'Go Natural Apricot Pieces in Yoghurt' and 'Go Natural Berry Pieces in Yoghurt' product names to change

By Natur-all Pty Ltd

The following article appears on the basis of an Undertaking given to the ACCC by Natur-all Pty Ltd for publication and distribution via the FoodLegal Bulletin as a compliance requirement of the Undertaking (the law firm FoodLegal negotiated the Undertaking with the ACCC on behalf of Natur-all Pty Ltd which had not previously been a client of FoodLegal):

Natur-all Pty Ltd announces changes to the names of its “Go Natural Apricot Pieces in Yoghurt” and “Go Natural Berry Pieces in Yoghurt” products to address the concerns of the ACCC.

Natur-all Pty Ltd (trading as Go Natural), a 100% Australian family-owned supplier of nutritious confectionery snacks and snack bars and one of the market leaders in this product category throughout Australia, would like to bring to the attention of the industry its recent dealings with the Australian Competition and Consumer Commission (‘ACCC’) regarding its “Go Natural Apricot Pieces in Yoghurt” product and its “Go Natural Berry Pieces in Yoghurt” product. Natur-all Pty Ltd has considered the concerns of the ACCC and is fully co-operating with the ACCC in providing the ACCC with a court enforceable undertaking under Section 87B of the Trade Practices Act 1974 (the TPA). Natur-all Pty Ltd would like to share with you some of its keys lessons from this experience.

In 1997, Natur-all Pty Ltd had launched the “Go Natural Apricot Pieces in Yoghurt” product. The product is a round ball made from a centre “piece” consisting of real dried apricot mixed with a variety of other ingredients and covered in a tangy yoghurt-flavoured coating. The ingredients in the product were designed to give the taste and mouth feel of the apricot having regard to the need for moisture stability and long shelf-life without chemical additional additives or preservatives.

In 2002, Natur-all Pty Ltd had launched another product known as the “Go Natural Berry Pieces in Yoghurt” product. This product is also a round ball made from a centre “piece” consisting of real apple and berry fruit concentrate giving the strong berry taste and mixed with a variety of other ingredients and covered in tangy yoghurt-flavoured coating. Like the other product mentioned, the ingredients in this product were also designed to give consumers the mouth feel and taste of the berries while recognising the need for moisture stability and long shelf-life of the product without additional chemical additives or preservatives.

On 15 November 2007, the ACCC wrote to Natur-all Pty Ltd to raise concerns over the use of the phrases “Apricot Pieces” and “Berry Pieces” in the names of the respective products, and in particular concern about the use of the word “pieces”. The ACCC was of the view that this descriptor of the products might potentially be interpreted by a consumer as suggesting that the products were in fact made from “actual whole pieces of apricot” or “actual whole pieces of berry” dipped in yoghurt when in fact the centre “piece” was made from a mixture of dried apricot or berry and apple concentrate with other ingredients such as sugar and semolina. As such, the ACCC believed that this descriptor might be construed as an implied representation that was being made which was “conduct that was misleading or deceptive” within the meaning of Section 52 of the TPA or “a false or misleading representation” under Section 53 of the TPA or “conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods” under Section 55 of the TPA.

Natur-all Pty Ltd never intended to make an implied representation that would breach Sections 52, 53 and/or 55 of the TPA and in fact no consumer complaints had been received by the company. Nevertheless, the company considered that there was a legitimate and serious concern by the ACCC that consumers nonetheless may gain the overall impression that “Go Natural Apricot Pieces in Yoghurt” and “Go Natural Berry Pieces in Yoghurt” were made by dipping a whole piece of fruit in yoghurt with minimal processing or without other ingredients, in processing the finished product.

Given the ACCC’s concerns, Natur-all Pty Ltd agreed to give a court enforceable undertaking to the ACCC which included an undertaking to discontinue the use of the names “Apricot Pieces in Yoghurt” and “Berry Pieces in Yoghurt” in relation to these products.

Natur-all Pty Ltd wishes to make clear that there is no safety concern in relation to the products and the ACCC did not seek any recall or withdrawal of the affected products.

Natur-all Pty Ltd also wishes to reassure its customers that the affected products are made using real fruit, such as dried apricot or as fruit concentrate and does not use artificial flavours. The ACCC has not asked for any change in composition of the products, and the nutritional value of the product was not the subject of discussion with the ACCC. Natur-all Pty Ltd will continue supplying the same popular products under the new names in order to avoid the risk identified by the ACCC that future consumers might be misled, confused or deceived.

Natur-all Pty Ltd has at all times cooperated fully with the ACCC. Natur-all Pty Ltd takes compliance and product safety matters very seriously and does not intend to allow its products to be misrepresented or to mislead consumers in any way. The matter has reinforced for Natur-all Pty Ltd that even where statements are factually correct based on a particular interpretation of the words used in a statement, it is nevertheless important from a legal viewpoint to consider the overall context in which the statement is made and to ensure that the statement is appropriately and sufficiently explained or qualified so as to not be in breach of Sections 52, 53 and/or 55 of the TPA.

As we are all aware, consumers are increasingly concerned about the contents of the foods they eat and the nutritious snack industry must give its full attention to ensuring that consumers have sufficient information to make informed decisions on nutritious snack food alternatives.

In making this experience known to you, we are conscious of the significance of this matter to the industry. We hope that by publishing this article, we will encourage promotion of better industry practice in relation to these issues and give the highest priority to the compliance requirements of the TPA and as interpreted by the ACCC.

This is general information rather than legal advice and is current as of 12 Jun 2019. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.