Lewin v Purity Soft Drinks Ltd.

When deciding whether goods were supplied under a false or misleading trade description, magistrates may consider the label and evidence as a whole. They are not required to place individual words, ingredients lists and other information into separate compartments. A mandatory ingredients list which positively supplies accurate information is not necessarily a disclaimer requiring exceptional prominence. Under section 3(2) of the Trade Descriptions Act 1968, the question is whether the description is likely to be taken as a materially false indication. The test concerns what a reasonable consumer could understand, assessed as likelihood rather than mere conceivability. A finding that a word qualifies a description must be supported by evidence that consumers would understand it in that way.

The claimant appealed by way of case stated against the acquittal of the defendant by magistrates. The informations alleged that bottles of blackcurrant and cranberry drinks had been supplied under false trade descriptions contrary to the Trade Descriptions Act 1968. The labels prominently used the words “blackcurrant juice” or “cranberry juice”, included the word “Burst”, and gave the actual fruit-juice percentages in an ingredients list.

The magistrates found that “Burst” formed part of the description, but also held that the descriptions were not false or misleading when the labels were read as a whole. The central issues were whether the word “Burst” qualified the descriptions, whether the ingredients list could be considered, and what test applied to misleading descriptions.

1. The appeal was dismissed in substance. The respondent’s lawful acquittal was upheld. The court declined to answer the stated questions because its conclusions made that unnecessary.
2. The magistrates were entitled to determine the trade description and to find that “Burst” formed part of it. However, their conclusion that “Burst” signified that the drinks were not pure juice was unsupported by evidence that the public would understand the word in that way. That part of their reasoning could not stand.
3. Nevertheless, the magistrates were entitled to consider the label and evidence as a whole when deciding whether the goods had been supplied under a false description. The court applied the approach in R v Hammertons Cars Ltd [1976] 1 WLR 1243. The label did not have to be divided into watertight compartments.
4. The ingredients list was not a disclaimer of the kind considered in Norman v Bennett [1974] 1 WLR 1229. It was required by the Food Labelling Regulations 1996 and positively supplied accurate information about the contents. The magistrates were therefore entitled to rely on it in finding that the descriptions were not false.
5. For section 3(2), the statutory question is one of likelihood, not mere conceivability. The issue is whether a reasonable consumer could be misled in the relevant sense. The magistrates applied that approach, consistently with the reasoning adopted in Dixons Ltd v Barnett [1998] 153 JP 268, and their factual conclusion was open to them.
6. The magistrates were also entitled to proceed on the agreed basis that blackcurrants and cranberries are bitter fruits and that consumers would know this. The court declined to decide the separate issue concerning the relationship between the harmonised labelling legislation and the 1968 Act.
7. The respondent received its costs out of central funds. There was no order as to costs in the earlier judicial review proceedings.

• High Court (Administrative Court) — The Divisional Court upheld the magistrates’ acquittal and declined to answer the stated questions.
• Magistrates’ Court — The magistrates dismissed two informations alleging offences under the Trade Descriptions Act 1968.