The Court of Appeal at Nairobi in Nairobi Bottlers Limited v Ndung’u & another held that suppliers, particularly of food and beverage products, are legally obligated under Kenyan consumer protection laws to furnish consumers with information on the nutritional content of the product, storage directions and contact information for customer care.

Background

The claim was initially instituted by Mark Ndumia Ndung’u (1^st Respondent) against Nairobi Bottlers Limited (Appellant) and Coca-Cola Central, East and West Africa Limited (2^nd Respondent). According to the 1^st Respondent, there was a disparity between the information printed on the labels of the glass soda bottles and the plastic bottles containing Coca-Cola, Krest, Fanta, Sprite and Stoney beverages. Specifically, unlike the plastic bottles of these beverages, the glass bottles did not have information on the nutritional content of the beverages, customer service telephone numbers and email addresses as well as storage directions.  The 1^st Respondent also claimed that the disparity in the information provided in the glass and plastic bottles amounted to consumer discrimination. In this regard, the 1^st Respondent accused the Appellant and the 2^nd Respondent of violating Articles 46, 35 and 27 of the Constitution of Kenya (Constitution).

On 30 January 2018, the High Court, Constitutional and Human Rights Division held that:

• suppliers of the beverages have an obligation to provide consumers with nutritional information on their beverages to enable consumers to gain the full benefit from the beverages;
• information on the safe storage, preparation and handling of food products is of critical importance and must be provided by suppliers on the food label; and
• the difference in consumer information provided in the plastic bottles and the glass bottles was discriminatory, unconstitutional and unlawful as consumers of the beverages in the glass bottles are denied the benefit of adequate nutritional and storage information and consumer contact addresses.

The Appellant appealed the decision and, together with the 2^nd Respondent, argued that:

• the High Court had erred in its decision as the Constitution does not specifically reference the type of information to be provided to consumers;
• the Consumer Protection Act only mandates a supplier to provide clear and comprehensible information that conforms with the Standards Act and delivered in a form that can be understood by a consumer;
• the Standards Act, as well as the Food, Drugs and Chemical Substances Act (and their corresponding regulations), do not provide for mandatory nutritional labelling or the provision of an e-mail or phone address to consumers; and
• the difference in information on the packaging of the plastic and glass bottles was not discriminatory, as both the plastic and the glass bottles were available and accessible to all consumers, so they had a choice to opt for either.

Findings

The Court of Appeal held that the obligations placed on the Appellant and the 2^nd Respondent to provide nutritional information, customer care e-mail addresses and telephone numbers as well as storage directions was grounded on Article 46(1)(a), (b)and (c) of the Constitution. These provisions guarantee consumers the right to; (i) products of reasonable quality; (ii) information necessary for them to gain full benefit from goods and services; and (iii) protection of their health, safety, and economic interests.  In light of this, the omission was a contravention of Article 46 and the Consumer Protection Act.

The Court further established that the omission of the product information on the packaging of the glass bottles deprived consumers of their constitutionally guaranteed right to be aware of the nutritional information and storage directions of their preferred beverage. Additionally, it denied consumers access to customer care if needed. To this end, the omission also amounted to unfair discrimination which was a violation of Article 27(5) of the Constitution.

Accordingly, the appeal was set aside due to lack of merit and the judgement of the High Court was upheld.

The implication of the decision on suppliers and manufacturers

This decision develops the jurisprudence on consumer protection in Kenya, particularly in relation to product labelling.  Before the Court of Appeal decision, the consumer protection laws did not confer suppliers with the obligation to disclose any specific kind of information. The decision vests on suppliers the duty to reduce the information gap between suppliers and consumers by setting out in their product labels the nutritional information of the product, storage directions and customer service contact information. Additionally, suppliers are mandated to provide this information in the packaging of all  their products to avoid excluding certain customers.

In this regard, suppliers should pay close attention to their packaging to ensure compliance with the product labelling requirements.