The Federal Court handed down judgment in June 2008 in proceedings taken by the ACCC against Nudie Foods Australia Pty Ltd. This, and a number of other ingredient related cases, show us that the ACCC is closely watching claims made about food and beverage content.
Facts
Nudie launched two new products in mid 2007: a “Rosie Ruby” juice and a “Rosie Blue” juice. Rosie Ruby was packaged in a transparent bottle and described on pack as “Cranberry Cloudy Juice”. Below the name and description on pack was a prominent picture of a cranberry. No other fruits were represented on the label. The juice was the same colour as cranberries.
Rosie Blue was packaged similarly and described as “Cranberry Blueberry Juice”. There was a picture of a cranberry and a blueberry on the label but no illustration of any other fruit. The label read “no preservatives, additives, added sugar or guilt”.
Over the launch months, Nudie advertised its new products in Sydney, Melbourne and Brisbane on buses, trams and street posters. The tag lines used for Rosie Ruby included “NOTHING ADDED, NOTHING GAINED (PHEW)”, “Chilled cranberry juice with no added sugar. And no guilt.” For Rosie Blue, the tag lines read “IT’S WHAT WE DON’T PUT IN THAT YOU DON’T PUT ON”, “Chilled cranberry juice with no added sugar. And no guilt.”
The only thing Nudie forgot to mention in the course of this catchy ad campaign was that both Rosie Ruby and Rosie Blue were predominantly made up of apple juice. Rosie Ruby contained 80% apple juice and Rosie Blue contained 78% apple juice.
The ACCC had an issue with this and so did the Federal Court. The Federal Court held that Nudie had breached the Trade Practices Act on 3 counts – engaging in conduct that is likely to mislead or deceive members of the public who purchase fruit juice; falsely representing that products are of a particular composition; and engaging in conduct likely to mislead the public as to the nature or characteristics of the product.
Nudie was restrained from supplying products that do not identify all of the fruits used in making them. Further, Nudie was ordered to publish corrective advertising, undertake a Trade Practices compliance program and pay the ACCC’s legal costs.
The Nudie case is just one example of a concerted strategy by the ACCC to teach suppliers of products containing fruit to be completely truthful in their advertising.
Earlier this year, the ACCC had Harvey Fresh correct the claim “100% juice” on its Apple Blackcurrant juice on the basis that the small print ingredients list showed “apple concentrate, blackcurrant flavour, grape skin extract and colour 466” as its ingredients. The ACCC accepted court enforceable undertakings from Harvey Fresh that it would not claim a fruit juice product is 100% fruit juice if the product does not contain 100% fruit juice.
Tasti Products Limited also gave court enforceable undertakings to the ACCC this year in relation to its Weight Watchers’ fruit bar packaging. The ACCC was concerned that packaging representations implied that Strawberry and Raspberry Duo fruit bars, Raspberry Pie fruit cereal bars, Apricot Pie fruit cereal bars and Fruit of the Forest cereal bars were represented so as to imply a significant amount of some individual fruits when the ingredients lists showed the individual fruits at around 1 to 1.5% of the product.
Natur all Pty Limited was also called on by the ACCC this year to give court enforceable undertakings in relation to its Go Natural berry pieces in yoghurt and its Go Natural apricot pieces in yoghurt. The ACCC was concerned that the packaging for these products implied that the products were unprocessed berry and/or apricot pieces coated in yoghurt. In fact, the products were fruit based mixtures consisting predominantly of fruit concentrate, sugar and semolina.
Summary
There is clearly no doubt in the ACCC’s mind that consumers are influenced by labelling of products containing fruit and that the overall impression given by these products is important. These cases show us yet again that the ACCC will vigorously act against any supplier making a claim about fruit that is not 100% accurate.
