A2m vs Lion, page-60

First let’s get away from unfounded emotional statements and look at some facts. They’ll prove important in the court case.

There are quite a few angles on which readers here have been misled by constributors who are blinded by their own wishes. Apologies for the length of this post..

Lion has been selling milk labelled, in large lettering, as “A2 protein”. That’s a fact. A2M says this is misleading. It doesn’t deny Lion’s milk contains any A2. It just says the big label misleads consumers into buying it when they are actually looking for A2 milk as sold by A2M.

This has nothing to do with trademark violation, or even whether a rival company can call its product “A2 Milk” I think it probably can, if it’s really pure A2. I’m not sure whether A2M is even bringing up the trademark issue, but anyway that’s not the crux of its claim.

The case is mainly about the label in huge lettering on Lion’s milk bottles saying “A2 Protein”. What does that tell the consumer? The consumer thinks A2 protein is what the bottle contains. Nothing else.

So how much A2 protein does it actually contain? Well, bugger-all, as it turns out. Milk is generally about 87% water, which is not protein. It also contains about 3.4% fats and 4.9% lactose. The exact figures can vary, but milk typically contains only about 3.2% protein. Of this about 18% is whey, which is not casein and is neither A1 nor A2, so it’s irrelevant. The other 82% of protein is casein and is either A1 or A2. Lion claims 50% to 70% of its protein is A2, so let’s be kind and say 70%. So the amount of A2 protein in the product that Lion sells with a huge label calling it “A2 Protein” actually has only about 0.0183 percent A2 Protein. That’s about one sixtieth. Get that.

If a company sold baking soda in packs with "Baking Soda" in big print on the front but said in the fine print on the back that it contained only one-sixtieth baking soda and the rest was flour, would the manufacturer not expect to be taken to court for misleading and deceptive labelling? That’s the crux of this case. Incidentally, A2M makes no claim as to how much A2 protein is in its own milk, and that’s actually not an issue. The key issue is that there is no A1, the “nasty” that causes problems.

The question here is whether consumers were misled. I’m sure there will be consumers willing to testify to that. It matters not whether anyone thinks these consumers were foolish or misguided in wanting to buy A2 milk. A judge cannot rule that just because there’s some debate about the benefits of A2 milk, consumers can’t expect to get what they are trying to buy. A consumer is entitled to make his or her own decision whether to buy a product or not, even if there is some public debate about it. There has been plenty of information in the marketplace and in the media, not disputed by anyone including Lion, suggesting consumers would be wise to choose A2 milk. The recent clinical trial results are an example. Consumers were therefore fully entitled to make that decision.

So much for consumer deception. Now to the court case itself.

A few contributors have suggested A2M will be forced to prove its own advertising has not been misleading and that its science is 100% solid. I’m not sure how Australian law works, but I fail to see how Lion can simply make a claim and expect A2M to prove it incorrect. That’s not the way courts usually work. It is up to Lion to prove its claim correct with details, not the reverse.

As the judge said at a preliminary hearing, there was no mention of such a challenge in Lion’s initial defence pleadings, and it changes the whole nature of the case. This raises an entirely separate question which would normally have to stand on its own as a separate court action. It has yet to be seen whether the judge will allow it to be consolidated into these proceedings. At this stage it can’t just be assumed that he will.

Even if the judge allowed it as part of the defence in this case it is not up to A2M to disprove such a counter-claim. It is up to Lion to provide specific examples of A2M consumer deception by way of pleadings filed in court in advance, with detailed factual and scientific evidence.

And producing a couple of obscure examples of errant advertising would hardly be very persuasive. There would need to be evidence showing A2M systematically misled consumers on a significant scale. The real onus will be on Lion to prove that.

A2M would then have the opportunity to respond in a variety of ways, which might include producing expert evidence by scientists. That wouldn’t be difficult and would be an opportunity for the company to publicise a lot of information that it’s normally restricted from using in its advertising because of the rules against health claims.

This case will be no slam-dunk for Lion, however highly it pays its lawyers.