Legal Lies and False Trade Descriptions.
Disclaimers - will the courts choose to follow a 30 year chain of authorities or the aberration that is Lewin v Purity Soft Drinks Ltd. First published in the Justice of the Peace (2005) 169 JPN 688. Also published in (2005) TS Today.
Descriptions which tell lies
Section 3 of the Trade Descriptions Act 1968 ("TDA") defines a trade description as "false" if either it is "false to a material degree", under subsection (1), or it is deemed to be false , under subsection (2), because it is "misleading" i.e. "it is likely to be taken for … an indication of any of the matters specified in s 2." Section 2 sets out what indications, which may be direct or indirect, may constitute a trade description. Such indications include those as to the quantity, size or composition of goods.
In Surrey County Council v Clark (1992) 156 JP 798, Taylor LJ attempted to explain the distinction between falsity under ss 3(1) and 3(2) of the TDA. "The distinction", he said, "may be between an indication which tells a lie about itself and one which, whilst accurate on its face, misleads by its associations in the mind of the consumer." Subsections (1) and (2) are separate offences and, if a trade description is false, because it tells a lie about the goods to which it is applied, it is irrelevant whether anyone would actually be misled by it. Thus in Ashurst v Hayes and Benross Trading Co Ltd (1974) 82 ITSA MR 161, Widgery LCJ said that the correct sequence for the court was to first consider whether there was a trade description applied to the goods. If there was, then the court should decide if it was false within the meaning of s 3(1). Only if the court decides it is not false should the court go on to consider whether the description is misleading, and deemed to be false under s 3(2). "A defendant [cannot] be excused responsibility for applying a false trade description to his goods merely because it is likely that the average person will not be misled by it. That is not the law. The law is that one must not apply a false trade description."
Innocent lies
A person in trade or business charged, under s 1(1)(a) of the TDA, with an offence of applying a false trade description to goods or, under s 1(1)(b), with supplying goods to which a false trade description has been applied, may rely on the statutory defence under s 24 if, in either case, he can show that the offence was due to a mistake, reliance on information supplied by another, the act or default of another person, accident or cause beyond his control and that he, the defendant "took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control." In the case of a "supplying" offence under s 1(1)(b) it is also a defence for the defendant "to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods." Parliament, therefore, has mitigated the harshness of the strict liability under s 1 by enabling the innocent trader to show, if he can, that he did all he could to avoid committing an offence.
The common law has gone still further in favour of the trader by enabling, in certain circumstances, a false trade description to be disclaimed. Where a false trade description is neutralised by an effective disclaimer no offence is committed and hence no recourse by the defendant to s 24 is necessary. A s 24 defence only comes into play if an offence under s 1 has been committed. If there is no effective disclaimer it will be difficult, however, for a defendant to establish a s 24 defence since, as well as being used to prevent an offence, a disclaimer may also be a reasonable precaution within the meaning of the s 24 statutory defence. In Crook v Howells Garages (Newport) Ltd [1980] RTR 434, Donaldson LJ said:
"One reasonable precaution which can and should in almost every case be taken to avoid the commission of the offence is to issue a disclaimer. The defendants did not issue a disclaimer in this case, and accordingly it would have been impossible ... for them to have satisfied the justices that they took all - and I stress the word 'all' - reasonable precautions. There may be wholly exceptional cases of which I wot not where it can be said that, despite the absence of a disclaimer, all reasonable precautions have been taken to avoid the commission of the offence. In a sense perhaps it is not a defence at all. If a disclaimer is made no offence is committed because a false trade description is not applied. But it is very difficult to see how, in the absence of that precaution being taken with a view to avoiding the commission of the offence, it is possible to rely on section 24(1)."
Disclaiming the lie
In Norman v Bennett [1974] 3 All ER 351, Widgery LCJ said:
"Where a false trade description is attached to goods, its effect can be neutralised by an express disclaimer or contradiction of the message contained in the description. To be effective any such disclaimer must be as bold, precise and compelling as the trade description itself and must be as effectively brought to the notice of any person to whom the goods may be supplied. In other words, the disclaimer must equal the trade description in the extent to which it is likely to get home to anyone interested in receiving the goods."
