Country of origin claims and the Australian Consumer Law - A guide for business
Some Australian consumers are willing to pay a premium for products they believe are made in, grown in or product of a particular country, especially Australia. Any country of origin claim should provide consumers with clear, accurate and truthful information about what they are buying.
The Australian Consumer Law (ACL) does not require businesses to make country of origin claims, although some other laws may do so for products such as food and imported goods.
This guide is designed to help businesses learn about the ACL provisions relating to country of origin claims and understand how these provisions operate.
- A business may make any origin claim provided that it is not false or misleading.
- If a business chooses to make a country of origin claim, or is required by law to disclose the country of origin of a good (such as under the Australia New Zealand Food Standards Code or the Commerce (Trade Descriptions) Act 1905), the ACL prohibits the business from making claims that are false or misleading.
- To provide certainty for businesses, the ACL provides ‘safe harbour’ defences for country of origin claims in relation to goods that meet certain criteria. If goods satisfy the criteria for a country of origin safe harbour defence, the business is deemed by s. 255 of the ACL not to have engaged in misleading or deceptive conduct or made a false or misleading representation under ss. 18, 29(1)(a), 29(1)(k), 151(1)(a) or 151(1)(k) of the ACL.
- The safe harbours are designed to provide businesses with certainty about the types of practices that will allow them to safely make country of origin claims without breaching the ACL. Nevertheless, there will be some country of origin claims made by businesses that do not fall within one of the safe harbour defences. Businesses are still entitled to make such claims, provided they are not false or misleading.
- Businesses should have a reasonable basis for making country of origin claims and be able to substantiate their claims if need be. In the event that a country of origin claim is challenged in legal proceedings: (a) It is up to the business to establish that the criteria for a ‘safe harbour’ defence have been met or (b) If a business is unable to establish a ‘safe harbour’ defence, the business’ claim will be assessed against the likelihood it would be regarded as false or misleading or deceptive by ordinary and reasonable consumers.
- The ACL safe harbour tests are not specific to claims of Australian origin, or to particular products. They apply equally to any country of origin (but not region or place of origin) claims and in relation to all products. 4 Country of Origin and the Australian Consumer Law
- Representations that a business may make are not restricted to ‘made in’, ‘produce of’ or ‘grown in’ claims, and may be more detailed or explicit (however, they may not fall within the safe harbour defences).
- Pictorial representations may also be interpreted as country of origin claims, e.g. use of logos, pictures of iconic animals or iconic symbols.
- Products that result from processing in different countries require particular care from businesses when making country of origin claims.
- A ‘Made in Australia from local and imported ingredients’ claim must not be misleading. The provision of extra information beyond ‘Made in Australia’ should clarify the origin of the components and not confuse consumers.
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