as follows: (i) a mixture of complex compounds which imparts the products' fragrance; (ii) a highly volatile gas which must be included in any aerosol product to cause the other ingredients to emerge upon activation from the aerosol as a spray of droplets; (iii) ethanol, being the solvent in which TEG is dissolved and which occupies approximately 70% of the total product mix by weight ; when the product is activated, the droplets which emerge are a mixture of TEG, ethanol and the fragrance; and (iv) TEG, comprising 6% of the total product mixed by weight. That description is not controversial.

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The judicial precedents cited by the parties 38 Because of the nature of, as well as context to, the misleading and deceptive claims framed by Reckitt, and SC Johnson's responses, it is appropriate to reproduce below, at this early stage of my reasons for judgment, the carefully framed digest of potentially relevant Australian judicial precedent undertaken by the parties as to the principles of operation of ss 52 and 53 of the TP Act, particularly upon product competitive advertising: (i) in identifying what may constitute relevant conduct, the packaging and advertising of the product must be viewed as a whole, rather than by endeavouring to ascertain in isolation the meaning of the critical words: Sterling Winthrop Pty Ltd v R & C Products Pty Ltd (1994) ATPR 41-308 at 42,126 (Lockhart J); Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515 at 523 (Merkel J); and Bristol-Myers Squib Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd (1999) 45 IPR 144 at 164 (Weinberg J); (ii) it is the first impression conveyed by the packaging or other advertising which creates the impact on a reader or viewer, rather than an analysis of the constituent parts of the advertised message: Sterling Winthrop at 42,126 (also 42,133 per Sheppard and Burchett JJ); Telstra at 523; and Bristol-Myers at 16; (iii) the whole of the message the subject of a controversial promotion etc should be considered in context; thus where a false dominant impression is conveyed, its message will not be ameliorated by the accuracy which may be derived from a careful analysis of all the constituent parts of the whole; most readers or viewers would not make a close study for instance of the subject packaging or television advertisement, but would absorb the general thrust thereof: Stirling Winthrop at 42,126 and 42,133; Telstra at 523; Bristol-Myers at 164; and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 4 (Sheppard J); (iv) particular care must be taken by a person who engages in comparative advertising to ensure the comparison made is correct; thus in Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161 at 163, Lockhart J said: 'When a person produces a television commercial that not only boosts his own product but, as in this case, compares it critically with the product of another so that the other is shown up in an unfavourable light by the comparison, in my view he ought to take particular care to ensure that the statements are correct.' (I should repeat at this point of initial reference to authoritative dictum on comparative advertising that the context of SC Johnson's engagement in that practice is confined to the televising advertising.) (v) moreover any inaccuracy, half-truth, ambiguity or omission, made in the context of comparative advertising, may have greater potential to mislead consumers than in other spheres of advertising: Bristol-Myers at 165; Telstra at 524-5; Sterling Winthrop Pty Ltd v Boots Co (Aust) Pty Ltd (1995) 32 IPR 361 at 364-5 (Tamberlin J); Hoover (Aust) Pty Ltd v Email Ltd (1991) 104 ALR 369 at 375 (Gummow J); and Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299 (Burchett J); (vi) that is not to postulate that there are different legal principles to be applied in respect of comparative advertising; the preceding statements of principle in relation to comparative advertising merely recognise the fact that inaccurate or unfair comparisons are inherently likely to mislead consumers: Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 56 IPR 1 (Heerey, Lindgren and Merkel JJ); (vii) intention may be relevant to, albeit not a requirement for, establishing contravention of ss 52 and 53 of the TP Act; where however a person engaging in advertising or promotion intends to convey a particular impression so as to influence consumers in a particular way, the Court may more readily infer that the attempt has succeeded, and that consumers were so influenced; see in relation to passing-off type claims in particular made pursuant of Part V of the Act: Twentieth Century Fox Film Corporation v The South Australian Brewery Co Ltd (1996) 66 FCR 451 at 464E and 466F-G (Tamberlin J); and Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 at 511 [63]; (viii) although Reckitt, as applicant for relief, bears the onus generally of establishing that a contraventions of ss 52 and 53(c) have occurred, where the packaging or advertising in question makes claims of a scientific nature, proof that there is no scientific foundation for those claims may sufficiently establish that the claims are misleading; in the present context, thus Reckitt submitted, the claims made by SC Johnson should be taken to imply that there is an inadequate foundation in scientific knowledge to enable them to be made: Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1986) ATPR 40-654 at 47,292 (Burchett J); and (ix) the fact that a claim made explicitly or implicitly that one product will outperform another product, without there being any tests available to demonstrate the truth of any such claim, may itself amount to misleading and deceptive conduct in appropriate circumstances: Makita (Aust) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) 18 IPR 2870 at 279 (Wilcox J). 39 Moreover as to the identity of those members of the public at large to whom the Clean & Pure spray can and packaging are directed, and to whom the television advertisements are also directed, I was referred by both parties to aspects of the following dicta of all seven members of the High Court in Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 at 85-87, as follows: 'Although a class of customers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics… Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus to be made with respect to this hypothetical individual why the misconception complained of has arisen or is likely to arise if no injunctive relief be granted… [i]n an assessment of the reactions or likely reactions of the "ordinary" or "reasonable" members of the class of prospective purchasers of a mass-marketed product for general use… the court may well decline to regard as controlling the application of s 52 those assumptions by persons whose reactions are extreme or fanciful… The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers.' 40 I was also referred by Reckitt to Annad & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 (Franki, Northrop and Fisher JJ) at 176, where Franki J described the need to test an issue of contravention from the point of view of a hypothetical member of the identified class of women who had seen the television advertisement or the packaging, being women who were 'ordinary or reasonable', or put another way, 'not particularly intelligent or well informed, but of somewhat less than average intelligence and background', although not 'unusually stupid'. 