Good news for the complementary medicine industry in that the Industry Minister Karen Andrews announced in April that the government will be introducing changes which would see complementary medicines manufactured in TGA-approved Australian production facilities to qualify to carry a ‘made in Australia’ claim and the Australian Made logo. It goes without saying that this is very important for marketing Australian products overseas and particularly in the lucrative Asian Markets.
The government set up the task force to consider the effect on the complementary medicine industry in response the ACCC case against Nature’s Care in December last year and their claims of Australian made in relation to their fish oil product. The product was a soft gel capsule marketed as “Fish Oil + Vitamin D” and had packaging which bore the “Australian made and owned” kangaroo logo.
The case arose as earlier that year, Nature’s Care applied to renew its licence from the Australian Made Campaign and was turned down. Nature’s Care instituted proceedings in the Federal Court for a declaration its Fish Oil 1000 + Vitamin D3 product was last ‘substantially transformed’ in Australia, which would have permitted it to be labelled ‘Made in Australia’ despite containing primarily imported ingredients.
Any claims regarding country of origin cannot be false, misleading or deceptive in contravention of the ACL. The ACL does however set out several “safe harbour” defences which provide a statutory defence. Ultimately any defence will depend upon the nature of the product and the country of origin claim, but broadly any “made in” claim will require a product to have undergone its last “substantial transformation” in the named country.
In the Nature’s Care case the court considered the imported ingredients and the process of encapsulation. They found that the mix of fish oil and vitamin D in the capsules was identical to the fish oil imported from Chile and the vitamin D imported from China. Justice Perram said “ Fish oil is fish oil”. He referred to the ACCCs guidance (March 2018) and the example of the encapsulation of Krill oil with other excipients as not being a substantial transformation. Justice Perram referred to the fact that he did not accept that there had been any change to the qualities of the fish oil as a result of its mixing with vitamin D3. In particular no change to its molecular structure or fundamental change to its chemical qualities.
The Federal Court ruled in favour of the Australian Made Campaign and Australian Competition and Consumer Commission, that Nature’s Care Manufacture Pty Ltd was not permitted to label the product “Made in Australia” under the Australian Consumer Law’s Country of Origin labelling provisions
It will be interesting to see how the government will introduce these changes and whether the claims can be used more broadly.
