Australian Competition and Consumer Commission v Nudie Foods Australia Pty Ltd [2008] FCA 943

  • Guidance given to manufacturers as to what the ACCC thinks is appropriate labelling of fruit content. More on fruit.

The question of how to represent the fruit content in foods and drink vexes many manufacturers where a mixture of fruits are used and the predominant flavour may not be the main fruit ingredient.

In these proceedings, Nudie admitted that it had represented that its drinks were cranberry juice ("Rosie Ruby") and cranberry juice with blueberries ("Rosie Blue"). It had done so in a number of ways. For example, on the Rosie Rubie label there was a prominent picture of a cranberry on a white background and no pictorial representation on the label of any other type of fruit. Signboards on buses, and trams, and street posters also described Rosie Ruby as "cranberry cloudy juice" and stated "NOTHING ADDED, NOTHING GAINED (PHEW)".

In fact, both varieties largely comprised of apple juice. For example, the proportion of cranberry juice in Rosie Ruby was 20 percent.

Nudie admitted that it contravened the Trade Practices Act in three ways:

  • first, it had engaged in conduct that was likely to mislead and deceive those members of the public that purchase fruit juice in contravention of section 52(1);
  • second, it had falsely represented that the products were of a particular composition in contravention of section 53(a); and
  • third, it had engaged in conduct that was liable to mislead those members of the public that purchase fruit juice as to the nature or characteristics of the product in contravention of section 55.

Why the case is interesting, however, lies in the orders which were made by consent, which give manufacturers some guidance as to what the regulator thinks is appropriate labelling of fruit content. Justice French make orders restraining Nudie from:

  • supplying products bearing labels that use a product name or a description that includes the name of a fruit without identifying all of the fruits used in making the Nudie Product or alerting the consumer to the fact that fruit or fruits other than those identified in the product name or description were used in making the Nudie Product;
  • supplying products bearing labels or packaging that display a picture or a graphic representation of a fruit without including a picture or graphic representation of every fruit, which contributes (by way of liquids and suspended solids) used in making the Nudie Product that comprises more than 5 percent of the Nudie Product by volume; and
  • publishing any advertising or promotional material that represents that the juice in a Nudie Product consists solely of the juice of a particular fruit or particular fruits when the Nudie Product contains the juice of other fruits.

Nudie was also ordered to publish a corrective advertisement on its website (which was to be viewable immediately on-screen after the www.lifeisrosie.com.au website is opened) and to implement an education training and trade practices compliance program to be consistent with the Australian Standard on Compliance Programs AS3806.

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