A company that makes fish oil capsules out of ingredients shipped from Chile, China, and Indonesia has lost a court bid to label the product "Made in Australia", partly because people who swallow the tablets might suffer from "unpleasant fishy burping".
I realise this sounds ridiculous. But it is a real decision in the Australian Federal Court, handed down on Monday.
The company Nature's Care Manufacture can no longer say its "Fish Oil + Vitamin D" capsules were made in Australia, after Justice Nye Perram ruled that the capsules were not really all that different from the raw materials that were imported into Australia to make them.
As part of the case, the judge smelled a fish oil sample and ruled that it was "unpleasant" and like a cross between "stale fish and vinyl".
How did we arrive at this unfortunate burping and judicial fish oil smelling situation?
Since 2012, Nature's Care fish oil capsules, sold under the brand name Healthy Care Australia, have proudly sported the "Australian Made And Owned" label.
The label is regulated by the Australian Made Campaign (a not-for-profit organisation set up by the national, state, and territory chambers of commerce in 1999) and looks like this:
But! The Australian Made Campaign told Nature's Care it had to stop using the label from Dec. 31, 2018, because it no longer accepted the capsules were actually made in Australia.
Perram described the capsules as "quite cosmopolitan" in their makeup: the fish oil is imported from Chile; the vitamin D from China; and the soft gel capsules formed out of gelatine sheets made from gelatine powder, purified water, and glycerol. The glycerol is imported from Indonesia, but the water and powder comes from Australia.
In Australia, these ingredients are made into the capsules.
But under the law, Nature's Care had to show the goods were "last substantially transformed" in Australia in order to keep using the label. This test requires goods to be "fundamentally different in identity, nature or essential character" from the imported ingredients.
This all gave rise to a weird and sort of philosophical question — what, really, is the difference between a barrel of fish oil and of vitamin D and of glycerol, and a fish oil capsule?
One way of considering this question is by smelling, Perram found. Here is what he wrote about how much he dislikes the smell of fish oil:
I find that the fish oil imported from Chile smells unpleasant. I was provided with a sample of this fish oil as Exhibit MX-3 and have smelt it. It is smells like a cross between stale fish and vinyl. My associate thinks it smells like semi-fermented grass cuttings revealing his more sophisticated nose. I have not tasted it but I am prepared to infer that it would be very unpleasant to consume even in small doses. I also accept that placing the fish oil in the soft-gel capsules has the effect of making palatable and flavourless a product which is essentially very unpleasant.
The case also heard evidence on the terrible phenomenon of "burp back". Again, I'll leave you with Perram:
Once the capsule descends into the digestive depths of the stomach the soft-gel dissolves releasing its noxious payload the odour of which, thus liberated, rises up the gullet to the mouth where, unsought and unwelcome, it presents itself as a salutary warning against the perils of belching. Professor Barrow succinctly described it as "unpleasant fishy burping".
Sure, it's socially awkward — but why is this important?
Because, Perram said, it shows that it is not entirely correct to say that the capsules change the fish oil so much that it gets rid of the odour. The odour can emerge if a person burps, or if you deliberately extract the oil from the capsule.
He accepted the argument that the vitamin D in the capsules is different from the imported vitamin D because "the dose within each capsule is minute and a consumer would not be able to administer a dose of 5µg [micrograms] without special equipment".
But this was not the case for the fish oil: "I do not think that there would be any particular difficulties in administering an equivalent dose of the fish oil to that contained in a capsule if all one had was the 200kg barrel of fish oil imported from Chile. A teaspoon would suffice for that enterprise."
Perram eventually found there are five main differences between the capsules and the raw ingredients: the fish oil and vitamin D are mixed together (with no chemical change); the capsules generally — but not always — conceal the bad flavour of the fish oil; the capsules easily provide a small dose of vitamin D3; the capsules slow the fish oil from degrading; and the capsules are made from gelatine sheets.
None of this means that the capsules are "fundamentally different" to the fish oil or vitamin D, Perram ruled.
"Far from it," he said. "What was imported from Chile and China was fish oil and vitamin D3. What is being sold is as is what is being marketed, that is capsules containing 'Fish oil and vitamin D'."
As for the glycerol, Perram accepted the final capsule product was "fundamentally different" from the glycerol liquid in a drum imported from Indonesia, but said the ingredient did not play a "significant" role.
"Granted that the glycerol has been substantially altered, I do not accept that, overall, the capsules are fundamentally different in their nature identity or essential character from the fish oil, vitamin D3 and glycerol imported into Australia."