Although Widgery LCJ's words were obiter, they were subsequently endorsed in numerous other cases where they formed the ratio decidendi (see e.g. the Court of Appeal's decision in R v Hammertons Cars Ltd [1976] 3 All ER 758, post).
In R v Southwood [1987] 3 All ER 556, the Court of Appeal put the brakes on too liberal a use of the disclaimer doctrine. In essence, Lane LCJ held that a trader could not use a disclaimer to convert his own lie into the truth. He said:
"If a dealer falsifies the mileage reading on a car which is offered for sale, he applies a false trade description to goods in the course of a trade, and so he commits an offence under s 1(1)(a). He would have no escape under the [statutory defence] provisions of s 24. It seems somewhat illogical to allow him to use a so-called 'disclaimer' to avoid conviction. The 'disclaimer' ... would be saying: 'This is a false trade description. I assert that it is a false trade description, and because I assert that it is a false trade description it ceases to be a false trade description applied to goods, and consequently I am not guilty of a contravention of s 1(1)(a).' The assertion does not cause the description to be any less false than it was originally, nor does it cause the description to cease to be applied to the car. It seems that on the strict wording of the Act, therefore, the so called 'disclaimer' provides no defence to a person charged under s 1 (1)(a)".
Thus, as the judge at first instance said in Newman v Hackney London Borough Council (1982) 80 LGR 611, a trader should not be able to disclaim his own deliberate fraud.
After Southwood, disclaimers were only regarded as effective in relation to offences under s 1(1)(b) of the Act where the trader, not having applied the trade description himself, was unaware of its truth or falsity and, rather than make his own enquiries as to the true position (and then declare it) was able to honestly disclaim the description by a bold precise and compelling statement that he did not know whether or not the description applied to the goods was true.
Cancelling out the lie
For the trader who, on the face of it, had applied a false trade description all was not lost for, although he could not rely on a disclaimer, he could add qualifying words to the trade description such that it was not false in the first place. In R v Bull (1996) 160 JP 240, the trader was charged with applying a false trade description by copying a false mileage from a vehicle's odometer onto a sales invoice in a box marked "Odometer Reading". Immediately after the space for the mileage on the pre-printed invoice there was an asterix, with another asterix immediately below, followed by the words: "Trade Descriptions Act 1968. We have been unable to confirm the mileage recorded on this odometer and therefore it must be considered incorrect". Waterhouse J, paraphrased this description as saying: "This vehicle has an odometer with an actual reading of 47,526 but that must be considered incorrect because we have been unable to confirm the mileage recorded upon it". Waterhouse J held that the words following the asterix were not a "mere disclaimer" (which would have been ineffective as the defendant had applied the trade description himself) but a "qualification" which was an integral part of the trade description. Reading the trade description in its entirety (or as a whole) it was not false.
A similar logic can be found in the earlier case of Wolkind and Northcott v Pura Foods Ltd (1987) 151 492. There the defendant was charged, under s 1(1)(b) TDA, with supplying goods to which the false trade description "vegetable lard" had been applied, when the goods were composed entirely of vegetable oil. The falsity was alleged to lie in the word lard which meant "pig fat". The dictionary definition of "lard", however, included "lard made from vegetable oils". In any event, even if the word "lard", taken on its own, was a false trade description, it was not a false trade description when qualified by the word "vegetable". Just as in the subsequent case of R v Bull the qualification was an integral part of the trade description itself and saved it from being false.
[The distinction between a qualification and a disclaimer was also independently made in the subsequent 2012 case of Norfolk County Trading Standards Service v Bycroft.]
