This publication is under review following the introduction of the Australian Consumer Law(ACL) on 1 January 2011. The ACL replaces previous Commonwealth, state and territory consumer protection legislation in fair trading acts. It is contained in a schedule to the Trade Practices Act 1974, which has been renamed the Competition and Consumer Act 2010 (CCA).
Amending legislation
On 1 January 2011, the Trade Practices Act 1974 (TPA) will be renamed the Competition and Consumer Act 2010. This name change is part of a suite of changes brought about by the Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 and Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010.
The new law
The new ACL is a single, national law that has been introduced by the Commonwealth to protect consumers and ensure fair trading in Australia.
The ACL forms part of the Competition and Consumer Act, and is designed to be mirrored in state and territory legislation so it applies nationally. The ACL replaces a wide range of existing national and state and territory consumer laws and will clarify understanding of the law for both Australian consumers and businesses.
Key changes introduced by the ACL include new consumer protections, a range of new enforcement powers for the Australian Competition and Consumer Commission (ACCC) and other regulators of the ACL and the introduction of a national product safety system.
Country of origin representations
The ACL provides a set of defences where a country of origin claim is made about:
goods being ‘made in’ a specified country; or
goods being the ‘product of’ a specified country; or
goods, or ingredients or components being ‘grown in’ a specified country; or
claims of origin based on the use of a prescribed logo pursuant to the ACL.
The new ‘grown in’ defence in the ACL
The ‘grown in’ country of origin defence in the ACL is new. While there has been a defence for a ‘made in’ a specified country and ‘product of’ a specified country claim in the Trade Practices Act, the ACL introduces a new defence for a claim that goods or ingredients were ‘grown in’ a specified country.
How the new ‘grown in’ defence will work
Goods are able to meet the ‘grown in’ a specified country defence test providing that the good does not make a representation as to being ‘made in’ a specified country or ‘produce of’ a specified country, and:
each significant ingredient or significant component of the good was grown in the specified country; and
all, or virtually all, processes involved in the production or manufacture happened in the specified country.
A representation that ingredients or components of goods are ‘grown in’ a specified country will satisfy the test when:
each ingredient or component that is claimed to be grown in the specified country, was grown only in that country; and
each ingredient or component that is claimed to be grown in the specified country was processed only in that country; and
50 per cent or more of the total weight of the goods is comprised of ingredients or components that were grown and processed only in the specified country.
What does grown mean?
For the purpose of a ‘grown in’ specified country claim a good, ingredient or component, will be considered to be grown if it has/was:
materially increased in size or altered in substance by natural development in the specified country; or
germinated or arose in the specified country; or
harvested, extracted or derived from an organism that has been materially increased in size or altered in substance in the specified country by natural development.
Examples of ‘grown in’ claims
Prawns Grown in Australia—claim on black tiger prawns naturally developed in an Australian aquaculture production system from Australian prawn larvae produced in an Australian landed hatchery but where the wild caught prawn spawners or broodstock may not have come from Australian waters.
Peas Grown in Australia—claim on a packet of snap frozen minted peas where the peas were germinated and harvested and packaged in Australia but where the mint was grown in China and imported into Australia for packaging with the peas. The peas are deemed to be the significant ingredient and 75 per cent of the ingoing weight of the final packaged good comprises of the peas.
Flowers Grown in Australia—claim by flower wholesaler in commercial advertising and on a website when during peak seasonal demand flowers are sourced from overseas to supplement Australian grown stock. The trader would not be able to rely upon the ‘grown in’ defence because the statement may at times be misleading, deceptive or otherwise false. The trader would need to make a more qualified claim such as ‘flowers grown in Australia and other parts of the world’.
