Important High Court consideration of Trade Descriptions Act and Food Labelling.

Lewin v Purity Soft Drinks [2004] EWHC 3119

The case concerned the labelling of bottles of cranberry and blackcurrant fruit juice. On each bottle there was a picture of the fruit in question under the words “Blackberry (or Cranberry) Juice”, each with the word “burst” underneath. To the left of this representation was specified typical values per 100 ml, and under that some words which included “a refreshing fruit based drink”. There was also a list of ingredients that included the particular fruit, followed by the relevant percentage. A purchaser looking at the centre of the label would have to rotate the bottle somewhat in order to read the ingredient list.

Prosecution

It was alleged the descriptions applied to the fruit juice were false in that they indicated that the drinks were 100% when, in fact, the fruit juice content was less than 100%.

It was further alleged that the trade descriptions, if not false, were misleading.

Magistrates Court

The Magistrates found that “burst” signified that the drinks in question were not necessarily 100% fruit juice.

They further ruled that they and consumers were entitled to consider the label as a whole.

It was held that, even if “Blackberry (Cranberry) Juice” were the relevant trade descriptions, these would not be false because a reasonable consumer faced with such products would expect to read the label as a whole, including the ingredient list, and would be familiar with the idea that the ingredient list was likely to appear on the label.

It was found that the description of “Blackberry or Cranberry Juice” was not misleading in that the reasonable consumer would interpret the use of “juice” in a way which was not misleading. Finally, the Justices stated that they were entitled to take notice of the commonsense fact that the relevant fruits were by nature bitter and would not be palatable in a non diluted form.

The Magistrates held that, the notion of a disclaimer, in this case the ingredient list, did not apply as the ingredients list was a statutory requirement under the fruit juices regulations (reg 4).

High Court

The prosecution appellants argued that “burst” was meaningless and therefore could not have a qualifying effect.

It was further argued that the fact the fruit content was placed elsewhere on the label, was again, not a matter which the Justices should have recognised.

The High Court found that the Justices were correct to have regard to the word “burst” but that they should not have found it to be a qualification. It was established that “drink” would be enough to indicate that the drink was not pure juice. But that the assumption by the Justices that “burst” could be read in the same way as “drink” could not be sustained. There was no evidence before them that the public would read “burst” in this way.

The issue as to whether or not the fruit content as stated in the ingredient list could be taken into account was considered.

The High Court ruled that the Justices were indeed entitled to consider the label as a whole. They were entitled to regard the entirety of the evidence, and by having regard to what, in their experience, a reasonable consumer might be expected to do, that is to say, read the label as a whole.

The appellants had argued that the ingredient list was a disclaimer and as such would not be sufficient as it was not as bold precise and compelling as the trade description which it sought to disclaim. (Authority Norman v Bennett [1974] 1WLR 1229).

The High Court agreed with the Magistrates that the ingredient list could not be regarded as a disclaimer. This was because it was specifically required by the Fruit Nectars Regulations 1977, and because it “filled out” the description rather than disclaimed it.

Reasonable consumer test

In respect of the allegation that, if not false, the trade description was misleading, the prosecution appellants argued that the Magistrates had been wrong to ask whether a reasonable consumer could have understood the label in a manner which was accurate. It was stated that the correct question was whether such a consumer could have read the trade description in such a way that it would have been to him either false or misleading.

The High Court held the test to apply was not that of conceivability, but whether it was likely that there would be a particular reading of a trade description in a way which rendered it misleading. The High Court found that the correct test had been applied. The Magistrates had, in effect, asked whether a reasonable consumer would be misled, and the answer they gave to that question was one which was reasonably opened to them.

The final point raised by the appellants was that the Justices had been wrong to take judicial notice of the fact the fruit in question was known by the public to be bitter in an undiluted form. It had, however, been agreed before the hearing in front of the Justices that blackcurrant and cranberry were both bitter fruits. Given this, the High Court felt that no objection could be taken to the Justices proceeding on that basis; they were held equally entitled to conclude that consumers would know this.

The appeal was therefore dismissed.

Conclusions

This case sets out important legal principles as to the status of ingredients lists, what may be considered as part of any trade description and the test that is to be applied. In summary, this may be set out as:

• The use of “meaningless” descriptive words should be used with care and if they are used to replace a word which has a commonly understood and judicially interpreted meaning.
• A label may be considered as a whole, and may not be separated into a watertight compartments in relation to any trade descriptions made within it.
• Where an ingredients list is a statutory requirement it may not be regarded as a disclaimer. Further, it may be argued that an ingredient list “fills out” the trade description of a product rather than acts to disclaim it. The usual considerations that the disclaimer be at least as “bold, precise and compelling” (Norman v Bennett 1974) as the trade description which it sought to disclaim does not therefore apply.
• The test for whether a trade description is false or misleading was whether a reasonable consumer was likely to be misled. It is not whether or not a reasonable consumer could have understood the label in a manner which was accurate or in such a way that it would have been either false or misleading. The test is not one of conceivability, but one of likelihood.
• Finally that which is common knowledge to the Magistrates they are equally entitled to conclude that the reasonable consumer would know.

This article first appeared in our Food industry law bulletin May 2005. To view this publication, please click here to open a new window.