Pure lies
Purity Soft Drinks Ltd ("Purity") manufactured a variety of drink products containing quantities of juice ranging from 13% to virtually 100%. The goods were sold in plastic bottles to which were applied wrap around labels describing the content of the bottles. In each case the central part of the label was the most prominent and someone reading this central section would not simultaneously see the information on the wings of the label which was out of sight because of the curvature of the bottle. When displayed on a shop shelf only the central part of the label would ordinarily be visible. The central part of the label in the case of each product consisted of the word "Juice" preceded by the name of a fruit. Below this description, of e.g. "Blackcurrant Juice", was a picture of the type of fruit, e.g. blackcurrants, and then below that the word "Burst". The words "BLACKCURRANT" and "Juice" were in letters 8mm high, that is over 5 times the height of the words in the list of ingredients which were only 1.5mm high. The labelling for a product prominently described as "Cranberry Juice" was laid out in an identical way. The ingredients list declared the cranberry juice content to be 25%. Other goods in the range, including "Orange Juice" and "Pink Grapefruit Juice" contained (but for the addition of preservatives) 100% juice. In such cases "100% Juice" appeared, in lettering 5mm high, above the ingredients list. No equivalent large letter indication of the percentage of juice appeared on those labels where the fruit content was less than 100% juice. In such cases the consumer would have to read the small print in the ingredients list to find the true juice content.
Here then were goods which, on the face of the trade descriptions applied to the central part of their labels, were different types of "Juice" and, with no qualification of that word, told the lie, in the case of the blackcurrant and cranberry products, that they were pure juice i.e. either 100% blackcurrant juice or 100% cranberry juice.
Purity were prosecuted in relation to the misdescriptions "Blackcurrant Juice" and "Cranberry Juice". Although Purity had applied those descriptions, the prosecutions were brought under ss 1(1)(b) and 23 of the Act, rather than directly under s 1(1)(a). That was because the "test purchases" were made by trading standards officers from a shop which had itself been supplied with the goods by Purity. The magistrates acquitted Purity on two bases. Firstly they considered that the trade description in each case included the word "Burst" and that when qualified by that word the descriptions "Blackcurrant Juice" and "Cranberry Juice" were not false. Secondly they held that in determining the falsity of the trade descriptions it was open to them to look at the labels as a whole. They considered that, when taking account of the true information in the ingredients list, the trade descriptions were neither false nor misleading.
The prosecution sought to appeal by way of case stated but the magistrates refused to state a case contending that the application for a case stated was "frivolous". Upon judicial review, the High Court had no difficulty in holding that the application was not frivolous and ordered the magistrates to state a case. The resulting appeal came before the Divisional Court in Lewin v Purity Soft Drinks Ltd [2004] EWHC 3119 (Admin) (2005) 169 JP 84.
Lewin v Purity
The Divisional Court decided that it was open to the magistrates to determine that the word "Burst" was part of the trade description. However, per Field J, "the justices erred in law in concluding that the word 'Burst' was a qualifying word signifying that the drink was not one hundred per cent juice. It seems to have been common ground at the hearing that the word "drink", when used with the description "juice", is a sufficient indication for labelling and trade description purposes that the drink is not pure juice. The justices appear to have reasoned from this that "Burst" was to be equiparated with "drink". … However, … for their conclusion to be sustainable in law, there had to have been some evidence before them that the public would understand the word "Burst" to have the signification that they held it to have. But there was no such evidence. Accordingly, this part of their finding cannot stand."
It is unfortunate that the word "drink" has come to be seen as a qualifier of the word "juice" such that the description "juice drink" is regarded as indicating a drink which contains juice but is not pure juice. Juice, of course, is a drink and so describing it as such ought not to say anything about its purity. The defence had argued in effect that if the word "drink" could, irrationally, indicate that a product described as "juice" was not 100% juice, then so to could the word "Burst". The prosecuting authorities general failure to proceed against those who described less than 100% juice as a "juice drink" when the practice first took hold, has enabled manufacturers to effectively engineer a situation where they have given a new meaning to an ordinary English word. It is now too late to save the word "drink" from acquiring a trade meaning, which the public is expected to share, but it cannot be too late to save the word "juice"from acquiring a diluted meaning. After all, even Purity must think that "juice" means "100% juice". If not, then what meaning is to be given to "13% juice" when referred to in the "Blackcurrant Juice" ingredients list? If "juice" as a descriptor can indicate something significantly less than 100% juice then the description "13% juice" is meaningless.
