The a2 Milk Company Limited v Open Country Dairy Limited

The a2 Milk Company Limited (a2 Milk) brought proceedings against Open Country Dairy Limited (Open Country Dairy) in the Federal Court of Australia. The dispute concerned allegations by a2 Milk that Open Country Dairy had engaged in misleading and deceptive conduct in contravention of section 18 of the Australian Consumer Law (ACL). Specifically, a2 Milk alleged that Open Country Dairy had made false or misleading representations about the composition and origin of its milk products, implying they contained only the A2 beta-casein protein, when in fact they contained a mixture of A1 and A2 beta-casein proteins.

The primary legal issue before the court was whether Open Country Dairy's conduct in marketing and selling its milk products constituted misleading or deceptive conduct under the ACL. This required the court to determine whether the representations made by Open Country Dairy, whether express or implied, were likely to mislead or deceive a relevant section of the public regarding the protein composition of its milk. A further issue was whether a2 Milk had established the necessary elements for a contravention of section 18, including the nature of the representations and their likely effect on consumers.

Justice Walters found that Open Country Dairy had engaged in misleading and deceptive conduct. The court reasoned that the marketing materials and product labelling used by Open Country Dairy, when viewed as a whole and in the context of consumer understanding of "a2 milk," were likely to lead consumers to believe that the milk contained only the A2 beta-casein protein. The court applied the established principles for assessing misleading or deceptive conduct under the ACL, focusing on the likely effect of the representations on ordinary members of the purchasing public. The court concluded that the representations were not sufficiently qualified or clarified to avoid misleading consumers who were seeking milk with only the A2 protein.

The court ordered that Open Country Dairy be permanently restrained from engaging in conduct that contravenes section 18 of the ACL in relation to the marketing and sale of its milk products. This included orders preventing Open Country Dairy from representing that its milk contains only the A2 beta-casein protein, or that it is suitable for consumers who can only tolerate A2 protein, unless such representations are true and not misleading.