41 As to additional reference to authority made specifically on behalf of SC Johnson, a number of further observations of judges of this Court were cited, which are set out below: (i) Stuart Alexander where Lockhart J said at 164-165 in relation inter alia to the notion of puffing in advertising: 'However, I think a robust approach is called for when determining whether television commercials of this kind are false, misleading or deceptive. The public is accustomed to the puffing of products in advertising. Although the class of persons likely to see this commercial is wide, it is inappropriate to make distinctions that are too fine and precise.' (ii) Lumley Life Ltd v Independent Order of Odd Fellows of Victoria Friendly Society (1989) 16 IPR 316, where at 323-324, Lockhart J said in relation to remoteness of risk as to infringement: 'There is a possibility, and some of the evidence lends support to it, that there might in the minds of some people be temporary and commercially irrelevant confusion, but nothing that constitutes misleading or deceptive conduct… Section 52 is not concerned with conduct where the risk of infringement is remote.' (iii) further to comparative advertising, after referring to a number of authorities, including several of those which I have already cited, Lindgren J, as one of the members of a Full Court in Gillette, observed as follows (at 13): 'The judicial dicta referred to signify that a comparative, as distinct from a "unilateral", promotion of a product necessarily indicates that the advertisement is not mere advertising puff, but involves representations of fact which are either true or false. They also suggest an obvious practical consideration: since the manufacturer, distributor or seller of the compared product will be closely familiar with it and will have a financial interest in stopping the advertising, it can be expected that the advertisement will be construed by that competitor "minutely and finely with an eye keenly attuned to the perception of error".' Earlier in Gillette at 6, Heerey J, as a member of the same Full Court, observed as follows: '… to the extent that comparative advertising provides consumers with accurate hard facts about competing products, it assists in the making of better informed consumer choices and thereby results in more effective competition. Of course, the more actual comparisons that are used, the more potential there is for error (and half-truth). So advertisers have to be careful.' 42 Comparative advertising was conceded by SC Johnson nevertheless not to impose any higher burden on the advertiser to show the accuracy of the comparison than the normal burden of proof in civil litigation, SC Johnson referring in that regard to Trade Practices Commission v Telstra Corporation Limited (1993) ATPR 41-256; after identifying a number of earlier authorities, Hill J said in that case at 41-454: 'The point being made is that errors in comparative advertising may have a greater potential to mislead consumers than statements made in ordinary advertising which may be perceived as mere "puffs". It is unnecessary to elevate what is said in those cases into a principle of law. Whether conduct is misleading or deceptive must depend upon all the facts and those facts include, in the case of advertising, the entire context in which the advertising appears.' 43 The decision of Lockhart J in Colgate Palmolive Pty Ltd v Rexona Pty Ltd (1981-1982) 58 FLR 391, in the context of an application for an interlocutory judgment, involved circumstances not dissimilar to the present, where one long established multi-national company operating in Australia sought interlocutory relief against another long established multi-national company also operating in Australia, and where the context was the retail sale of an everyday household product, in that case toothpaste recently introduced to the market as a new scientific innovation. Dicta of relevance are reproduced below: 'It is the plain purpose of the Act to require truthful conduct in the market-place and that competition be free and fair. In this case, claims are made by Rexona which consumers themselves cannot verify. They rely on the technical expertise of Rexona to assure the validity of the claims… (404). The relevance of public health or safety, although always an important consideration, admits of degrees of importance. Some claims may go to matters of life and death whilst others may be at the other end of the scale. Claims like those in the present case, relating to dental health, lie somewhere in between… (405). The Act is concerned with the maintenance of free and healthy competition. If a corporation is engaging in misleading or deceptive advertising which assists it in gaining a substantial share of a market at the expense of small manufacturers, the interests of those manufacturers must be a relevant consideration when considering the balance of convenience... (further at 405).' 44 However the products here the subject of the evidence are each of course a household cleaning tool, and not readily comparable to the cleaning tools used in the clinically supervised conditions of a hospital. Nor do they involve matters of personal hygiene, at any rate closely comparable with toothpaste. 45 Subsequently in Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460 at 475, Lockhart J (as a member of a unanimous Full Court) said as follows, in relation to the operation of s 52, albeit in a context where a long established firm of stockbrokers had obtained at first instance (and subsequently did hold in any event on appeal) an injunction to restrain a corporation from engagement in stockbroking under a corporate name bearing a similarity to the long established firm name of stockbrokers still engaged in business: 'Section 52 speaks of conduct of a corporation which is misleading or deceptive. In one sense the word "misleading" involves the notion of deceit or craft, but generally today it does not. But the primary meaning of the word "deceptive" is cheating, ensnaring or deliberately misleading. It seems to me that this is, at the very least, one meaning that the word should bear in s 52 especially as the section is designed to protect the public from improper or unfair trading practices. Also, the two words are linked by the disjunctive "or". The legislature must have intended each word to perform work independently of the other, notwithstanding some measure of possible overlap. I recognise that it is now established that the intent of the corporation is not an essential element in the notion of misleading or deceptive conduct; but in my opinion there are cases where there will be deceptive conduct only where the intention of the corporation is established.' That passage was referred to by a Full Court (Lockhart, Pincus and Von Doussa JJ) in Murray Goulburn Co-Operation Co Ltd v New South Wales Dairy Corporation (1990) 92 ALR 239 at 257, where the following appears from the joint judgment of the Full Court: 'However, his Honour went on to say that there may nevertheless be circumstances in which conduct by a corporation which causes confusion or uncertainty in the minds of the public may amount to a contravention of s 52. He instanced a corporation which deliberately set out to increase its sales and market share at the expense of an established product by marketing goods in a way that was likely to cause confusion or uncertainty in the minds of potential purchasers.' 46 Reckitt's complaint in summary, as to alleged ss 52 and 53 contraventions, is that SC Johnson's Clean & Pure product is being held out to be an air sanitiser, being the description appearing on the tubular can or container immediately below the prominent signage of Clean & Pure, and that further below the description air sanitiser, there appears on Clean & Pure's spray can, albeit with lesser prominence, the critical claim eliminates odour causing bacteria in the air. That claim comprises the principal focus of Reckitt's case, Reckitt asserting the existence of an objective on SC Johnson's part of marketing Clean & Pure in order to gain sales, particularly at the expense of Glen 20. Thus a key benefit chosen by SC Johnson, in furtherance of that objective, is said by Reckitt to be to distinguish its product as having a superior household function to Glen 20. Reckitt sought to invoke, one way or another, at least most of the authoritative dicta, which I have cited above, as presently applicable in its favour.

