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Consumer watchdog takes Lorna Jane to court over 'anti-virus' claims

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Brisbane-based active wear retailer Lorna Jane will be dragged into court by the consumer watchdog for allegedly making false and misleading claims over its marketing of anti-virus activewear.

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It’s the company’s second hit from regulators after Therapeutic Goods Administration earlier this year issued three infringement notices totalling $39,960 in fines for alleged unlawful advertising in relation to COVID-19.

The Australian Competition and Consumer Commission said that in July this year Lorna Jane claimed that its ‘Anti-virus Activewear’, which was sprayed with a substance called “LJ Shield”, eliminated and stopped the spread of COVID-19 and provided protection against viruses and pathogens, including COVID-19, when this was not the case.

It has also been alleged founder and co-director Lorna Jane Clarkson was knowingly concerned in the alleged conduct, including by personally making false or misleading claims about the LJ Shield “Anti-virus Activewear” in a media release and a video posted on Lorna Jane’s Instagram account.

At the time the company said the solution was applied as a water-based, non-toxic mist and permanently adhered to our garments. “Any bacteria that comes in contact with the fabric is terminated when it comes in touch with the LJ Shield particles,” it said in its promotional material.

“LJ Shield breaks through the membrane shell of bacteria or germs that come into contact with it, not only killing that microbe but preventing it from multiplying into anymore.”

The ACCC said the claims, made over a wide range of media including on Instagram, on its website and in stores, included Cure for the Spread of COVID-19? Lorna Jane Thinks So”, “With Lorna Jane Shield on our garments it meant that we were completely eliminating the possibility of spreading any deadly viruses”, and “LJ Shield – Protecting you with ANTI-VIRUS ACTIVEWEAR”.

The ACCC said most of the claims were removed in mid-July, but until at least November Lorna Jane continued to represent on garment tags that the garment permanently protected the wearers against pathogens.

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

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

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

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

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

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

Lorna Jane has 108 stores in Australia, as well as a number of international stores, including in the USA and New Zealand.

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

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