The Federal Competition and Consumer Protection Commission (FCCPC) has made an undertaking before the Competition and Consumer Protection Tribunal that it will not take any “regulatory or enforcement action” against Coca-Cola Nigeria Ltd pending the determination of its appeal against the Commission’s allegations against the company.
The Commission had accused Coca-Cola of alleged misleading trade descriptions and unfair marketing tactics in their products Original Taste and Less Sugar.
FCCPC lawyer Abimbola Ojenike made the oral undertaking on Wednesday before a three-member panel of the tribunal, led by Thomas Okosu.
This follows several motions by Coca-Cola Nigeria Limited in appeal number CCPT/APP/5/2024, which urged the tribunal to restrain the FCCPC from taking further regulatory and enforcement action against the appellant pending the determination of its amended appeal.
FCCPC’s accusations against Coca-Cola
Nairametrics previously reported that the commission found Coca-Cola Nigeria and Nigeria Bottling Company (NBC) in alleged violation of section 116 of the FCCPC Act as well as section 124 1(a) of the Commission’s Establishment Act.
- The FCCPC noted that Coca-Cola Nigeria Ltd and NBC were guilty of deceiving the public by describing the variant of its Coca-Cola ‘Original Taste, Less Sugar’ as the same as its ‘Original Taste’ variant in terms of formulation.
- The Commission stated that the issue of abuse of dominance and the appropriate penalty under the FCCPA and Administrative Penalties Regulation 2020 (APR) have been reserved for further regulatory action, with penalties to be imposed in due course.
The statement reads, “Accordingly, and considering that the conduct continues and remains, the Commission has entered, issued, and served its Final Order on Coca-Cola and NBC on July 29, 2024. The Final Order contains the Commission’s findings, some of which include:
“Misleading trade descriptions under Section 116 FCCPA by continuing to mislead consumers into believing Coca-Cola Original Taste is not materially different from Coca-Cola Original Taste ‘Less Sugar.”
“Unfair marketing tactics: Contrary to Section 124(1)(a) of the FCCPA, Coca-Cola Nigeria markets Coca-Cola Original Taste Less Sugar in packaging first, indistinguishable, and now not sufficiently distinguishable from Coca-Cola Original Taste, contrary to Sections 123(1)(a), (b), and (c) of the FCCPA.”
“Further, Coca-Cola and NBC, after regulatory intervention, still failed to take appropriate steps to modify misleading behavior, demonstrating that the companies acted intentionally by misrepresenting Coca-Cola Original Taste Less Sugar as Coca-Cola Original Taste in a deliberate business strategy.”
The Commission further accused the NBC of using identical packaging for both Zero Sugar and its 50:50 variant of the Limca Lime-Lemon-flavored drink, allegedly misleading consumers and violating Sections 17(g), 116(1) & (2), and 123 of the FCCPA and Section 2(a) of the National Agency for Food and Drug Administration and Control Act 2004.
What transpired at the tribunal
At the resumed sitting on Wednesday, Professor Gbolahan Elias SAN and Abubakar G. Anafi announced the appearance of Coca-Cola.
- Anafi urged the tribunal to restrain the FCCPC in line with its motions seeking restraining orders.
“The second motion is dated August 21, 2024, and it is also seeking to restrain the respondent from taking further regulatory and enforcement action against the appellant,” he added.
- Responding, FCCPC lawyer Ojenike assured the tribunal that the Commission would halt taking any enforcement action against Coca-Cola pending the determination of the appeal.
“In this case seeking an injunction, we provide an undertaking that the Commission will not take any enforcement or regulatory step while the appeal is pending,” he said.
- Ojenike also urged the tribunal to allow it to formally respond to Coca-Cola’s amended notice of appeal.
- Anafi told the tribunal that in view of the undertaking by the counsel of FCCPC that the Commission will not take any enforcement and regulatory action against the appellant, he applies to withdraw the motions aforementioned.
- Ruling on their submissions, Okosu held that following FCCPC’s undertaking, the appellant’s withdrawal of its restraining motions is granted.
“In view of the withdrawal of the motions by the appellant predicated on the undertaking of the FCCPC that it will not take any enforcement action against Coca-Cola pending the determination of the appeal, the application to withdraw the motions is granted,” the judge said.
History of the FCCPC investigation
The Commission had clarified that it initiated its investigation in 2019 after the companies transitioned the Coke brand from regular sugar to non-nutritive sweeteners.
It was alleged that these practices followed similar actions with the Sprite and Fanta brands, which violated FCCPA regulations on misleading trade descriptions and abuse of dominant market positions in certain locations.
Coca-Cola had denied the allegations.
