Previously on marketinglaw we reported that a prosecution was under way against Asda for describing its mangoes as helping to fight cancer. Now the hearing has taken place and the court has pronounced. We report on what some have branded a ridiculous case at
Topic: Food
Who: Asda and Swindon Council's Trading Standards Department
Where: Swindon Magistrates
When: October 2004
What happened:
Supermarket Asda was fined £5,000 for making illegal claims about the anti cancer properties of its mangoes.
As previously reported on www.marketinglaw.co.uk, in June 2003 Swindon Trading Standards spotted a sign in the local Asda immediately adjacent to mangoes on display for sale. The sign said "Their antioxidant properties help to fight cancer".
The 1996 Food Labelling Regulations prohibit any labelling claiming that a food prevents, treats or cures a disease.
The sign had been put on display after being written by a qualified company nutritionist but had not been approved by the Asda Trading Standards Team as was normal company policy.
Swindon Trading Standards brought a prosecution under the 1996 Regulations.
Initially Asda had argued that though the words in the claim were illegal, they were not untrue. In mitigation their counsel said that the putting up of the sign was a genuine mistake made in good faith, that the company was morally blameless and that it was hardly in the public interest to prosecute retailers over the promotion of healthy eating.
The prosecution argued that the Regulations were there for a reason, and that particularly those who suffered from serious illnesses such as the one referred to in the sign were vulnerable members of society and should be protected from claims of this kind.
The Court accepted the prosecution case and fined Asda the maximum of £5,000, also ordering it to pay £1,140 costs.
Why this matters:
Outside court, an Asda spokesman said "we think this is an absolute storm in a fruit basket. We cannot believe we are in the dock for telling people that eating fruit and vegetables is good for them".
The difficulty was that the sign went much further than this and in general, references to serious illness in this sort of context are always going to be problematic, however much this decision does seem to jar with the current strong pressure for the promotion of healthy eating.
