14 March, 2009

my correspondence with the ACCC

5th March 2009

Neverfail bottled springwater Coca Cola Amatil

To whom it may concern,

Coca Cola Amatil (CCA) market a product called "Neverfail" with a slogan: Neverfail Springwater...the way nature intended it to be!

I have not consulted nature, but last time I checked water in high density polyethylene bottles delvered by road transport does not appear to be the way she intended....

CCA are marketing Neverfail as: "Authentic Australian spring water with a refreshing clean taste and crystal-clear presentation In reality, to obtain the taste and the presentation, the water is more likely to be processed through energy intensive continous microfiltration plants .....

I would be really interested to see the life cycle analysis and the GHG emissions associated with this form of water treatment & distribution....

I believe CCA and Neverfail are misrepresenting "Nature"....surely this is a breach of the Trade Practices Act....

Rowan Barber

Dear Mr Rowan Barber,

Thank you for your email of 5 March to the Australian Competition and Consumer Commission (ACCC) regarding Coca Cola Amatil.

The role of the ACCC is to ensure compliance with the Trade Practices Act 1974 (TPA), which is designed to encourage fair trading and discourage anti-competitive conduct through a specific set of competition and consumer protection rules.

Section 52 of the TPA prohibits corporations engaged in trade or commerce from engaging in behaviour that is misleading or deceptive or is likely to mislead or deceive. While the claim that the bottled water is intended by nature might be difficult to sustain, it should be appreciated that there is a fine line between mere exaggeration on the one hand and misleading conduct on the other. The courts have recognised that a degree of latitude is to be allowed in relation to advertising. It is, by its nature, likely to reflect the enthusiasm of the advertiser to place its product or service in a favourable light and consumers generally understand this. The test to be applied is one of reasonableness. Ordinary readers can and do read between the lines in the light of general experience and knowledge. Accordingly, it is the view of this office that a court is unlikely to consider the any such representation made by Coca Cola Amatil would be misleading or deceptive.

In assessing any complaint, staff of the ACCC would generally determine whether or not the matter falls within the jurisdiction of the TPA, whether or not there appears to have been a breach of the TPA, and if so, whether the impact of the conduct is so serious and widespread that it is appropriate that the ACCC should take some action.

As part of its role the ACCC also monitors emerging trends across consumer and business complaints to determine whether there is a pattern of behaviour by a particular trader or in a particular industry that requires attention. In this regard, your complaint has been recorded and is an important part of our ongoing analysis.

Thank you for contacting the ACCC and I hope that the above information is of some assistance.

Yours sincerely,

ACCC Infocentre
1300 302 502

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