A recent decision has found Aldi made misleading and deceptive representations about the natural content and performance benefits of its “Moroccan Argan Oil” products.

The Federal Court in Moroccanoil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823 has found that Aldi made misleading representations in relation to its “Moroccan Argan Oil” product range, in contravention of the Australian Consumer Law (“ACL”).

Aldi’s products in question were its “Moroccan Argan Oil” oil treatments, shampoos and conditioners which were sold under Aldi’s “PROTANE®NATURALS” brand.

The case concerned, among other things, claims by Moroccanoil that:

  1. the word “natural” on the packaging of Aldi’s “Moroccan Argan Oil” products (as part of the “Protane” branding), was a representation that the products contained only or substantially natural ingredients and that representation was false; and
  2. Aldi represented that the benefits of its “Moroccan Argan Oil” products were due to the presence of Argan Oil (such as strengthening hair etc.) and that the “performance benefits” were misleading given the minute quantities of Argan Oil in the products.

The Court held that the use of the word “natural” in Aldi’s “Propane Naturals” trade marks amounted to a representation that the products were comprised of substantially “natural” ingredients when the products were in fact made up of predominantly synthetic ingredients.

Aldi asserted (in effect) that the products were natural because of the large amount of water in the products. Her Honour rejected such a notion and stated:

“In my opinion, consumers … would not consider [products] to be natural if water was the only or the predominant natural ingredient. No reasonable consumer, for example, would consider Coca-Cola a drink containing substantially natural ingredients because it has a high water content.”

Whilst her Honour found the representations were not “false” because the product did contain one or more “natural” ingredients (such as water), the representations were misleading, as none of the products would satisfy a relevant industry definition (or a dictionary definition) of “natural”.

The Court also held that Aldi represented to consumers that the Argan Oil in the products made a material contribution to the performance benefits of its products in circumstances where the quantity of Argan Oil actually used in the manufacturing process was so small that it could not make a material contribution to the performance of the products.

As there was no reasonable foundation for the claims, her Honour held that the claims were misleading.

This case demonstrates that:

  1. trade mark holders need to be aware that their trade marks can, in certain circumstances, amount to representations about the products to which the marks are applied; and
  2. you need to be able to back up any claims to the performance of a product with empirical evidence relevant to the content of the product.