Tugcu v Mars Australia Pty Ltd [2008] NSWSC 377
- Prompt remedial action by a company can prevent orders being made against the company.
There is nothing too special about the legal principles in this case - except that it is a nice example of where sloppy labelling compliance gets you and how a quick corporate response can save embarrassment.
The plaintiff family had been consuming Dolmio products for many years, swayed in part by its creamy pasta goodness but also by the label which claimed the product was halal.
Halal is a Islamic word meaning lawful or permitted. In reference to food, it is the dietary standard, as prescribed in the Koran, the Muslim scripture. Dolmio's Pasta Bake Creamy Mushroom, however, contained some white wine so it was not halal.
The Tugcu family sued Domio's maker, Mars, for breach of section 52 of the Trade Practices Act seeking an injunction and damages. An injunction is an order of a court restraining a party from doing a particular act. For example, a court can order a company cease distribution of a product with an erroneous label. An injunction is a discretionary remedy. Whether an injunction is granted will depend on the fairness of the circumstances and whether there is any particular urgency in preventing an act from continuing.
In this case, Justice Gzell of the NSW Supreme Court refused to grant an injunction against Mars as it had already:
- put an immediate stop on the release of all stock on hand of Dolmio products bearing the mistaken label so that no more of that product was distributed to the market;
- developed and was implementing a plan to have all stock of Dolmio product bearing the mistaken label removed from retailers' shelves so the product was not sold unless and until it was correctly labelled;
- contacted the Halal Certification Authority Australia to advise it of its error, of the steps it was taking to rectify that error, and of the process for dealing with any consumer complaints or inquiries;
- placed a notice on the Dolmio website of the error, the steps being taken to rectify it and Mars' willingness to replace or refund product where consumers are of the view that they were misled by the use of the halal logo; and
- launched an internal investigation into errors and oversights which took place during the label development stage.
In short, the court thought that an injunction would serve no useful purpose, as what was necessary had already been done.
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