SELLERS AND SUPPLIERS BE WARE; BREAKING DOWN THE COURT OF APPEAL JUDGMENT IN “Nairobi Bottlers Limited v Mark Ndumia Ndung’u and another (Civil Appeal No 99 of 2018) [2023] (7 July 2023) (Judgment)”
By a judgment delivered on 7th July 2023, the Court of Appeal dismissed an appeal by Nairobi Bottlers against a Judgment of the High Court (the late Louis Onguto J) where it was held that failure to display detailed nutritional information and storage instructions on glass soda bottles violated consumer rights under article 46 of the Constitution. The Court of Appeal similarly upheld the High Court’s finding that the display of nutritional and storage information on plastic bottles and not on glass bottles amounted to discrimination of consumers of glass bottled soda. The Court further dismissed a defence by Nairobi Bottlers that it was not a manufacture but simply a marketer hence it had no duty to provide any consumer information. The court reasoned that since Nairobi Bottlers had admitted it was a business unit of the manufacturer, it was bound to comply with the provisions of the Article 46 of the Constitution as well as the Consumer Protection Act. Critically, the Court of Appeal upheld the High Court’s finding that even the information displayed on the plastic bottles was insufficient as it did not meet the threshold in article 46 of the Consitution even though it complied Standards Act and the Food Drugs and Chemical Substances Act.
The facts in summary are that by way of a Petition at the High Court, Mark Ndumia alleged that he had discovered disparity in the labelling between cocacola sodas in glass bottles and plastic bottles. Mark contended that as a consumer of coca cola sodas in glass bottles, he had no information on the nutritional properties of the soda necessary for him to gain full benefit from the consumption of the soda. Neither did the glass bottles provide storage instructions nor any contact information should a consumer have any inquiry. Mark further argued that it was discriminatory for plastic soda bottles to bear information unlike the glass bottles. He sought a declaration that the failure to display full nutritional information and storage instructions on glass bottles violated consumer rights under article 46 of the Constitution while the failure to provide any information at all was discriminatory on users of the later.
The Respondents opposed the Petition on among other grounds that the failure to label glass soda bottles was informed by commercial considerations and the difference in price and that this did not violate the rights of consumers as they had the option of purchasing the plastic bottles. As regards labelling plastic bottles, they contended that the information they displayed in the plastic bottles complied with the provisions of the Standards Act and the Food Drugs and Chemical Substances Act and regulations.
Having heard the parties, the High Court and Court of Appeal concurred with the Petitioner that the failure to label glass bottles violated consumer right to information on produces under article 46. It was further held that whereas the Respondent’s had adhered to other statutes governing the labelling of products, the labelling did not meet the threshold set in Article 46 of the Constitution and the Consumer Protection Act. The superior courts were of the view that any supplier of goods to a consumer as defined under the Consumer Protection Act needed at the minimum to provide label information about nutrients in conformity with Article 46(1) (b) which guarantees a consumer the right to the information necessary for a consumer to gain full benefit from the goods and services. In the court’s view, in the minimum, the nutrition labelling should- (a) provide consumers with nutrition information about the food product; (b) enable consumers to compare the nutritional quality of products from the same food group; (c) enable consumers to choose among products from different food groups based on nutritional quality; (d) prevent or reduce consumer deception by providing information about the nutrient composition of the product; e) provide incentives to improve food products by requiring manufacturers to describe fully the ingredients and nutrient value of their products. Storage information, preparation and handling of food product is important and should be availed to the consumers.
The take away from this decision is in three parts. First, there is a constitutional threshold detailed above for labelling products which is beyond the Standards Act as well as the Food, Drugs and Chemical Substances Act and regulations. A supplier must surmount this threshold for all the products they sell. Secondly, labelling information should be done for uniformly for all products notwithstanding the quantity or size. Third, the obligation to label products applies to manufacturers, their subsidiaries and other business representatives who may not be manufacturers unless there is clear separate legal personality from the manufacturer and exclusion from liability for defects in favour of a supplier.
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