(By Darrell Choong and Amelia Edwards)
It has been a ‘fine’ time for the ACCC this year – a fact to which Ozwear Connection (‘Ozwear’)and Birubi Art (‘Birubi’) will no doubt attest. Both these entities have caught the attention of the regulator in relation to country of origin claims.
Under the Australian Consumer Law (‘ACL’), businesses are prohibited from making false or misleading representations, or engaging in misleading or deceptive conduct.
In the context of country of origin claims, such claims can be established through either words, or images such as a national flag, or icons typically associated with a country. A false claim that a particular good was produced in Iceland, when it was actually produced in Zimbabwe for instance, may be a breach of the ACL, and an invitation for the ACCC to descend upon the business with an iron fist.
So, what did Ozwear and Birubi do to warrant the ACCC’s wrath?
Ozwear, a footwear and accessories wholesaler was given the boot by the ACCC for false country of origin representations made about its “Classic Ugg” range of boots by:
- claiming on its website that it was 100% Australian-owned,
- claiming that its “Classic Ugg” range was made using “the best materials available in Australia”
- attaching a tag to the “Classic Ugg” range of boots that was green and gold, shaped like a map of Australia, with the words “this exclusive premium label is a uniquely Australian owned brand for authentic Australian Ugg boots”.
The above representations made Ozwear a shoo-in (shoe-in?) for a finding of false representation. Specifically, the ACCC found that the representations gave rise to an impression that the boots were Australian made even though they were actually made in China. Ozwear paid fines totaling $25,200 after the ACCC issued two infringement notices.
Birubi meanwhile, sold boomerangs, bullroarers, digeridoos and message stones to stores around Australia from July 2015 to November 2017. The products featured designs associated with Australian Aboriginal art and words such as “Aboriginal Art”, “genuine” and “Australia”. However, the products were actually produced in Indonesia.
The ACCC instituted legal action against Birubi in March 2018 as the representations conveyed that the products were hand made in Australia by Aboriginal persons, and were therefore, false or misleading representations.
The Federal Court agreed with the ACCC in a decision that was handed down on 23 October 2018, finding that Birubi made false or misleading representations concerning the place of origin of goods in connection with the supply of goods.
The penalties against Birubi will be decided at a later date in Court, but they will undoubtedly be steep.
On the warpath
The ACCC has signaled its intention to focus on country of origin claims.
If you have any questions about the country of origin labels or images on your products, please do not hesitate to contact Amelia Edwards or another member of the KHQ corporate & commercial team.