There should be no doubt as to what is meant by "juice". "Fruit juice" was defined for the purposes of the Fruit Juices and Fruit Nectars Regulations 1977 (and now in the equivalent 2003 Regulations) as "the food consisting of fermentable but unfermented juice …" The definition goes on to include such juice "obtained from fruit juice by the addition of water and has the organoleptic and analytical characteristics of fruit juice obtained from fruit of the same kind by mechanical processes." In other words, water can be added to concentrated fruit juice, and it will be properly described as "fruit juice", but only so long as no more water is added than is required to restore the natural water content of the juice.
Having determined that the word "Burst" did not qualify the words "Blackcurrant Juice", the Divisional Court went on to uphold the magistrates' alternative basis for concluding that the trade descriptions were not false. Field J said that the magistrates "were entitled to look at the ingredients list, and on that basis conclude that the trade description was not false. … The justices were not required to place the wording of the label in watertight compartments. … The justices were effectively sitting as a jury and, in deciding whether the goods had been supplied under a false trade description, they were entitled to look at the evidence as a whole." That finding was made against the appellant's submissions that the court could only look outside of the trade description, including any qualification which was an integral part of it, in accordance with the well established doctrine of disclaimer. Arguably, although the charges were under s 1(1)(b) of the TDA, rather than s 1(1)(a), the application of the principle in R v Southwood that a trader could not disclaim his own fraud meant that Purity, as the applier of the false trade description, could not rely on a disclaimer. But, even if Purity could rely on a disclaimer, the prosecution contended that the small print in the remote ingredients list was not as "bold precise and compelling" as the trade description itself and could not therefore be an effective disclaimer.
The Divisional Court, however, followed the magistrates' finding that the ingredients list was not a disclaimer. Field J said: "The ingredients list was wholly different from the clause in Norman v Bennett. The list was required to be included in the label by the Food Labelling Regulations 1996, and it positively added information rather than disclaiming a false trade description. Accordingly, for the reasons I have given, I uphold the justices' finding that the trade descriptions were not false."
Field J's distinction between "positively added information" and disclaiming information is not a tenable one. Whilst disclaimers are negative in the sense that, if effective, they negate the message given by a false trade description, they are, taken alone, positive. The classic disclaimer is the "positively added information" that an odometer reading is inaccurate and cannot be relied upon. But, if it is right that the ingredients list was not a disclaimer, it ought to have followed that the false trade description was not negated and hence that it remained a false trade description.
Neither the magistrates nor, alarmingly, the Divisional Court seem to have understood the prosecution's submissions concerning the doctrine of disclaimer. Both courts seemed to think that, if the ingredients list was not properly categorised as a disclaimer, the court was free to look at the ingredients list as part of the whole label. However, it was never the prosecution's case that the ingredients list was a disclaimer. Their case was that the ingredients list could only be effective in neutralising the false trade description if it was an effective disclaimer; and, to be effective, it had to be as bold precise and compelling as the trade description itself. Whether or not the ingredients list was capable of being a disclaimer was, on the facts of the instant case, of little consequence since neither party argued that it was effective as a disclaimer. As Purity did not regard the ingredients list as a disclaimer at all, it could hardly argue that it was an effective disclaimer. Undisclaimed and unqualified, the trade descriptions had to be read on their own as the TDA intended. It is the trade description that must be assessed as true or false, not the label on which it may appear.
The evidence as a whole
As noted above, the Divisional Court, purportedly applying, R v Hammertons Cars Ltd, concluded that the magistrates "were entitled to look at the evidence as a whole." In their thinking, that appeared to mean the same as looking at the label as a whole and hence looking at the ingredients list even though it was not in their view a disclaimer.
