The Federal Competition and Consumer Protection Commission (FCCPC) has urged the Competition and Consumer Protection Tribunal to dismiss Coca-Cola Nigeria Limited’s (CCNL) amended appeal against the N186,666,666.67 penalty imposed for its labelling and marketing practices, among other issues.
This was revealed in the Commission’s written reply to the amended appeal, exclusively seen by Nairametrics
It was previously reported that the FCCPC had imposed a N186 million penalty on CCNL, formally accusing Coca-Cola Nigeria Ltd and its sister company of misleading trade descriptions and employing unfair marketing tactics in their products, Original Taste and Less Sugar.
However, CCNL appealed the Commission’s decision, describing the penalty as “outrageous” and alleging that the FCCPC lacked jurisdiction to impose and enforce such orders.
The company argued that the FCCPC had assumed judicial powers that should be exercised by the tribunal.
In a statement on its official X (formerly Twitter) handle, the FCCPC alleged that Coca-Cola Nigeria Ltd and NBC deceived the public by describing the variant Coca-Cola Original Taste, Less Sugar as identical to Coca-Cola Original Taste in terms of formulation.
“Furthermore, Coca-Cola and NBC, after regulatory intervention, failed to take appropriate steps to address their misleading behaviour. This demonstrates that the companies intentionally misrepresented Coca-Cola Original Taste, Less Sugar as Coca-Cola Original Taste as part of a deliberate business strategy,” the Commission added.
Coca-Cola, through its counsel, Professor Gbolahan Elias SAN, approached the tribunal, citing 15 legal grounds against the FCCPC’s decision.
Among other arguments, CCNL claimed that the FCCPC acted as complainant, investigator, prosecutor, and judge, thereby violating the company’s constitutionally guaranteed right to a fair hearing.
In its formal reply to CCNL’s amended appeal dated October 22, 2024, FCCPC lawyer Abimbola Ojenike raised 13 opposing grounds against the brand’s request to quash the penalty and accusations.
Key Points Raised by FCCPC:
Fair Hearing: The FCCPC argued that Coca-Cola’s claims of procedural unfairness and bias are baseless. It emphasized that the company was provided with extensive opportunities for a fair hearing, including participation in investigations, written submissions, and multiple consultative meetings.
It claimed that Coca-Cola allegedly admitted to regulatory violations and pledged remedial actions but failed to differentiate its Coca-Cola Original from Coca-Cola Less Sugar.
Statutory Powers: The FCCPC maintained that it has the statutory authority to issue and enforce orders, and nothing in Section 6 of the 1999 Constitution invalidates the administrative penalties or directives issued under the FCCPA.
Branding Investigations: The Commission asserted its authority to investigate consumer and competition issues related to misleading branding and labelling practices under several sections of the FCCPA, 2018.
Justifiable Allegations: FCCPC stated that its findings on Coca-Cola’s products are valid, legally justifiable, and supported by evidence in its final investigative report.
Verifiable Findings: The FCCPC maintained that its findings are factual and verifiable, based on due process.
No Conclusive Market Dominance Findings: The Commission denied making any conclusive finding on CCNL’s abuse of market dominance.
Penalty Enforcement: The FCCPC stated that its orders and penalties are legally justified and necessary for effective enforcement.
Request for Financial Statements: The FCCPC defended its request for Coca-Cola’s audited financial statements for 2023, citing statutory provisions.
Evaluation of Implementation Plans: The FCCPC argued that it has the discretion to evaluate CCNL’s communication and implementation plans based on consumer behaviour and experience.
Legally Signed Orders: The FCCPC emphasized that its orders, signed by A. W. Achimugu (Acting Director, Legal Services), are legally valid under the FCCPA and the Evidence Act.
Ongoing Violations: The FCCPC alleged that Coca-Cola is still violating the FCCPA through misleading branding practices, with no evidence to support the company’s claim of compliance.
Acted Within Powers: The FCCPC maintained that its supplementary orders against CCNL are lawful and within its statutory powers.
No Bias: The Commission reiterated that the processes leading to its findings were procedurally fair and unbiased.
While CCNL applied for a private hearing, the FCCPC opposed this request, stating that Coca-Cola failed to demonstrate any exceptional circumstances warranting confidentiality.
The Commission emphasized that the case involves significant public interest and should remain open to the public.
It was earlier reported that the FCCPC undertook not to take regulatory or enforcement action against Coca-Cola Nigeria Ltd pending the determination of its appeal.
The tribunal has adjourned to February 4, 2025, to hear the case.
