Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd; Tumney (NSW Food Authority) v Michael Speare Hocken Sharpe; Tumney (NSW Food Authority) v Toni Lee Brendish [2008] NSWSC 1382

Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd; Tumney (NSW Food Authority) v Michael Speare Hocken Sharpe; Tumney (NSW Food Authority) v Toni Lee Brendish [2008] NSWSC 1382

The prosecution could not point to, nor adduce, evidence capable of proving that FOS or GOS are not normally consumed as food in itself or as ingredients and thus are not 'nutritive substances' as defined in Standard 1.1.1, which definition applies throughout the Code including Standard 2.9.1. Accordingly, essential elements of the charges under s 21(2) (composition) and under s 18(3) (false description) could not be established. As for the energy content charges, the applicable clause of the Code imposed no relevant requirement on the food and thus could not found a charge under s 21(2). Labelling charges relating to health claims and prophylactic (but not therapeutic) claims could not...

Jurisdiction
Australia
Judgment Date
22 December 2008
Procedural Posture
Criminal Stay Application / Application for Permanent Stay/quashing of Criminal Proceedings Prior to Trial
Outcome
Permanent stay granted in part; certain charges stayed; remaining charges to proceed to hearing
Legal Topics
['abuse of Process' 'permanent Stay of Proceedings' 'interpretation of Legislative Instruments' 'food Standards—infant Formula' 'misleading Conduct—product Labelling']
['criminal Law' 'administrative Law' 'statutory Interpretation' 'food Law'] ['abuse of Process' 'permanent Stay of Proceedings' 'interpretation of Legislative Instruments' 'food Standards—infant Formula' 'misleading Conduct—product Labelling']

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Procedural Posture

Criminal Stay Application / Application for Permanent Stay/quashing of Criminal Proceedings Prior to Trial

Legal Issues

  1. 1 ["Whether there is any prospect of conviction on charges relating to addition of FOS and GOS to infant formula under Food Act 2003 (NSW) and the Food Standards Code; construction of 'nutritive substance' in the Code; whether the prosecution case is supported by sufficient evidence; proper interpretation of Code labelling provisions regarding therapeutic, prophylactic, and health claims; whether charges relating to miscalculation of energy content properly allege non-compliance with a Code requirement."]

Ratio Decidendi

The prosecution could not point to, nor adduce, evidence capable of proving that FOS or GOS are not normally consumed as food in itself or as ingredients and thus are not 'nutritive substances' as defined in Standard 1.1.1, which definition applies throughout the Code including Standard 2.9.1. Accordingly, essential elements of the charges under s 21(2) (composition) and under s 18(3) (false description) could not be established. As for the energy content charges, the applicable clause of the Code imposed no relevant requirement on the food and thus could not found a charge under s 21(2). Labelling charges relating to health claims and prophylactic (but not therapeutic) claims could not...

Court Disposition

Permanent stay granted in part; certain charges stayed; remaining charges to proceed to hearing

Orders

  • ['Permanent stay granted for all composition charges concerning FOS and GOS under s 21(2) and for all false description charges under s 18(3);' 'Permanent stay granted for all energy content charges under s 21(2);' 'Prosecution on labelling charges under s 21(3) may proceed to a hearing (prophylactic and health...