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The scientific evidence as to the elimination of bacteria - the areas of debate 47 Each party adduced expert microbiological evidence in the proceedings, in the case of Reckitt, principally from Dr Neilan, an Australian microbiologist and an associate professor in the School of Bio-technology and Bio-molecular Sciences at the University of New South Wales, and in the case of SC Johnson, principally from Dr Priscott, a professional consultant and provider of research, development and routine analytical microbiological services in Australia and principally also from Dr Stetzenbach of the United States, an environmental microbiologist. Each expert has impressive academic qualification as well as professional experience. That expert evidence, extensive as it was, nevertheless did not of course comprise the entirety of the expert scientific or expert evidence respectively tendered by the parties in the proceedings. 48 Each of those three principal experts was extensively cross-examined on his or her affidavit. I shall later seek to summarise their various theses and conclusions, and thereafter determine whether Reckitt has established, according to the requisite standard of proof, the case which it propounds for contravention of ss 52 and 53(c) of the TP Act. 49 The propositions of science upon which SC Johnson relies, and with which Reckitt's experts largely appeared to agree, may be summarised as follows: (i) a typical household environment contains bacteria both on surfaces and in the air; (ii) bacteria cause odour when they metabolise; (iii) metabolic activity can occur on surfaces and can continue into the air; (iv) airborne bacteria can settle on surfaces; (v) the amount of airborne bacteria in a household varies from room to room at any given point in time, depending on the conditions in the household and in the particular room (to the proposition I would add 'including the size of the room); (v) airborne bacteria in a household may occur from various sources, including: • when transported indoors through natural ventilation (for example open doors and windows), mechanical systems (for example air conditioning) and infiltration (for example cracks and other openings in the building envelope); • when dirty clothes have been shaken out, or a dog sleeps or has shaken or scratched itself; and • when surface associated bacteria become airborne as a result of physical disturbance (including routine household activity such as walking, cleaning and food preparation), water splash and air currents; (vi) airborne bacteria cause odour in two ways, first by metabolising when airborne, which in turn causes odour, and secondly, after settling on surfaces by way of further metabolising to emit odour; and (vii) Clean & Pure contains the active ingredient TEG (6% w/w), to which reference has already been made, and which is a known bactericide which acts to eliminate bacteria in the air so that the bacteria cannot metabolise further. Nevertheless it may be also borne in mind that bacteria will normally die in the air in any event, albeit not necessarily at once, because of lack of nutrients in the air needed to keep the bacteria alive. 50 In summary the case of SC Johnson was that Clean & Pure does in truth eliminate bacteria in the air, and does so in two ways, first by solubilising the odour causing chemicals, and secondly, by interacting on the molecular level, neither of which Glen 20 achieves, essentially because it lacks TEG. SC Johnson emphasised those features did not mean, nor were held out to mean, that Glen 20 did not eliminate bacteria on surfaces, but rather that the two products performed different functions, being at least a proposition which Reckitt's marketing director seemingly accepted during cross-examination. 51 Those propositions of science emanated principally from Drs Priscott and Stetzenbach. Moreover Dr Neilan appeared to accept, under cross-examination, the following propositions: (i) airborne bacteria in certain instances may be capable of generating odour; (ii) irrespective of whether or not airborne bacteria generates odour whilst in the air, once that bacteria lands on the surface with sufficient nutrients and water to enable it to metabolise, it will then generate odour, if it continues to grow on the surface; and (iii) if airborne bacteria is killed in the air, it will never have the opportunity of growing on the surface and offending people's sense of smell. 52 The thesis that TEG is a known bactericide, which acts to eliminate bacteria in the air so that the bacteria cannot metabolise further, was duly acclaimed by Dr Wynn-Hatton. TEG was described by Dr Wynn-Hatton as a colourless, odourless, non-volatile and hygroscopic liquid, the description hygroscopic meaning that it absorbs water from moist air easily, which is its major application. Dr Wynn-Hatton stated that TEG has been investigated as a means to treat and remove odours and pollutants in industrial situations, and expressed the opinion that its odour removing properties had been 'clearly demonstrated' by a two year study conducted from 1990 to 1992 by the Gas Research Institute in the United States. His affidavit evidence continued as follows: 'TEG was proven to provide excellent removal of representative indoor pollutants and odours from the atmosphere. TEG is also well known to solubilize a wide variety of odorous chemicals such as amines, aromatic compounds and other volatile and non-volatile organic chemicals.' 53 Moreover Dr Wynn-Hatton's primary affidavit advanced the following further explanations and propositions: (i) scientific literature on TEG, which he identified, tracing back as it did to World War II, demonstrates that TEG is viewed by the scientific community as an important disease control option, and in particular, TEG results in significant reduction in total bacteria air contamination; (ii) vaporised TEG was found to have an immediate germicidal activity on a wide variety of micro-organisms, and requires only a few seconds during which to condense; to cite his further precise description, '… the bacteria is permanently destroyed by the action of TEG and cannot metabolise any further'; and (iii) TEG operates in two ways to eliminate actual odours from the air; as the product is sprayed, a fine mist of TEG droplets is dispersed; as they disperse, these droplets begin to solubilize the odour causing the chemical, which is a gas; the droplets then condense with one another, or with small odorous particles in the air, to form larger droplets which then 'rain out', removing the odours from the air; in his view, 'TEG can interact on the molecular level with the odour causing chemical, changing its nature completely'. 54 In that context, Dr Wynn-Hatton described the results of 'in-house' testing on the Clean & Pure formula, which confirmed to his mind the efficacy of the formula in removing odours from the air. In one internal study which he identified, what he described as the fragranced aerosol version of Glade was 'shown to be effective in reducing the strength of pet, bathroom, smoke and musty/mildew odours'. In a further internal study which he identified, that result was said to show that 'the unscented product was effective at decreasing the strength of pet, bathroom and smoke malodours'. Yet a further study was said by him to have established that the concentration of malodour compounds is reduced in the presence of TEG, and that there was a scientific confirmation of the molecular interaction of TEG with odours. 55 A large number of documents, including confidential documents, were exhibited to Dr Wynn-Hatton's affidavit, to some of which objection was taken by Reckitt. It is not judicially feasible for the Court to endeavour to wade through extensive scientific treatises of the nature which Dr Wynn-Hatton purportedly relied upon, in order to determine admissibility, much less its viability. The judicial tests for establishing contravention or otherwise of ss 52 and 53(c) of the TP Act, which have earlier exemplified, do not of course demand any requirement for the Court to be persuaded beyond reasonable doubt, nor to assume the mantle of a scientific mediator, by itself entering upon any scientific resolution of conflicting scientific views of experts in a given field. The Court is dependent on the testimony of qualified experts to evaluate and report upon scientific issues, and the only feasible course in the event of disagreement between those experts, is to determine whether on the balance of the probabilities, and in the light of the evidence placed before the Court, one conflicting scientific view, or more than one view, is or are (as the case may be) reasonably and authentically open to be drawn in preference to the other or others. 56 I have treated the scientific writings exhibited to Dr Wynn-Hatton's affidavit as appropriate evidentiary material open to me to take into account in supporting his theses upon the technical or scientific issues raised in the proceedings. The ultimate weight to be given thereto, where the same may conflict with other expert evidence, is another matter. It follows that the scientific material in particular the subject of confidential exhibit PMW3 is formally acknowledged as evidence in the proceedings. Moreover I would adopt that course in relation to all of the scientific writings sought to be placed before me by the various expert witnesses. There is no suggestion of course that any such material is not authentic. Therefore although I have doubt as to whether the claims of either party to confidentiality of their documentary material are truly sound, there is no other pragmatic course open to me other than to formally accept the assertions of confidentiality by either party, but nevertheless to maintain my earlier stance to publish these reasons for judgment after seven days, unless persuaded in the meantime to any particular citation from truly confidential material.

