The Nigerian Bottling Company Limited (NBC) has admitted before the Competition and Consumer Protection Tribunal that the Federal Competition and Consumer Protection Commission (FCCPC) received evidence from NBC confirming that the mislabeling of the zero-sugar variant of Limca Lime-Lemon was “the result of a production error in one of the appellant’s eight production factories (i.e., the Abuja factory).”
NBC, in its amended appeal exclusively seen by Nairametrics, added that “the mislabeling was accidental, not a deliberate action.”
NBC and FCCPC have approached the Tribunal over the Commission’s N190 million penalty related to the former’s packaging of its Coke products, among other issues.
NBC, which also owns the Coca-Cola bottling franchise, disputed FCCPC’s accusation that Coca-Cola Nigeria Ltd (CNL) and NBC used allegedly misleading trade descriptions and employed unfair marketing tactics in the labelling of their Coke products, including Original Taste and Less Sugar variants.
NBC’s Amended Appeal Against FCCPC’s Accusations
- Recall that the FCCPC alleged that Coca-Cola Nigeria Ltd and NBC were guilty of deceiving the public by describing the “Original Taste, Less Sugar” variant of Coca-Cola as the same as the “Original Taste” variant in terms of formulation.
- These allegations have been formally countered by NBC’s legal team, led by Oluseye Opasanya SAN, who cited ten reasons in appeal number CCPT/APP/6/2024, dated September 5, 2024.
- Opasanya argued that the Commission’s findings were wrong and baseless, while its “Supplementary Order directing the Appellant to pay a penalty of N190,000,000.00” over its Coke product labelling is beyond FCCPC’s powers.
“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 added.
- He also contended that the FCCPC erred in law and acted beyond its powers when it directed that NBC be placed under monitoring and supervision for 24 months at the appellant’s cost, when the scope of its investigation and findings was only regarding the sufficiency of the labelling and advertising of the Appellant’s products.
- The Appellant also denied using any form of violence or abuse in marketing the Coke zero-sugar variant and the 50:50 variant of Limca Lime-Lemon, as alleged by the FCCPC.
- Meanwhile, the senior lawyer submitted to the Tribunal that the FCCPC had received evidence from the appellant that the mislabeling of the zero-sugar variant of Limca Lime-Lemon was the result of a production error in one of the appellant’s eight production factories (i.e., the Abuja factory).
“As such, the mislabelling was accidental, not a deliberate action,” he added.
He stressed that to establish deliberateness through compelling evidence, the FCCPC was supposed to gather evidence from the company’s remaining seven factories (i.e., Maiduguri, Asejire, Ikeja, Owerri, Challawa, Port Harcourt, and Benin) to determine if the Appellant produced the zero-sugar variant of Limca Lime-Lemon with the same mislabeling.
“The Respondent made no attempt in this regard. The Respondent’s findings were based entirely on speculative inferences drawn from supposedly similar incidents involving the appellant’s Fanta Orange and Sprite products,” he added.
- Opasanya further argued that his client applied for and obtained authorization from the National Agency for Food and Drug Administration and Control (NAFDAC) before applying the same NAFDAC registration number to both the zero-sugar and 50:50 variants of Limca Lime-Lemon.
“Having obtained the prior approval of 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, highlighting that NAFDAC and FCCPC are agencies of the federal government.
- The senior lawyer further argued that having asked the Appellant to show cause in writing, the failure of the FCCPC to give “due consideration” to the Appellant’s submissions renders its final order against it a nullity.
- The senior lawyer urged the Tribunal to quash the Commission’s final and supplementary orders, including its Investigation Report dated July 29, 2024, with respect to the Coca-Cola Less Sugar variant, the zero-sugar variant of Limca Lime-Lemon, and the 50:50 variant of Limca Lime-Lemon.
FCCPC’s Reply
- In its formal reply to NBC’s amended appeal, exclusively seen by Nairametrics, FCCPC lawyer Abimbola Ojenike urged the Tribunal to hold that the Commission has statutory authority to issue and enforce orders over an alleged company or consumer contravention.
“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 stated.
- Ojenike maintained that the evidence submitted during the investigation demonstrates that Coca-Cola and NBC allegedly breached 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 added.
He argued that the standard of differentiation required to prevent misleading or deceptive practices under the Consumer Protection Act is assessed from the perspective of a reasonable consumer.
He urged the Tribunal to dismiss the appeal as unmeritorious and proceed to affirm the orders of the FCCPC against NBC.
What You Should Know
- Nairametrics reports that Coca-Cola Nigeria Limited (CCNL) and FCCPC are also before the Tribunal over the legality of the Commission’s N186,666,666.67 penalty imposed for CCNL labelling and marketing practices, among other issues.
- On December 11, 2024, the FCCPC undertook not to take regulatory or enforcement action against NBC and Coca-Cola Nigeria Ltd pending the determination of their appeals.
- The Tribunal has adjourned to February 4, 2025, to hear the case.
