The case, centering on product labels that claim certain Nature’s Care vitamins are Australian made, now names as the respondent the not-for-profit company Australian Made Campaign Limited.

But the ACCC has won leave to intervene in the case pursuant to the Competition and Consumer Act, according to an order last week by Federal Court Justice Nye Perram. The consumer protection case will be heard at a one-day trial on November 15.

The ACCC last month filed notice of a constitutional matter in the case last month, when it argued at a case management hearing that it had been wrongly named as a defendant.

Nature’s Care filed the action on September 4, after the ACCC notified the company that healthcare products that were made in Australia by merely combining two or more imported ingredients into a capsule form would fail the “transformation test” and were “unlikely” to be eligible to use the ‘Made in Australia’ logo. The test requires the final product to contain a change to its “identity, nature, or essential character” from the raw ingredients.

The case centres on Nature’s Care Fish Oil and Vitamin D3 tablets, marketed under the Healthy Care brand. The company says the mixed product is “fundamentally different” from the raw ingredients. It claims that it will lose a competitive advantage and incur significant costs if its products are stripped of the logo.

ACCC barrister Craig Lenehan told Judge Perram at a hearing on September 14 that the watchdog had not offered an opinion to the company about the product at issue but instead had given “general advice” via a publicly available report on country-of-origin labelling, as well as a generic letter sent to the company and a large number of other manufacturers.

The real dispute, Lenehan said, was between Nature’s Care and AMCL – a public company established by the Australian Chamber of Commerce & Industry and empowered by the Federal Government to administer and manage the code of practice and licencing rules behind the Australian-made logo.

Under AMCL rules, products can use the Australia-made logo only if they are “substantially transformed” in Australia. “That is the operative decision that has been made. It’s been made by an entirely different entity; not my client,” Lenehan said.

Nature’s Care barrister Stephen Free said at the hearing the AMCL merely followed rules laid out by the ACCC, which had “gone public” with its guidelines about healthcare goods. It was the ACCC that said products like Nature’s Care’s disputed fish oil and vitamin D capsules did not meet the transformation test, Free said.

“That’s at the core of the real controversy, which makes it a controversy between us and the ACCC,” he had told the court.

Nature’s Care is represented by McLachlan Thorpe Partners.

The case is Nature’s Care Manufacture Pty Ltd ACN 059 975 834 v Australian Competition and Consumer Commission.