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The testimony of Reckitt's principal expert witness Dr Neilan 57 A convenient starting point for consideration of Reckitt's submissions, as to the scientific evidence for the elimination of odour causing bacteria in the air, is the proposition that bacteria exists naturally in a household, both on surfaces and in liquids, but that the earth's atmosphere on the other hand does not contain the essential ingredients that support bacterial metabolism and life. Advocacy upon that proposition was provided by Reckitt's primary expert witness Dr Neilan, whose affidavit evidence framed differences of the views held by the experts in the following way: 'Stetzenbach… and Priscott are contradictory with regards (sic) to the opinions they express that bacteria naturally occur in the air. I agree with Priscott that bacteria are not normal inhabitants of air. Indeed, air is not the natural habit (sic) of any micro-organism… being a relatively homogeneous medium, air would contain numerous, but similar, micro-organisms all over the world if it could sustain microbiological life. Hence all of the world's air would potentially smell like these organisms if they also produced an odour. The fact is that air is lacking the essential nutrients that support bacterial metabolism and life… Further, bacteria in the air are there in transition and are quickly deposited on a surface upon settling. Most bacteria in this transitionary phase either die or are in a state of suspended animation and reduced metabolism due to the lack of nutrients which are required for normal growth… By reduced metabolism, I mean the residual element of a metabolic process could occur on nutrient material stored within the cell within a short period of time after the bacterium is detached from the surface. However, in general, many bacteria after leaving a surface generally shut down.' Dr Neilan's reference to reduced metabolism assists to distil the area the subject of the scientific discourse. It would seem that the differing expert views boil down to an evaluation of the extent of significance of their respective theses. 58 Dr Neilan thereafter asserted in his affidavit evidence that Dr Stetzenbach and Dr Priscott, in their respective theses, failed to distinguish effectively between aerobic and anaerobic bacteria, there being three different types of bacteria, based on their respective oxygen requirements, having the following characteristics and implications: (i) strict aerobic bacteria, which grow only in the presence of oxygen, and include only a few bacteria; (ii) strict anaerobic bacteria, which lack the ability to grow in the presence of oxygen; he added that 'even the smallest amounts of oxygen are toxic'; and (iii) facultative anaerobic bacteria, which grow in the presence or absence of oxygen, but better in its presence , and include many bacteria organism; Dr Neilan explained in this particular context that odours associated with bad smells are produced exclusively by the fermentative metabolism of strict anaerobic bacteria, and that strict anaerobic bacteria may survive in the air for a short time and, after settling, recolonise new surfaces. His view was that this particular type of bacteria rarely produce volatile compounds which are odorous, the main exception being the strict aerobic bacteria; that is responsible for an earthy smell in soil, and the main product of the metabolism of strict aerobic bacteria is carbon dioxide. Dr Neilan further explained that the bacteria, being not strictly anaerobic, are termed facultative anaerobes, which grow in oxygen or in its absence, and may grow in air, given high levels of nutrients, and 100% humidity; they produce a range of volatile compounds similar to the strict anaerobes where they grow in the absence of oxygen, although the odours they produce are generally less offensive than those produced by strict anaerobic bacteria. 59 I have earlier referred to the uncontroversial evidence provided by Dr Bowman as to aerosol sprays generally, given of course on behalf of Reckitt. In later evidence, which will be the subject of further discussion below, Dr Bowman described an analysis he made of the Clean & Pure product in order to determine 'the contents of the product'. It was a detailed analysis, his affidavit report extending to eleven pages, the conclusion whereof being expressed as follows: 'The combined effect of all of these factors in that an aerosol spray containing an active ingredient such as TEG, which is intended to eliminate odour causing agents in the air, is unlikely to have a significant effect in eliminating or reducing the concentration of such agents in ordinary conditions. In my opinion, this means that the Glade Clean & Pure product (in either the large aerosol container or the small Concentrated Mist Refill container) is highly unlikely to have any significant effect in eliminating or reducing odour causing agents in the air.' 60 Moving further in the theses of his affidavit evidence, Dr Neilan next addressed the subject of secondary metabolism occurring in bacteria, which he acknowledged to have the capacity to produce odiforous compounds, late in the life cycle of aerobic bacteria to be found in soil and water, though not in indoor surfaces or in the air. The implications of that was said by Dr Neilan to be that aerobic bacteria, resuspended in the air, may transitionally releases these odiforous compounds, such as might occur when an anaerobic bacteria is taken from 'a no oxygen' environment into the air. However he disagreed with Dr Stetzenbach that all bacteria produce odours, asserting that 'odour-producing bacteria do not smell all the time'. 61 Dr Neilan accepted that it could be logically argued, as did Dr Stetzenbach, that an effectively used air sanitiser would reduce the number of target micro-organisms in the air, but that TEG does not kill bacteria on dust, citing thereby a particular 1943 academic thesis; he referred also to the statement emanating from a 1998 academic thesis to the effect that 'volatile compounds from microbial metabolism are low in the indoor environment and contribute only a few percent of the total odiforous compounds in the air'. 62 Upon the scientific grounds cited in support of his observations and processes of reasoning, Dr Neilan concluded that he disagreed with '… the general conclusions of Priscott and Stetzenbach… because airborne bacterial metabolism does not meaningfully contribute to household odours'. The conclusion of his affidavit evidence was that '… bacteria are not typically found in the air and do not grow and metabolise optimally in this environment. Any metabolism that does occur will only result in the production of carbon dioxide which has no smell. Airborne bacteria contribute nothing perceptible to the smell of a room while airborne, and almost nothing to the smell of a room to the extent that they survive the period while they are airborne and recolonise a surface.' His evidence in chief also concluded that '[t]he surfaces and objects in a room contain and support as microbial biofilms the bacteria whose metabolism is the cause of the odours'.

[13]

The responses of SC Johnson's expert Dr Priscott to Dr Neilan's testimony 63 The affidavit testimony of Dr Neilan falls to be compared with the evidence in chief, first of Dr Priscott, who conducts professional consulting services in microbiology and related areas, and provides research, development and routine analytical microbiology services. His views on the issues arising between the parties were expressed as follows: (i) the natural habitats for bacteria are the surface or matrix of a material, or in a liquid; bacteria are present in the air in circumstances where they have been dislodged from their normal habitat by some means, bacteria having no natural habitat 'which is air'; (ii) odours are generated by bacteria using various food sources for metabolising in order to grow and reproduce, thereby resulting in the release of metabolic by-products, some of which may produce odours; bacteria are able to cause the release of odours into the air, because some odiforous metabolic by-products are volatile; as a matter of definition, a volatile chemical is one that has a preference for being a gas rather than a liquid; in that way, metabolic by-products are released as a gas; (iii) bacteria present in the air may be aerobic or anaerobic; the extent to which bacteria existing in the air are aerobic or anaerobic depends on the environment from which they have originated; environments that may be the cause of both aerobic and anaerobic bacteria are commonly found in households; there is no simple way to determine in what proportions either aerobic or anaerobic bacteria will be present in the air; the proportion is variable and will depend on the environment from which they have been released; the majority of malodorous volatile metabolic by-products are generated through anaerobic metabolism, and hence by anaerobic bacteria; (iv) bacteria in the air can metabolise while in the air, to the extent that they have been released from an environment where they have been actively metabolising, and they do not cease metabolising as they are dispersed into the air; the metabolism of bacteria will depend on a number of factors, including the availability of food sources, the ambient temperature, water activity and other hostile factors in the environment such as ultra-violet light antibacterial chemicals and ozone; (v) bacteria are thus dispersed into the air by a number of mechanisms; once in the air, the period for which they remain airborne is usually determined by the droplet or particle size in which they are dispersed; the larger the size, the quicker the dispersed organisms will resettle onto a surface; (vi) bacteria in the air can be killed by a number of means, the most common methods being by the use of antibacterial chemicals, ultra-violet light and ozone; the amount of bacteria in the air in a household environment will vary from room to room and at any given point in time, depending on the conditions in the household in a particular room, and at a particular point in time; and (vii) it follows, given the presence of bacteria in the air in a household, that killing airborne bacteria makes a meaningful contribution to reduction of household odours. 64 Dr Priscott was therefore in disagreement with Dr Neilan that it was not possible for airborne bacteria to cause malodour in households and other indoor environments while airborne, and further with Dr Neilan's proposition that bacteria needed to be on a surface in order to produce odour, and with the yet further proposition of Dr Neilan that an aerosol spray, effective to kill airborne criteria in a room to a significant extent, would have no impact on odour caused by that airborne bacteria. Dr Priscott's conclusion was that killing bacteria in the air made a meaningful contribution to the reduction of household odours.

