Australian Competition and Consumer Commission v Arnott's Biscuits Ltd [2008] FCA 590

  • ACCC continues to see claims involving fruit as a priority.
  • Consent orders represented commercial solution with Arnotts being allowed three months to trade out existing stock.

For some time now, the ACCC has been giving attention to representations involving fruit on food packaging and in labelling (see for example Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2004] FCA 516). Each decision will turn on a consideration of its own facts. However, this decision is another salient example that the ACCC will look at the overall impression in deciding whether packaging is misleading and deceptive.

The fruit claims

Arnotts supplied various biscuits called "Arnott's Snack Right fruit pillows" in different varients. The words of the varients, for example "Apple & Blackberry", appeared in a large and prominent font on the top and front of the package.

No other fruit was referred to in the name of the biscuit; prominent pictorial representations of the variant types appeared on the front and sides of the package, no pictorial representations of any other fruit appeared on the package. Whatever the varient, the majority of the fruit in the filling was sultanas.

The ACCC alleged that this conduct was likely to mislead or deceive contrary to section 52(1) Trade Practices Act, falsely represented that the biscuits were of a particular composition, contrary to section 53(a), and constituted conduct that was liable to mislead the public as to the nature or characteristics of the biscuits, contrary to section 55 of the Act.

By consent, the court ordered that:

1. The Respondent cease manufacturing and supplying the Snack Right biscuit products in the offending packaging within three months from the making of these orders.

2. The Respondent not supply fruit pillow or fruit slice-type biscuits in the formulation of the Snack Right biscuits in packaging that conveys the overall impression, whether by words, images or a combination of words and images that the filling in the biscuit:

a. consists predominantly of a particular fruit or particular fruits; or

b. includes a not insubstantial proportion of a particular fruit or particular fruits, unless:

i. the filling consists predominantly of the particular fruit or particular fruits; or

ii. the filling includes more than an insubstantial proportion of the particular fruit or particular fruits.

3. The Respondent publish a corrective notice on the "Our Products" page of the Respondent's website (www.arnotts.com.au ) for a period of six months from the making of these orders.

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