NBC has acknowledged before the Competition and Consumer Protection Tribunal that it provided the Federal Competition and Consumer Protection Commission (FCCPC) with proof that the mislabeling of the zero-sugar Limca Lime-Lemon was “the result of a production error in one of the appellant’s eight production factories (i.e., the Abuja factory).”
In its revised appeal, which THE NEWS CHRONICLES was the only source to view, NBC further said that “the mislabeling was accidental, not a deliberate action.”
In addition to other matters, NBC and FCCPC have petitioned the Tribunal about the Commission’s N190 million fine pertaining to the former’s Coke product packaging.
The FCCPC accused Coca-Cola Nigeria Ltd (CNL) and NBC of using unfair marketing practices and allegedly deceptive trade descriptions in the labelling of their Coke goods, such as Original Taste and Less Sugar varieties. NBC, which also controls the Coca-Cola bottling franchise, denied the allegations.
NBC’s Revised Rebuttal to the FCCPC’s Charges
- NBC and Coca-Cola Nigeria Ltd were accused by the FCCPC of misleading the public by claiming that the “Original Taste, Less Sugar” version of Coca-Cola was identical to the “Original Taste” version in terms of formulation.
- In an appeal number CCPT/APP/6/2024, dated September 5, 2024, NBC’s legal team, headed by Oluseye Opasanya SAN, explicitly refuted these claims with 10 grounds.
- Opasanya contended that the Commission’s conclusions were incorrect and without merit, and that the FCCPC lacked the authority to issue its “Supplementary Order directing the Appellant to pay a penalty of N190,000,000.00” regarding the labelling of its Coke product.
“The Respondent (FCCPC) does not have the power under the FCCPA or any other law to request the audited financial statements of the Appellant solely for the purpose of calculating or imposing fines on the Appellant for alleged violations of the FCCPA.”
“The Appellant has already deployed the new labels for Coke Less Sugar, which labels were pre-approved by the Respondent (FCCPC). The Respondent’s approval effectively estopped (barred) it from imposing penalties for alleged breaches of the Act,” the senior lawyer explained.
- Additionally, he argued that the FCCPC had committed a legal error and overreached itself when it ordered NBC to be monitored and supervised for 24 months at the appellant’s expense, even though the investigation’s findings and scope were limited to determining whether the appellant’s products were adequately labelled and advertised.
- Additionally, the appellant refuted the FCCPC’s allegations that it used violence or abuse to promote the 50:50 Limca Lime-Lemon and Coke zero-sugar varieties.
- The senior attorney informed the Tribunal that the appellant had provided the FCCPC with proof that a production error in one of the appellant’s eight production facilities (i.e., the Abuja factory) was the cause of the mislabeling of the zero-sugar Limca Lime-Lemon.
“As such, the mislabelling was accidental, not a deliberate action,” he noted.
He emphasised that the FCCPC was required to collect evidence from the company’s remaining seven factories (Maiduguri, Asejire, Ikeja, Owerri, Challawa, Port Harcourt, and Benin) to ascertain whether the appellant produced the zero-sugar version of Limca Lime-Lemon with the same mislabeling in order to prove deliberateness through convincing evidence.
“The Respondent didn’t try anything about it. The Respondent’s findings were entirely based on speculative inferences drawn from allegedly similar incidents involving the appellant’s Fanta Orange and Sprite products,” he continued.
- Furthermore, according to Opasanya, his client requested for and received approval from the National Agency for Food and Drug Administration and Control (NAFDAC) prior to using the same NAFDAC registration number for the 50:50 and zero-sugar Limca Lime-Lemon varieties.
“Having obtained prior approval from NAFDAC, the inscription of the same NAFDAC registration number on the packaging of the zero-sugar and 50:50 variants of Limca Lime-Lemon was not false, incorrect, misleading, fraudulent, or deceptive,” he stated, noting that NAFDAC and FCCPC are federal government agencies.
The senior attorney further contended that the FCCPC’s final order against the Appellant is void because it failed to give the Appellant’s submissions “due consideration” after requesting that they provide written justification.
The senior attorney sought the Tribunal to overturn the Commission’s final and supplemental rulings, including its July 29, 2024, Investigation Report regarding the 50:50 Limca Lime-Lemon, zero-sugar Limca Lime-Lemon, and Coca-Cola Less Sugar varieties.
FCCPC’s Response
FCCPC attorney Abimbola Ojenike urged the Tribunal to rule that the Commission has statutory authority to issue and execute orders over an alleged firm or consumer violation in its formal reply to NBC’s modified appeal, which Nairametrics exclusively saw.
“The Commission fully adhered to the principles of fair hearing and natural justice during its investigation into the labelling, branding, marketing, and advertising practices of Nigerian Bottling Company Limited (NBC), as evidenced by the facts and circumstances documented in the Record of Appeal,” he noted.
The information presented throughout the investigation, according to Ojenike, shows that Coca-Cola and NBC violated Sections 17(2), 116, 123(1)(a-c), and 124(1)(a) of the FCCPA.
“Notably, NBC admitted the violations, including admitting to simultaneously producing Limca Lemon Lime (zero sugar) and Limca Lemon Lime (50:50 sugar) in identical packaging,” he continued.
He maintained that a reasonable consumer’s viewpoint is used to determine the standard of difference that the Consumer Protection Act requires to stop deceptive or misleading tactics.
He pleaded with the Tribunal to reject the appeal as meritless and move forward with upholding the FCCPC’s rulings against NBC.
What To Note
- THE NEWS CHRONICLES reports that among other matters, Coca-Cola Nigeria Limited (CCNL) and FCCPC are also before the Tribunal regarding the validity of the N186,666,666.67 fine levied by the Commission for CCNL’s labelling and marketing practices.
- The FCCPC agreed on December 11, 2024, to refrain from pursuing regulatory or enforcement measures against Coca-Cola Nigeria Ltd. and NBC until their appeals were resolved.
- The matter will now be heard by the Tribunal on February 4, 2025.