[14]

The evidence of SC Johnson's expert Dr Stetzenbach 65 The affidavit evidence of Dr Stetzenbach was tendered in several segments. She is an environmental microbiologist, a director of the Microbiology Division of the Harry Reid Centre for Environmental Studies at the University of Nevada, and a member of a number of American public or society committees relating to indoor air quality, microbiology, industrial hygiene and environmental health. She is the author and co-author of numerous books and scientific journal articles relating to those and related topics. The thesis of her initial affidavit evidence is largely reproduced below as follows: (i) bacteria are naturally occurring in the air outdoors and indoors, especially in occupied environments; airborne bacteria are transported indoors through natural ventilation (for example open doors and windows), mechanical systems (for example air conditioning), and infiltration (eg cracks and other openings in the building envelope); bacteria are also transported indoors on the skin and hair of occupants and pets, and on surfaces of building materials, furnishings, and food products; these surface-associated bacteria can become airborne as a result of physical disturbance, water splash, and air currents; physical disturbance can consist of routine household activity such as walking, cleaning (for example vacuuming, mopping, scrubbing), and food preparation; water splash can occur in households as a result of showering and cleaning; the velocity of the air currents needed to release organisms may be minimal, and result from air handling systems, fans, walking and natural breezes; (ii) airborne bacterial cells can settle onto surfaces when conditions are quiescent (for example no air movement is present in the room); if the bacteria are viable when they settle from the air, they can grow on surfaces if conditions are appropriate; bacteria require sufficient nutrients, correct temperature range, and available water for growth; different bacteria require different growth conditions, but household environments generally afford appropriate temperatures, and nutrients and water are commonly present in kitchens, bathrooms, and other areas of high moisture (for example basements); (iii) the relative amounts of bacteria in the air or on surfaces depend greatly upon the circumstances, including air circulation, the presence of moisture and nutrients and access to sources of bacteria; bacteria can settle from the air onto surfaces, and can go from surfaces into the air under those conditions; the use of an air sanitiser can minimise the presence of airborne bacteria; if the bacteria are effectively killed in the air, they cannot grow on surfaces when the dead cells settle out; and (iv) odours are associated with bacteria and their metabolism, and all bacteria are capable of producing odours; airborne bacteria can metabolise and thereby produce odours; both aerobic and anaerobic bacteria produce volatile organic compounds which are odiforous, and many of which are malodorous; many such compounds are commonly produced, while others are specific for a genus or a group of bacteria; it followed that minimising airborne bacteria by the use of an air sanitiser assists to reduce household odours. 66 Ms Stetzenbach provided supplementary affidavit evidence, made contemporaneously with her first affidavit evidence above, which annexed a report made by her on 17 March 2004 and arising out of her supervision of certain experiments designed 'to assess the effectiveness of an aerosol dispensed product (standard aerosol can) as an air sanitizer for use in reducing the concentration of a microbial aerosol'; her summary of that report appears below: 'S.C. Johnson & Son, Inc. contracted the University of Nevada Las Vegas to perform air chamber studies on an air sanitizer formula. The samples contained 6% Triethylene Glycol (TEG) in a standard aerosol can. The samples were tested against two bacteria commonly used for this type of evaluation. The samples were sprayed for two different spray duration times (7 seconds and 10 seconds). Reductions in the concentration of bacteria in seven experimental trials ranged from 1.4 log CFU/ml in the air sampler buffer to 3.25 log CFU/ml in the air sampler buffer (90-99.9%) reduction).' 67 Subsequent to the provision of their respective initial reports of Dr Neilan, Dr Stetzenbach and Dr Priscott, the technical/expert affidavit evidence of both parties expanded into replies and rejoinders; for the record, the same were made in the following sequence: Dr Stetzenbach : 5 August 2004 (for SC Johnson); Dr Neilan : 5 August 2004 (for Reckitt); Dr Wynn-Hatton : 6 August 2004 (for SC Johnson); Dr Neilan (again) : 17 August 2004; Mr Bowman : 17 August 2004 (for Reckitt); Mr Crank : 17 August 2004 (for Reckitt); Dr Wynn-Hatton (again) : 20 August 2004; Mr Field : 20 August 2004 (Professor of Organic Chemistry at University of Sydney) (for SC Johnson); Dr Stetzenbach (again) : 23 August 2004; Dr Neilan (again) : 24 August 2004; and Dr Stetzenbach (again) : 24 August 2004. Also an affidavit was filed by Reckitt designed to show by coloured Australian maps the average annual and monthly 9.00 am and 3.00 pm relative humidity conditions prevailing in Australia from January to December over the 30 year period from 1961-1990. 68 The further affidavit material of Dr Stetzenbach disclosed that she conducted tests, at the Harry Reid Centre for Environmental Studies, University of Nevada, upon the effectiveness of Clean & Pure in minimising the concentration of airborne bacteria. The so-called large chamber tests conducted in 2002 demonstrated in her view the effectiveness of Clean & Pure in reducing the concentration of airborne bacteria, and those 'large chamber' tests conducted in 2003 showed again a measure of effectiveness, though not as much as in the case of the 2002 'large chamber' experiments. So-called 'small chamber experiments' conducted by her in 2002-2003 were found to be inconclusive, and not as indicative of a residual environment as the large chamber tests. 69 SC Johnson also asserted a measure of support for its TEG claims from scientific literature; in particular I was referred to the following: (i) the statement appearing in the United States Environmental Protection Agency paper on air sanitisers titled DIS/TSS Sept 3 1980, Efficacy Data and Labelling Requirements : Air Sanitisers, commencing (on page 1) as follows: 'with dispensers for intermittent treatment of air, such as pressurised aerosols , several investigators have shown that glycols (triethylene, dipropylene, or propylene glycol) at concentrations of 5% or more in such formulations will temporarily reduce numbers of airborne bacteria, when adequate amounts are dispensed under relatively ideal conditions.' (ii) a 1950 paper by Lester at al demonstrating the efficacy of TEG as a bactericide; that paper stated as follows: '… triethylene glycol has been found to exert a rapid lethal action against a wide variety of airborne infectious agents' (at p813); and further as follows: 'minute quantities of triethylene glycol vapour (2 to 5 ug, per litre of air) are sufficient to produce maximal rates of bactericidal action.' (at p814).