Although in Hammertons Cars, Lawton LJ did indeed say that "the evidence must be looked at as a whole", it is submitted that Field J (and Tuckey LJ) took those words out of context in applying them to the situation in the Purity case. What Lawton LJ said in Hammertons Cars, (applying the dicta of Widgery LCJ in Norman v Bennett [1974] 1 WLR 1229) was:
"when there is clear evidence that a false trade description has been affixed or annexed to or marked on or incorporated with the goods (see s 4(1)(a) of the 1968 Act), then there is a strong inference that that description has been applied to them unless other evidence shows that what looks like an indication as to the matters which can constitute a trade description was not such an indication at all. Common sense says that such other evidence should be bold, precise and compelling. In our judgment, it is unwise and likely to cause confusion as to the burden of proof to try to divide the evidence into that which establishes that a trade description has been applied and that which is said to be a disclaimer of that description. The evidence must be looked at as a whole."
So, although Lawton LJ said that the "evidence" must be looked at as a whole, the evidence he was referring to was the evidence of the trade description taken together with the "other evidence". That "other evidence", however, had to be "bold precise and compelling". Those latter words are the hallmark of an effective disclaimer, and were perhaps discounted by Field J because he did not consider that the ingredients list could be equated with a disclaimer. It is ironic, therefore, that he should have sought to rely on one sentence taken, out of context, from a judgment which was all about disclaimers.
The fallacy of Field J's understanding of Hammertons Cars can be demonstrated by applying his decision to the scenario of a motor car with a falsely described mileage history i.e. the spawning ground of the doctrine of disclaimer. Suppose a prominent sign attached to a car stated that the car had travelled 30,000 miles when in fact the true mileage was 80,000 miles. That sign would be a false trade description applied to the car. Suppose also, however, that the car's odometer accurately recorded the mileage as 80,000 miles. Under the pre-existing law on disclaimers the odometer reading, not being as bold precise and compelling as the sign, would not be effective to negate it. Applying Field J's new Purity doctrine, however, the odometer would be part of the evidence as a whole. Like the ingredients list, it is positively added information which the public would expect to find on the goods in question.
A trade description can now, it seems, tell a lie about the goods it refers to and yet not be a "false" trade description, if the truth can be found somewhere else in a place a customer might be expected to look. There was hitherto only the odd case, such as Durham Trading Standards v Kingsley Clothing Ltd (1990) 154 JP 124, in which credence was given to the proposition that a description could be looked at as a whole. Such cases, however, took no account of the common law doctrine of disclaimer which cannot logically co-exist with a methodology for determining the falsity of a trade description based on the entirety of everything which describes the goods as distinct from the entirety of that which is a part of the trade description. For a detailed discussion of this point see False Trade Descriptions and Economy of Truth (2002) 166 JPN 380.
Accurate but misleading?
If the Purity trade descriptions, the key word of which was "juice", did not tell a lie about the goods, such as to be false to a material degree within the meaning of s 3(1) of the TDA, the prosecution asserted that the descriptions were at the very least misleading within the meaning of s 3(2).
The magistrates had found that the trade descriptions were not misleading because a reasonable consumer could have read them in such a way that they were true. It was the prosecutions case that the magistrates had put the test the wrong way round. It was not a question of whether the public might read the description in a way which made it true but whether the public might reasonably read it in a way which made it false. This is apparent from Doble v David Greig Ltd [1972] 2 All ER 195, where, in relation to the former s 11(2) TDA, which was worded in a similar way to s 3(2), Ashworth J said: "This section was so worded as to cater for cases where possibly the wording, strictly construed, might admit of two constructions. The whole point in my view of including in s 11(2) the words 'likely to be taken as an indication' shows that Parliament was intending to protect people who might otherwise be met by a defence that on its true construction the offending words meant something different from that which they thought." Forbes J said: "The offence is giving an indication likely to be taken as an indication of the kind described in the Act. If it is reasonably possible that some customers might interpret the label as an indication of that kind, it seems to me that an offence is committed, even though many more customers might in fact take the opposite view. In other words the Act requires a shopkeeper ... to take pains to resolve possible ambiguities of this kind, and if they are not adequately resolved an offence is committed." This concept was followed in relation to misleading price indications under s 20 Consumer Protection Act 1987 in MGN Ltd v Northamptonshire County Council Council (1997) 161 JP 735, where Simon Brown LJ said: "It is … sufficient for the prosecutor's purpose to establish that some readers might reasonably interpret the advertisement as an indication that the watches are being sold elsewhere at a price approximating to their stated value, even though many more readers might, in fact, take a contrary view."
