Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against H.J. Heinz Company Australia Limited for alleged breaches of the Australian Consumer Law (ACL). The ACCC claimed that Heinz made false or misleading representations to consumers about the health benefits of certain products. The case was heard by the Federal Court of Australia. Heinz contested the claims, arguing that the representations were not false or misleading and that the ACCC's claims were not substantiated.

The court had to determine several key issues, including the appropriate application of the course of conduct principle in assessing the contraventions of the ACL, the aggregate of penalties where multiple contraventions occurred, and the necessity of a corrective publication order given the length of time since the contraventions. The court also had to consider whether an order for a compliance program was appropriate in the circumstances. The court needed to weigh these issues to decide on the appropriate remedies and penalties.

The Federal Court found that Heinz had contravened section 29(1)(g) of the ACL by making misleading representations to consumers. The court determined that a pecuniary penalty of $2.25 million was appropriate, taking into account the course of conduct principle and the aggregate of penalties for multiple contraventions. The court held that a corrective publication order was not necessary due to the significant passage of time since the contraventions. However, the court considered it appropriate to order Heinz to establish and maintain a Consumer Protection Law Compliance Program to prevent future breaches. The court also ruled that Heinz should bear the ACCC’s costs of and incidental to the proceedings, including reserved costs, on a party and party basis, given that the ACCC had acted in the public interest in initiating the proceedings.

The court's final orders included a pecuniary penalty payment by Heinz, the establishment of a Consumer Protection Law Compliance Program, and the refusal of the ACCC’s claim for a corrective publication order. Heinz was also ordered to pay the ACCC's costs on a party and party basis. These orders reflect the court's balanced approach to consumer law enforcement, ensuring penalties are proportionate and appropriate while promoting compliance and deterrence.