KENYA – International beverage manufacturer Coca-Cola has been ordered to place labels on nutrition value and customer contacts on its soft-drink glass bottles by the Court of Appeal in Kenya, upholding the directive given by the High Court five year’s ago.
The three-judge bench of Hannah Okwengu, Dr. Imaana Laibuta, and John Mativo unanimously agreed that it was discriminatory for the firm to indicate the nutritional value of its products on plastic bottles but leave out those on glass ones.
Coca-Cola Beverages Kenya (formerly Nairobi Bottlers Limited) had filed an appeal, arguing that it does not owe the consumers of their products an obligation to provide them with nutritional information, storage, and contact information as held by the High Court in 2018.
In its appeal, Coca-Cola subsidiary Nairobi Bottlers Ltd faulted late Justice Joseph Onguto’s ruling, saying that he ended up legislating in his judgment.
The case was filed by Mr. Mark Ndumia Ndung’u to the High Court explaining that the missing nutritional information was essential to enable consumers to know the benefits derived from the consumption of the beverages.
Mr. Ndung’u, who said in his filing that he had stopped taking soda four years before the case owing to a doctor’s recommendation after suffering from ulcers also argued that the e-mail address and phone numbers were essential to enable consumers to give feedback, make inquiries and complaints, and obtain optimum benefit from the said products.
However, Coca-Cola stated the requirement to provide nutritional value was not binding as it was a distributor, noting Mr. Ndung’u that had skipped lodging a complaint before the Kenya Consumers Protection Advisory Committee.
The firm further argued that the judge did not consider its evidence that there was no proof that sodas were contributors to non-communicable and nutrition-related diseases.
Nonetheless, the Court of Appeal said the case concerned the Bill of Rights and was properly before the High Court, stating that Coca-Cola owes its consumers a right to information on what they are taking, the company’s customer care contacts, and the storage process.
“On the contrary, we find and hold that the 1st respondent (Mr. Ndung’u) demonstrated to the required standard that the said omission offended Article 46 and the Consumer Protection Act,” Justices Hannah Okwengu, Dr Imaana Laibuta and John Mativo ruled.
It was a blow to Nairobi Bottlers Limited and Coca-Cola Central, East and West Africa which were defending that the beverage brands in Kenya complied with the food labeling requirements under the Food, Drugs and Chemical Substances Act.
In the decision-making, the court also directed that the differential treatment of the consumers of Coca-Cola products in plastic and glass bottles is not justifiable.
“The differential treatment of the consumers of Coca-Cola products in glass bottles deprives them of the constitutionally guaranteed right to be aware of the nutritional information of their preferred beverage. It deprives them access to customer care if needed in case they have a complaint they wish to raise,” Justice Okwengu ruled.
The judge explained that it literally means that if a consumer has low purchasing power and can only afford the Coca-Cola product packaged in glass bottles, then because of his financial position, he is not entitled to the information supplied in the other similar product, but in a different package.
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