Nature’s Care’s Fish Oil: Is It Really ‘Australian Made’? (30-Jan-2019)
A country can have a unique reputation. For example, Italy is known for its pizza and pasta; France for its gourmet food, and amazing museums; and Australia for its kangaroos, koalas, and great beaches.
The labels ‘Made in Australia’ or ‘Manufactured in Australia’ might imply but may not necessarilty mean that the products were made or manufactured in Australia.
The decision in Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Limited [2018] FCA 1936 is an example of this.
Nature’s Care Manufacture Pty Ltd manufactured ‘Fish Oil + Vitamin D’ capsules in Australia under its ‘Healthy Care Australia’ brand. The packaging bore the well-known ‘Australian made and owned’ kangaroo logo.
The packaging is detailed below for ready reference:
The ingredients of each capsule, however, did not all come from Australia. The Vitamin D (more precisely, vitamin D3) component of the capsule was imported from China and dissolved in fish oil. The fish oil was imported from Chile. The Vitamin D and fish oil was encapsulated in a soft-gel capsule made from, among other things, glycerol imported from Indonesia. The capsules were then packaged and bore the kangaroo logo with the words ‘Australian made and owned’.
The Australian Competition and Consumer Commission (ACCC) provided guidelines regarding Country of Origin labelling for complementary health products. The guidelines noted that products did not have to include mandated origin labelling requirements that foods are required to have. Nonetheless manufacturers are not able to make false, misleading or deceptive claims that contravene the Australian Consumer Law (ACL). The guidelines stated and the Judge considered whether encapsulating imported actives was unlikely to result in a product that is fundamentally different in identity, nature or essential character, even where inactive and other excipients (inactive substances) were used.
The Australian Made Campaign Limited (AMCL) was the organisation responsible for licensing the ‘Made in Australia’ kangaroo logo. THE AMCL rejected the license renewal application of Nature’s Care, saying that the health product was not in fact ‘Australian made and owned’ for the purposes of the application of the certification mark in question.
The Federal court had regard to the circumstances of the case, and ruled that the encapsulation in Australia of the imported ingredients did not allow the capsules to be labelled ‘Australian made and owned’.
The Court concluded that there was no ‘fundamental change in the essential characteristics’ of the imported ingredients. With regard to the differences between the capsules and the fish oil and vitamin D3, the Judge stated that the only differences were :
(a) the fish oil and vitamin D3 are mixed together with no chemical change to either;
(b) the capsules generally conceal the bad flavour of the fish oil (although not invariably as in some circumstances the capsule is deliberately pierced and there remains the ever-present threat of burp-back);
(c) the capsules provide an easy means of delivering a 5µg dose of vitamin D3 which could not practically be achieved using the substance in its raw crystalline form;
(d) the capsule retards the oxidation and degradation of the fish oil; and
(e) the capsule is made from gelatine sheets.
Given the decision, it would be wise to carefully review the ACCC’s guidelines and relevant legal cases to assess whether manufacturing processes allow a manufacturer to claim that their products are truly ‘made in’ or ‘manufactured in Australia’. The key question to ask is whether the manufactured goods differ ‘fundamentally’ from the imported ingredients ‘in identity, nature or essential character’.
The AMCL provides a number of Australian Made Logos that are able to be licensed. The following image is taken from the AMCL website.
Author: Eric Badong
Sources:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2018/1936.html
https://www.lexology.com/library/detail.aspx?g=ecb82246-b199-472e-9d43-656cd88553e4