Emerging vitamin brand Life Botanics has taken aim at wellness giant JS Vitamins in a social media post that has received considerable backlash from the company and its loyal consumers.
Life Botanics posted the graphic to its Instagram account showing its vitamin bottle alongside the JS Vitamin bottle, with a claim the pair have the same formula at a vastly different price.
“Identical formulations without the premium price tag” reads the graphic, with the Life Botanics product labelled $24.95 while the JS Vitamins product is labelled $44.99.
So is this allowed?
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By George Legal’s Joel Masterson says it the use of trademarks for comparative advertising is actually permitted under the Trademark Act — just look at Aldi advertisements, he says.
“But, comparative advertising has to comply with the Australian Consumer Law which means it must not be misleading or deceptive — so that just means you can’t say anything in your comparative advertising that isn’t accurate,” Masterson explains.
And that didn’t escape the attention of JS Vitamin founder and nutritionist Jessica Sepel, who commented on the Life Botanics post to take issue with what she called a “false claim”.
“This is untrue. Our kelp is exclusive to JSHealth. Had been for 4 years. So it’s a false claim,” she wrote, in reference to the graphic purporting the formulations were identical.
Masterson says it all hinges on this one claim.
“If it is actually the case that it’s impossible for Life Botanics to get the exact same ingredients — then that claim would be considered inaccurate and JS Health could sue Life Botanics under the provisions of Australian Consumer Law,” he says.
Plus, he says, “the [Australian Competition & Consumer Commission (ACCC)] might also be interested in it — though whether the ACCC takes action is ultimately up to the ACCC”.
Masterson says there are also patents to think about. If JS Health has patented their formula, for instance, “then the other people would be in serious trouble or at least at serious risk,” he says.
Life Botanics claims its Energy + Hair capsule sold out in less than 24 hours after its launch last week, and the brand’s website describes “a team of nutritionists, naturopaths, natural product developers and food scientists” based in rural New South Wales.
Hair + Energy is one of the most popular products at JS Health, a $426 million business Sepel, 33, began as a wellness blogger. JS Vitamins are now the second-most stocked vitamin brand in Australian pharmacies, with over 25 varieties targeting different health issues.
Sepel took to her Instagram story at the weekend to address the drama — writing “we get copy cats all day, but this is another level”, continuing that legal action “has to now happen” and that it was “copying on the lowest level”.
But Masterson says on first glance it doesn’t appear to be a compelling copyright case — copyright, after all, is there to protect artistic works, and the bottles are not particularly visually similar.
However, “if the bottle has enforceable copyright on it and you make a copy of it, that’s a copyright infringement,” he says.
Sepel urged her loyal following to bombard the company, saying “We’ve worked hard to be the most trusted vitamin brand in the world”.
She continued that “serious action” had been taken. But whether or not it will dent Life Botanics, who are sold on the shelves of grocer titan Coles, remains to be seen.
JS Health and Life Botanics were both approached for comment.