The Divisional Court in Purity, however, again chose to tread their own path. In paragraph 20 of the judgment, Field J said that "the justices were asking themselves a question that was implicit in the test that the appellant had submitted was the appropriate test, namely whether it was reasonably possible that some consumers might interpret the label incorrectly: the test is not what reasonable consumers would think, it was what reasonable consumers could think." Astoundingly, having given the impression that that was the correct test, Field J went on, in the next paragraph, to say that it was clear that the justices had applied the test of "whether a reasonable consumer would be misled, and I can see nothing wrong with such an approach. The answer they gave to the question was one which, in my opinion, they were entitled to give." The magistrates, he said, had adopted the approach sanctioned by Bingham LJ in Dixons Ltd v Barnett (1989) 153 JP 268, i.e. "It was for [the justices] to put themselves in the position of the ordinary High Street shopper and decide as a matter of fact whether this trade description was misleading or not." True it is that the magistrates (if they had formed the view that the trade description was not a lie) had to decide whether the trade description was misleading, but that did not mean that the test was whether a consumer would, as opposed to could, be misled.
The reasonable shopper
Who is the reasonable shopper? The Divisional Court in Purity did not consider that question but did consider that the magistrates were justified in determining that such shoppers would read the ingredients list. But is that true? Is a shopper who does not read the ingredients list (or composition list or components list) on goods unreasonable in not doing so? Surely the TDA is there to protect all consumers not just those who choose, or have reason because of e.g. an allergy, to read the ingredients list. Many of those who have reached middle age would not be able to read the small print on the Purity labelling without a visual aid. Is a consumer who goes shopping without his or her spectacles to be labelled as unreasonable?
The Food Standards Agency has commissioned research by MORI into the shopping habits of UK consumers. The findings of this research over each of the five years between 2000 and 2004 can be found in the Food Standards Agency's publication "Consumer Attitudes to Food Standards 2004".
In 2002, the year in which Purity was alleged to have committed the offences, MORI found that 28% of shoppers always referred to the labelling information and that a further 28% usually did. In 2004, the year in which the Divisional Court decided the appeal, only 21% of shoppers were found to always refer to the label with 28%, as before, usually referring to it. Of those who referred to information on food labels, in 2004, only 65% looked at the ingredients list. In 2004, therefore, the survey showed that 49% of shoppers either always or usually referred to the label but that only 32% of shoppers (i.e. 65% of 49%) always or usually referred to the ingredients list. It follows that 68% of shoppers did not usually refer to the ingredients list.
The most common reason why a shopper looked at the ingredients list was to check for additives such as colourings or preservatives. Others looked for an indication as to whether the food was genetically modified or was compatible with their diet for medical, vegetarian, dieting or religious reasons. Only 22% of those who looked at the ingredients list did so to see the quantity of the main ingredients. Thus less than 11% of shoppers, who always or usually looked at the ingredients list, did so to see what the quantity of the main ingredients were. Only 4.6% of consumers always did so. On occasions then, over 95% of the shopping population might not look at the ingredients list to check the quantity of the main ingredients. That does mean that all these shoppers are unreasonable. Why should they look for that information? Moreover, why should a customer have reason to look at the ingredients list to see how much juice there is in a product which has already prominently pronounced, without qualification, that it is "Blackcurrant Juice" or "Cranberry Juice"? If goods are described as nothing other than "Blackcurrant Juice" the only ingredient which the consumer could expect to find in the ingredients list is "blackcurrant juice" so why should he look at it?
