The a2 Milk Company’s long-running claim that its A2 protein-only product helps consumers “feel better” and lessen digestive discomfort is set to be tested in court for the first time.
The court battle between a2 and Lion Group, which owns milk brands Pura and Dairy Farmers, was originally going to focus on the right to use the term “A2 protein” on labels.
But in the Federal Court on Tuesday, the defendant Lion said as well as protecting its “Naturally contains A2 protein” claim, it was planning to scrutinise the science behind a2’s health-related claims.
Justice Michael Wigney said such a cross claim would be a “game changer”.
“It does seem to be a game changer, because as I read the pleadings … there didn’t seem to be any issues about science,” he said.
In its statement of claim, a2 accused Lion, owned by Japanese brewing giant Kirin, of engaging in misleading and deceptive conduct by making A2 protein claims that led consumers to think their products were “the same or similar”.
Lion’s products contain both A1 and A2 proteins.
In court, a2’s senior counsel Cameron Moore said the A1 protein, which its products do not contain, “is associated with some difficulties for some consumers, producing digestive discomfort and bloating and so on”.
The latest figures show, riding on the success of its claim, a2 has been able to snatch 10 per cent of Australia’s fresh milk market, despite its relatively high price tag.
Lion, feeling the squeeze, hit back with new labels with A2 protein claims. On the back label, in small writing, it discloses that its milk “contains A2 protein, as well as A1 protein. Of those proteins, our tests to date confirm that 50 to 70 per cent is A2”.
Mr Moore said Lion was misleading consumers because the Pura and Dairy Farmers-branded milk contain both A1 and A2 proteins, like all conventional milk.
Acting for Lion, David Catterns QC said it had “conducted scientific studies to establish the amount of A2 protein in the milk… and made a truthful statement”.
He added: “a2 promotes the milk as having certain health benefits and we’re looking into the basis of those health benefits and talking to experts”.
On behalf of a2, Mr Moore said the new “attack” could lead to a “much bigger case in terms of expert evidence … slower and far more detailed”.
a2 is seeking an injunction permanently refraining Lion from using its labels, as well as damages.
The next hearing is scheduled for mid-September.