[16]

Conclusion on Dr Crank's evidence, including Dr Field's rejoinder 71 To the extent that I have not addressed the affidavit evidence comprehensively of the abovementioned Dr Crank, it now becomes appropriate to do so. Dr Crank is an organic chemist with an impressive academic record, as well as having consulting, research and industrial experience; he has acted in particular as a consultant to various companies involved with the disinfection of air, water (including its deodorisation), waste material and surfaces. His affidavit addressed the implications and significance of TEG, and the views expressed by Dr Wynn-Hatton in that regard, to which reference has earlier been made. His criticisms of Dr Wynn-Hatton's evidence, and his conclusions, included the following: (i) although TEG can dissolve a range of compounds, it has little affinity for fatty substances or molecules with long hydrocarbon claims; it would not be possible for TEG to efficiently absorb molecules of that structural type, and accordingly 'it would not be possible to TEG to absorb all types of odorous compounds' in order to fulfil the claim on the Clean & Pure packaging that such product eliminates odours; that conclusion of Dr Crank does not seemingly reflect with accuracy however the issue he purportedly addressed, unless that Clean & Pure claim is to be fact misread as 'eliminates all types of odorous compounds'; (ii) '[o]dour causing chemicals have a wide range of diverse chemical structures and include aliphatic and aromatic hydrocarbons, esters, ketones, aldehydes, organic acids, amines, organic sulphur compound and many others, which have nothing chemically in common'; therefore the suggestion that TEG can react chemically with that wide variety of chemical compounds was described by Dr Crank as highly improbable; he said further that he was not aware of any reliable information that TEG aerosols can react chemically with any of the common odour causing chemicals in the atmosphere, in a way which could reduce or eliminate their odours; he therefore disagreed with Dr Wynn-Hatton that 'TEG aerosols kill bacteria in air, dissolve odour causing chemicals, and further react with odour causing chemical'; it was however put against Dr Crank by SC Johnson that he had no experience with TEG; (iii) the tests carried out in-house by SC Johnson, using four different odorous compounds, were also criticised by Dr Crank as bearing no resemblance to the use of the product in a household atmosphere, and should be discounted; (iv) certain experiments 'involving Raolt's law' were said to be similarly defective; moreover since Clean & Pure is not claimed to produce TEG vapour, alleged interactions detected in the experiments postulated had no application to the product; (v) these tests monitored the interaction between TEG vapour and gaseous pollutants, but Clean & Pure was not claimed to produceTEG vapour; (vi) if the SC Johnson tests had been conducted with water vapour instead of TEG vapour, 'it is likely that similar deviations from Raolt's law would have been observed', since '[w]ater is a more polar compound than TEG and undergoes strong polar interactions with other molecules', a process which was said by Dr Crank not to 'lead to changes in the chemical properties of the molecules and does not reduce odour'; and (vii) TEG dispersed as droplets by spraying the product will not form a vapour; after then referring to the boiling point of TEG and its vapour pressure at room temperatures Dr Crank further asserted that '[a] comparison between the bactericidal action of TEG vapour and TEG aerosol droplets is not valid'. 72 I do not think that Dr Crank's theses should be accepted to the extent that the same are at odds with the unified evidence provided by SC Johnson's experts. As SC Johnson has submitted, in my opinion rightly, Reckitt has engaged in criticism of SC Johnson's testing, without putting forward any evidence of independent tests of its own, yet has done so in order to confound Dr Wynn-Hatton's tests, and in particular, testing as to the effectiveness or otherwise of SC Johnson's product in eliminating airborne bacteria or odours. Dr Crank gave the following evidence under cross-examination, which derogated significantly from his affidavit theses: 'What those tests demonstrate if they demonstrate nothing else, you would agree - was that TEG has antibactericidal affects?--- No, these were to do with odours, in 25. These references provided by Dr Wynn-Hatton were about the capacity of TEG to remove odours from the atmosphere. Would you agree with me that they showed that at least in particular circumstances TEG had the physical chemical property of absorbing odours?--- Yes, under certain circumstances it does. You have done no tests or anything else to see whether or not at different concentrates or at different temperatures it would have the same effect have you?--- No, I haven't. There is no reason is there that TEG to some extent when contained in a product will continue to demonstrate that same physical property?--- Yes, that's possible. … You would agree with me, would you not, that ethanol has disinfecting properties?--- Yes, it does. So it would follow, would it not, that the product contains two elements, and I am not using elements in the technical sense, which have been shown under certain circumstances to be capable of removing odour in the case of TEG and of disinfecting in the case of ethanol?--- Yes, under certain circumstances that's true. … In that regard you would also agree with me you did nothing to test the claimed efficacy of the product?--- In terms of odour removal? Yes?--- No, I didn't test the product. … Did you make any inquiries for example of what an organisation such as the Environmental Protection Agency said about the product?--- I didn't have time to do a full survey of all the different opinions about it. And would you agree with me that a survey of that nature may have provided a far better indication than merely seeking to draw a conclusion from an advertising brochure from the manufacturer? --- Yeah, well a full investigation of scientific literature is always better than relying on one piece of information.' 73 Moreover Dr Field, a professor of organic chemistry at the University of Sydney, provided the following evidence on the effectiveness of Clean & Pure, by reason of its containing both ethanol and TEG: The bactericidal effect that you attribute to TEG, would it have that effect when used in relative small quantities as, for example, in an aerosol spray?--- As I said I am not a bacteriologist or a microbiologist, but from the properties that I have read about I would expect it to have the same effect in small droplets that it does in solution. Or at least some of the studies allude to vapour phase which really refers to the gas stage as well. Would those effects, if you are able to answer this, be enhanced by it being used in combination with ethanol?--- As I said, I am not a microbiologist, but ethanol itself is a known disinfectant. We use ethanol in many different products to sterilise surfaces. We use it to sterilise the skin when we have injections and things of that type. It both cleans and kills bacteria. So, yes, I would expect the presence of ethanol to enhance the properties of TEG.'