How often had the judges who heard the Purity appeal gone shopping? A rather telling remark was made by Tuckey LJ who, during the course of the appellant's submissions, said that if he asked for orange juice in a hotel he would not expect it to be composed entirely of juice. One would have thought that senior members of the judiciary, more than anyone else, would have expected ordinary words to bear their natural meaning. It is quite disconcerting to think that anyone, yet alone a judge, could ask for orange juice and not be concerned if the drink they received had as little as 13% orange juice in it. Although Tuckey LJ was quick to point out that his personal expectations would not affect his decision, it illustrates why the Divisional Court may well have decided as it did. The reasonable and legitimate expectation of the consumer is to get whatever they have been promised in the trade description. The shopper is entitled to trust the trade description on a label without checking it against extraneous wording. To hold otherwise is to emasculate the legislation.
It is evident from the statutory defence in s 24 of the TDA that Parliament intended the burden of proof in terms of proving reasonableness to lie on he who applied the trade description. The Divisional Court, however, did not take the existence of s 24 into account. It is at least possible that, if they had, they would have come to a different conclusion. Telling the truth in the ingredients list may be a reasonable precaution to prevent the commission of the offence of giving false information in the headline statement. It is not, however, taking all reasonable precautions. The most obvious precaution would have been to include the juice content in the trade description. Had the products been described as "13% Blackcurrant Juice" and "25% Cranberry Juice" there could have been no question of anyone being misled. There can only be one reason why Purity chose to confine the truth about the degree of juice content to the off view small print.
The staggering fact about the drink described as "Blackcurrant Juice" is that not only was it not pure juice but it was only 13% juice of any kind. A far more accurate description (about 87% accurate) would have been "sweetened water". Clearly, from a marketing point of view, describing the product as "sweetened water" or even "Blackcurrant juice (13%)" would not be very attractive, but the purpose of the TDA is to protect consumers from being misled not to enable traders to make their goods sound more appealing.
Legalised falsity
The result of the Purity case could well be that more manufacturers and traders will consider themselves free to label products with attention grabbing headline falsities whilst burying the truth in the small print. The TDA, it seems, may no longer able to prevent it – labelling lies have been legalised.
Clearly the way to prevent the spread of such legal lies was for the prosecution to take its appeal to the House of Lords. That was indeed what it sought to do. Mr Lewin's petition seeking leave to appeal to the House of Lords, however, was refused by the Appeal Committee which decided that:
"Permission is refused because the petition does not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the cause has already been the subject of judicial decision."
Public importance
It is hard to see how the question of whether a manufacturer is legally permitted to print a lie in the headline information of a food label so long as he tells the truth in the ingredients list is not a clear point of public importance. It is a point which affects millions of consumers every day.
It is difficult to see how the appellant's case does not raise "an arguable" point of law "at this time" given that, in brushing aside the disclaimer doctrine, the Divisional Court has swept away much of the law in this area built up over the past 30 years.
It is quite perverse to refuse an application to appeal against a judicial decision on the grounds that the matter in question has already been judicially decided. The whole purpose of the prospective appeal was to challenge the judicial decision of the Divisional Court. If, on the other hand, the Appeal Committee's reference to "judicial decision" was to the pre–Purity authorities, it failed to note that the basis of the appeal was that the judicial decision in Purity was inconsistent with the previous judicial decisions.
Distinguishing Purity
Prosecutors seeking to protect the interests of consumers now face a damage limitation exercise. Some defendants may argue that the common law doctrine of disclaimer is effectively dead and will preach the new mantra of "look at the evidence as a whole". Looking at the evidence as a whole is not, of course, the same as giving equal weight to the lies and the truth; but that will not stop such submissions being made.
