Coca-Cola Nigeria Limited (CCNL) has outlined 15 arguments in an appeal against the N186,666,666.67 fine imposed by the Federal Competition and Consumer Protection Commission (FCCPC).
The company insists that the penalty, related to alleged misleading marketing and labelling of its Coca-Cola Original Taste and Less Sugar variants, is unjustified and legally inadequate.
The FCCPC had accused Coca-Cola and its sister company, the Nigerian Bottling Company (NBC), of deceiving consumers by presenting the two drink variants as identical in formulation.
The commission stated that despite regulatory intervention, the companies failed to amend their marketing practices, prompting the fine under Section 116(3) of the Federal Competition and Consumer Protection Act (FCCPA).
Coca-Cola was ordered to remit the penalty by 6 September 2024, a directive the company has contested.
In a notice of appeal filed on 5 September 2024, Coca-Cola challenged the penalty before the Competition and Consumer Protection Tribunal, noting multiple grounds for its opposition.
Grounds for Appeal
The company’s legal counsel, led by Professor Gbolahan Elias SAN, listed 15 key reasons the tribunal should quash the FCCPC’s orders. These include:
- Fair Hearing Violation: Coca-Cola argued that the FCCPC acted as complainant, investigator, prosecutor, and judge, thereby breaching its right to a fair hearing.
- Lack of Jurisdiction: The company claimed the FCCPC lacked the authority to issue and enforce the orders, which it argued should fall under the tribunal’s purview.
- NAFDAC Approval: Coca-Cola emphasised that its product labelling adhered to the standards approved by the National Agency for Food and Drug Administration and Control (NAFDAC).
- Differentiation Efforts: The company stated it had taken steps to distinguish the Original Taste variant from the Less Sugar variant, even after the FCCPC brought up the issue.
- No False Representation: Coca-Cola denied making any misleading or deceptive assertions about the taste, content, or formulation of its products.
- Absence of Unfair Tactics: It argued that it did not use coercion, pressure, or unfair methods in marketing its products.
- No Consumer Complaints: Coca-Cola stated that it had not been shown any consumer complaints about the quality or branding of its products.
- Pricing Allegations Unfounded: The company rejected claims that its pricing model indicated anti-competitive behaviour, noting the FCCPC’s own earlier findings that pricing patterns lacked sufficient evidence of abuse.
- Burden of Written Assurances: Coca-Cola criticised the FCCPC’s demand for “satisfactory written assurances” to prevent further violations as vague and burdensome.
- Abuse of Power: The company accused the FCCPC of overstepping its legal mandate by demanding audited financial statements without legal justification.
- Advertorial Compliance: Coca-Cola claimed it had voluntarily undertaken additional measures to differentiate the variants as a cooperative corporate entity.
- Process Errors: It alleged that the FCCPC’s legal officer, who issued the orders, was not part of the original investigation, violating procedural fairness.
- No Legal Violation: Coca-Cola argued that the alleged breaches mentioned by the FCCPC did not continue after corrective measures were implemented.
- Penalty Excessive: The company described the N186m fine as “outrageous and unjustifiable.”
- Pending Appeal Protections: Coca-Cola maintained that sanctions cannot be enforced until the tribunal resolves the issues raised in the appeal.
Tribunal’s Next Steps
In response to the appeal, the FCCPC has agreed to halt any enforcement actions until the case is decided. The tribunal has scheduled a hearing for 4 February 2025.