[17]

The submissions of Reckitt based upon the scientific evidence 74 Reckitt submitted that there is 'little dispute', apparent from the expert evidence adduced in the proceedings, about the basic scientific principles relevant to the production of odours in the household by bacteria. In support of that submission, Reckitt first pointed to the following matters said to be established by the evidence: (i) there are no bacteria, the natural habitat whereof is air, since air does not contain the essential nutrients that support bacterial metabolism and life; (ii) bacteria may become airborne in the household when they are dislodged from surfaces by some means, such as brushing, movement of surfaces or wind; bacteria are then in the air only transitionally, in that they are deposited back on surfaces relatively quickly; (iii) most bacteria, when they are transitionally airborne, either quickly die or quickly enter into a state of suspended animation and reduced metabolism, due to the lack of nutrients which are required for normal growth; and (iv) bacteria may continue to metabolise for a short time when they become airborne, either based on nutrient material stored within the bacterial cell, if they have available nutrients in the form of a dust particle or droplet on which they are suspended; however, such metabolism is only likely to continue for a very short time, being a matter of minutes. 75 Support for those propositions was said by Reckitt to be provided by Dr Neilan. Dr Priscott's evidence was said by Reckitt to support propositions (i), (ii) and (iv) above, but I do not think that such support can be maintained on the footing of the evidence of Dr Priscott which I have earlier summarised, and which I would tend to prefer. Dr Stetzenbach's evidence was said to support propositions (ii) and (iii), but I would make a similar observation. In these areas of scientific expertise, it is not feasible to claim or infer support in any such general or summarised terms as were asserted by Reckitt, particularly given the inherently relative or indefinite descriptions used by Dr Neilan, such as 'only transitionally', 'relatively quickly', 'transitionally airborne', 'suspended animation and reduced metabolism', 'normal growth' and 'a short time'. In my opinion, odour in any living area of a house is not necessarily relieved of its unpleasantness to humans because of the extent of its finite or limited duration. It was observed by Lockhart J in Bridge Stockbrokers (at 94), in relation to the operation of s 52 of the TP Act, that '… it is intended to prevent the public being misled or deceived in a practical sense', and the existence of a bad odour for the time being may well be of significantly unpleasant, albeit very limited in its life or duration. The evidence is that bacteria may produce odorous compounds called 'volatile organic compounds', being compounds produced by bacteria crystallising through metabolism; as I have just observed, the brevity of the duration of the odour does not render the same thereby insignificant to human experience. 76 Reckitt also placed particular reliance upon Dr Neilan's opinions and conclusions contained in his affidavit in reply of 17 August 2004, which responded to Dr Stetzenbach's affidavit of 5 August 2004, and also to Dr Wynn-Hatton's affidavit of 6 August 2004 (which I have earlier identified but not reproduced as to their content): (i) it is bacteria on surfaces which fill a room with odour, not any bacteria which might be airborne; and (ii) bacteria are not naturally occurring in the air, and do not meaningfully contribute to household odours, given their metabolism and the ways in which they make or generate odour compounds. Again, I do not think that such statements can be satisfactorily advanced in such bald terms. If they be correct, one must query why Reckitt has sought for its part to advance AirWick Purity's can claim as to 'neutral[ising] odours caused by germs,' and why Reckitt is presently pursuing approval from the EPAto the use of the word kill, in substitution for neutralises, by its US NeutraAir product. 77 Reckitt next addressed the evidence of its witness Dr Bowman, which focused upon aerosol technology and products generally, and also upon an analysis of the Clean & Pure product and its active ingredient TEG, and the so-called 'action' of Clean & Pure. Dr Bowman has been the Head of Analytical Services, Research and Development with Reckitt in Australia since June 2000. I refer to Dr Bowman's evidence merely for completeness, because for reasons alluded to and later explained, the same must in my opinion be put aside. Dr Bowman undertook a selection of so-called 'relative concentrations of droplets and odour causing agents, and an examination of the Clean & Pure concentrate mist refill. Dr Bowman advanced the following findings as a consequence of those experiments: (i) '… a typical spray consists of droplets of liquid formulation (containing the solvent and the active ingredient(s) dispersed in the air. From my observations, this is the case with the Glade Clean & Pure product (both in the large aerosol container and in the small concentrated mist refill container)'; (ii) '[t]he dispersed droplets of liquid formulation in such an aerosol spray are finely dispersed relative to concentrations of odorous molecules in the air… and are also transitory, in the sense that they aggregate to form larger droplets and settle on surfaces in a matter of seconds under ordinary conditions…'; (iii) [i]t is significant that the active ingredient in such an aerosol spray exists (with the solvent) in liquid droplets, rather than as a vapour… the propellant in such an aerosol product is intended to vaporise when released from the aerosol container, and does so rapidly. However, the liquid formulation mostly remains as a liquid although it is dispersed. In the case of a volatile solvent may evaporate when the liquid droplets are dispersed in the air. However, an active ingredient such as TEG which is non-volatile (it has a boiling point of 285oC) will not evaporate or vapourise and will remain as a liquid in the dispersed droplets'; (iv) '[t]his is significant because, in order for an active ingredient which is present in droplets in a liquid form to be effective, it will be necessary for the dispersed droplets to contact the odour causing agents in the air (whether they be airborne compounds or airborne bacteria) which it is intended to eliminate. Only then will the active ingredient be able to have the effect which is claimed for it. However, due to the thinly dispersed and transitory nature of such aerosol sprays, the likelihood of significant numbers of droplets contacting odour causing agents in the air is minimal…'; and (v) '[t]he combined effect of all of these factors is that an aerosol spray containing an active ingredient such as TEG, which is intended to eliminate odour causing agents in the air, is unlikely to have a significant effect in eliminating or reducing the concentration of such agents in ordinary conditions. In my opinion, this means that the Glade Clean & Pure product (in either the large aerosol container or the small Concentrated Mist Refill container) is highly unlikely to have any significant effect in eliminating or reducing odour causing agents in the air.' 78 The response of SC Johnson to Dr Bowman's evidence was that it should be entirely discounted, in the light of what emerged in the course of his cross-examination, as follows: (i) he assumed an incorrect concentration of Clean & Pure's standard aerosol as 60:40 liquid to propellent; on that assumption of error, he agreed that his results would be inaccurate to the extent of 16-17%; (ii) his use of Clean & Pure was in a 'short burst', as opposed to a 'ten second burst', which would have caused a greater proportion of the propellant to be discharged; (iii) he did not undertake any tests with a Clean & Pure product to test what effect it had on bacteria in the air; (iv) his testimony as to the number of odorous molecules exceeding the number of liquid droplets by 40 billion times had no scientific merit, because it failed to pay due regard to the vastly different sizes whereby droplets are much larger than molecules; moreover he conceded that the droplet is about 1000 times larger than the molecule, and that so much would have to be taken into account, in any consideration of the ability of the droplets to interact with the molecules; and (v) his assumption regarding odorous compounds existing at the concentration of one milligram per cubic metre was an arbitrary figure, and the significance of the concentration level would vary, having regard to different odour compounds and different people's odour threshold ranges; moreover Dr Bowman conceded that the end results of his calculations would vary, depending upon which particular odour product was used, and which particular end of the range was to be taken. 79 In the light of Dr Bowman's frankness in his responses under cross-examination, it would be unsafe in my view to accord reliance upon his evidence in preference to the evidence of SC Johnson's experts who addressed essentially the same areas of consideration.