Purity may, at the very least, be restricted to cases where the true statement on a label, which is relied on to qualify a false one, is "positively added" in the sense that, as in Purity there was a statutory requirement to make it.
In those cases where Purity might bite, i.e. where the truth can be found in positively added information, it is still open to the prosecution to argue that it should not be followed. The fact that the Divisional Court found that the ingredients list should have been read with the headline trade description did not mean that the ingredients list would always have the effect of rendering the trade description true. In particular, a court which had before it the statistical evidence that only 32% of shoppers were likely to look at the ingredients list and only 11% were likely to look at it in order to ascertain the quantities of the main ingredients, might take the view that the reasonable shopper would not in fact look at the ingredients list. Although magistrates' courts are bound to follow decisions of the High Court they are also bound to give greater weight to the decisions of the higher courts. Purity is manifestly inconsistent with the Court of Appeal's decisions in R v Southwood and R v Bull ante. It is also at odds with the intention of Parliament as indicated by s 24 of the TDA.
Should a similar case again come before the Divisional Court, those concerned with the public interest and the rule of law, in the sense of the proper application of precedent, can only hope that the Court will choose to follow the 30 year chain of authorities rather than the aberration that is paradoxically called "Purity".
It is at least clear that the Appeal Committee's refusal to allow an appeal to the House of Lords is not to be taken as an indication that the House of Lords agrees with the Divisional Court's decision. In Wilson v Colchester Justices [1985] AC 750, this issue was considered by the House of Lords where Lord Roskill said:
"Seemingly the Divisional Court felt that [the refusal of leave to appeal] indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn. Counsel surprised your Lordships by saying that this impression was widespread in the profession. … The sooner this erroneous impression is emphatically corrected by your Lordships the better. … It is not difficult to find in the books examples of cases where, after leave to appeal has been refused in one case, another case will later arise in which leave to appeal has been given as a result of which the decision against which leave to appeal was originally refused is shown to have been wrong."
Alternative law
As an alternative to proceeding under the TDA, a prosecution in relation to a label which falsely describes a food can be brought under s 15 of the Food Safety Act 1990 ("FSA"). In the Purity case itself alternative informations were laid under s 15. Offences under s 15(1) FSA are concerned with "a label" which either "(a) falsely describes the food; or (b) is likely to mislead as to the nature or substance or quality of the food." As the court is concerned with "the label", as opposed to a description on the label, the court must look at the falsity or misleading nature of the label as a whole. Had the prosecution in the Purity case proceeded with its charges under s 15 FSA, the court would have been perfectly entitled to have considered the effect of the true information in the ingredients list together with the prominent false information. S 15(4) FSA provides that "the fact that a label … contained an accurate statement of the composition of the food shall not preclude the court from finding that the offence was committed." The court might therefore have concluded that the small print in the ingredients list was insufficient to save the label as a whole from being false or misleading bearing in mind the great prominence given to the statement which was untrue. The prosecutor in the Purity case withdrew the informations under s 15 because they added nothing substantive to those under the TDA and because, so it was thought at the time, the ingredients lists under the TDA could only save the falsity of the trade descriptions if they were as bold precise and compelling as the trade descriptions themselves (which of course they were not).
Prosecutions under s 15, after Purity, could suffer somewhat as it may be argued that if the small print in the ingredients list in that case was able to prevent a considerably more prominent trade description from being false under the TDA it would a fortiori also save the label from being false or misleading under s 15.
VICTOR SMITH
Related case digests
- Lewin v Purity Soft Drinks Ltd [2004] EWHC 3119 (Admin) - Ss 1 and 3(2), TDA.
(1) a word cannot qualify a trade description unless it has relevant meaning. (2) justices are entitled to look at the evidence, including all parts of a label, as a whole. (3) a statutory ingredients list positively added information to a food label. - therefore, it was not to be regarded as a disclaimer. (4) the test under s 3(2) was whether a reasonable consumer would be misled.