[18]

Conclusions on the scientific evidence and the consequential outcome to the proceedings 80 The volume of scientific evidence adduced into evidence is very substantial, and could conceivably be almost without precedent in that regard in proceedings of this nature. The present contest reflects the manifestation in Australia of contemporaneous conflict in the United States between two United States based multi-national companies, inferentially equipped with substantial capital and human resources, which have been engaged in market contests for the consumer dollar for domestic room spray refresheners and related products for use in residential premises. 81 In contests involving conflicts of scientific opinions held by persons having significant academic qualifications, and some with practical experience as well, it is a formidable task for a court to determine whether one opinion is right and a conflicting opinion is wrong, or at least one is to be preferred at the expense of another, particularly where there exist so-called 'shades of grey'. In the present case, I am constrained to the view that the forensic battle involved at or close to the centre of the expert evidence adduced by the parties lies predominantly in balance in favour of that led by SC Johnson. At the bottom line, it is I think sufficiently apparent that the findings and opinions of SC Johnson's expert witnesses are reasonably open to be reached, in preference to the findings and opinions of Reckitt's expert witnesses. More specifically, the testimony of Dr Stetzenbach, and also of Dr Priscott and Dr Wynn-Hatton, individually and in combination, in my opinion presented more persuasively than that of Dr Neilan in particular, to the extent of the inconsistency or conflict between them, and of other expert evidence proffered on behalf of Reckitt as well. Of each of those four persons, I found Dr Stetzenbach to be perhaps foremost in the experience and knowledge appropriate to the resolution of the issues arising, and I have also found the evidence of Drs Priscott and Wynn-Hatton to be sound and persuasive. I have of course already made a finding adversely to Dr Crank's evidence given on behalf of Reckitt, whilst I have recorded already the shortcomings in Dr Bowman's evidence. 82 It is apparent that SC Johnson's research initiatives, leading to exploitation in the consumer market of the ingredient of TEG in ethanol solutions, has impacted positively upon the air spray product market in Australia, and that Reckitt has found itself embroiled in 'catch up' activities in order to meet a modern product challenge at the instance of SC Johnson, both in the United States andin Australia. So much is exemplified by the internal memoranda of Reckitt officers, which have been largely reproduced above, and in the aggregate occasion a significant measure of damage to Reckitt's case. In my opinion, the evidentiary opinions and findings of a scientific nature, adduced in evidence by SC Johnson, are more significantly persuasive in their reasoning and conclusions to those presented to the Court on behalf of Reckitt. That conclusion is already sufficiently apparent from what I have reviewed at length earlier in these reasons, in each case as extensively as I think reasonable bounds have permitted in the circumstances of the case. 83 Against the combined force of the expert views of SC Johnson's experts, it became a formidable task for Reckitt to demonstrate that the product claims of SC Johnson, and in particular the claim eliminates odour causing bacteria in the air, are nevertheless misleading and deceptive on scientific analysis. The scope of meaning of that descriptive expression falls to be examined, having regard to its alleged juridical character as a representation. In my judgment, the underlying notion that bacteria may rise in the atmosphere of the living area of a household, and in common or usual domestic circumstances, and for a temporary period of time however finite, has been I think sufficiently demonstrated to be tolerably sound and scientifically sensible. Of course Reckitt contended that those product claims remained misleading and deceptive, in the context in which they were made on television and on the product packaging, by way of comparison to Glen 20, but as I have already observed, the nature and extent of the product claims made on the packaging of Glen 20 are in any event limited in scope to surfaces, in contrast to the atmosphere or air. 84 I am hence of the opinion that it would not be reasonably open to a consumer to comprehend SC Johnson's product claims as encompassing, and thus being capable of effecting or bringing about, the elimination of all odour causing bacteria in the air (ie atmosphere) in a typical or usual household room, or as indicating that any such elimination would be something more than merely temporary in nature, and instead something by way of a permanent or enduring condition, in respect of odour causing bacteria. Aside from any allowance which a reasonable consumer might make for a permissible degree of advertising puffing, particularly in the case of comparative advertising (which is of course in the present case confined to the television advertising), I therefore think that the hypothetically reasonable consumer would read and comprehend that critical expression in a sense which was relative in terms of both time and space. By puffing I refer of course to the meaning ascribed by some authority as 'ignoring distinctions too fine and too precise'. So read, there exists a formidable body of scientific opinion, largely and significantly supported at least implicitly by the favourable response of the EPA in the United States to the product formula for Oust (and similarly of course governing Clean & Pure). 85 The class of customers of Clean & Pure may be expected to largely if not wholly comprise householders having a normal or average concern for the achievement or maintenance of a healthy and pleasant atmosphere in the normal living quarters of their homes, and being otherwise ordinary and reasonable members of the public. It has sometimes been the experience of the Court, in mass retailed product cases of the present kind involving alleged contraventions of ss 52 and 53 of the TP Act, for testimony to be adduced from one or more members of the public as to personal experience of having been misled or deceived by product advertising in a practical way, because of representations appearing on the packaging of a product, or as part of the theme or message of television advertising (for example the Red Bull Australia litigation earlier identified). That kind of first hand testimony has not been adduced by SC Johnson in the present proceedings, though of course it is not an essential element in cases such as the present. It is true that there is a theme of public health (though not public safety) to some extent involved in the subject matter of the representations here in issue, though nevertheless an element of public health far distant from the middle ground delineated by Lockhart J in Colgate Palmolive at 405 (infra), involving as it did in that case the subject of dental health. 86 As already discussed, there is also involved in the present proceedings, to the extent of the two SC Johnson television promotions, an element of comparative advertising on the part of SC Johnson, and authority requires that comparative advertising be correct. That comparison was made by reference to Reckitt's longstanding product Glen 20, the latter purporting to be at least an anti-bacterial surface spray disinfectant having the ability to kill germs, and not a spray which is claimed to eliminate(s) odour causing bacteria in the air. No comparable advertising of course has been made directly by SC Johnson in relation to Reckitt's recently introduced air treatment product AirWick Purity, in relation to which product promotional claims to date have been muted, at least as to its chemical composition and in particular as to the existence of any active ingredient. Whether AirWick Purity contains the active ingredient of TEG, as in the case of its sister US product NeutraAir,has been a matter of unresolved controversy, as I have earlier mentioned. Nevertheless it must be said that there exist implications, for what it may ultimately matter, which may conceivably be drawn from the evidence, that AirWick Purity is presently performing an interim function of holding the line, against the invasion of Clean & Pure,of the ground of product patronage for so long held by its stable companion Glen 20. By holding the line, I refer of course to Reckitt's present endeavours to obtain the requisite regulatory authorisation in the United States in relation to its new US product NeutraAir. 87 As will have been already deduced from my account of the scientific evidence adduced in the subject proceedings, largely unprecedented in size as that evidence is in the context of comparative product disputes in this Court, I would conclude that the same weighs in the balance significantly in favour of SC Johnson. Reading the televised and product representations of Clean & Pure to the extent which I have postulated, being an extent to be reasonably understood in context relatively in terms of time and space as I have indicated, I think that the scientific claims purportedly underpinning those representations complained derive tolerably sufficient support from the expert testimony and documentary material in evidence in the proceedings for which I have earlier expressed my preferences. After giving the matter much thought, I do not think that the product claims relevantly made by SC Johnson can be fairly described, as the authorities are willing to proscribe, half-truths, ambiguities or omissions. To my mind, the intractable nature of the scientific evidence is such as not to impugn the promotional brevity of the elimination theme complained. Nor do I think in context that any significance is to be derived from any dictionary distinctions between eliminate on the one hand and kill on the other. In any event at the bottom line, I would conclude that Reckitt has at least failed to discharge the civil onus attaching to the causes of action for contravention of ss 52 and 53(c) of the TP Act pursued in these proceedings, in the light of all the evidence upon which I have explicitly or inferentially relied in the course of assembling these reasons. 88 The application should be dismissed with costs. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.