Informations on pasteurised milk advertisement dismissed

Press, 11 October 1986, Page 4

Informations on pasteurised milk advertisement dismissed

The last time “milk” had been delivered to homes or shops in Christchurch was May 31, 1958, a retired man claimed in evidence in the District Court yesterday, in support of his private prosecutions of a newspaper advertising manager over an advertisement lodged by the New Zealand Milk Board. The informant, Paul Robert Harper Maling, who said he was a past executive member of the Christchurch Milk Consumers’ Protection Association, claimed that the Food Regulations made a clear distinction between milk and pasteurised milk. However, Mr Maling failed in his two prosecutions, under provisions of the Food Act, 1981, against Brian Frederick Hastings, advertising manager of “The Press.” After a defended hearing, Judge Frampton dismissed both informations and awarded costs of $lOO on each charge against Mr Maling. Hastings had been charged under provisions

of Section ll(l)(c) of the Food Act, that on March 25 last year he published in “The Press” an advertisement effecting or promoting the sale of pasteurised milk by falsely representing this food, offered for sale, as being milk when it was, in fact, pasteurised milk. The charge alleged that this was contrary to Regulation 105 (2) of the Food Regulations, 1984, requiring that the label on every package of pasteurised milk shall bear, in association with the name “milk,” the word “pasteurised”; and that it also was contrary to Section ll(l)(c) of the Food Act, 1981. The second information arising from the same advertisement, alleged a similar breach in relation to cream being offered for sale, when it was, in fact, pasteurised cream. Mr Maling conducted his own case. The charges were denied by Hastings, who was represented by Mr G. M. Brodie. In his outline of his case, Mr Maling said that it was not permitted to sell milk containing any amount of pasteurised milk; or to sell pasteurised milk which contained milk. Milk was no longer milk if it had been heated, Mr Maling said.

He then gave evidence, saying that on March 18 last year he saw an advertisement in “The Press.” Two days later he telephoned Hastings, who was the advertising manager of “The Press,” and warned him that the advertisement was in breach of the Food Regulations. “I suggested that he hang a notice on his office wall reminding him that it was risky to publish advertisements from the New Zealand Milk Board.” Mr Maling said that, nevertheless, Hastings published the same advertisement on March 25. He telephoned him on March 28 and told him a test case would ensue. Cross-examined, Mr Maling said milk was not being delivered to any household in Christchurch. Mr Brodie suggested this could not be a matter within his own knowledge. The witness said he was a past executive member of the Christchurch Milk Consumers’ Protection Association. These matters were constantly gone into. Asked if he knew whether Hastings had any part to play in placing the advertisement, Mr Maling said that, as advertising manager, he must have

had some part, and these matters were covered in the Food Act, which had a quite wide definition of responsibility. He said Hastings, he thought, claimed responsibility. There was no attempt to disclaim responsibility. Mr Brodie called no defence evidence. He submitted that both charges should fail and said there was no evidence showing that the advertisement was published in “The Press” on March 25. There also was no evidence that Hastings caused or permitted the advertisement to be published. There was a paucity of evidence, and Hastings might not have been in the city at the time. Mr Brodie submitted also that there was no evidence that the milk, the subject of the advertisement, was pasteurised milk. The regulations made reference to four or five different kinds of milk. Mr Maling, in reply, contended that Hastings was responsible for the advertisement under the provisions of the Food Act referring to servants or agents. He said that he knew that the New Zealand Milk Board, which assumed power from the Metropolitan Milk Board many years ago, had never marketed milk or cream.

Therefore, the product referred to in the advertisement as full-cream milk, and cream, must relate to pasteurised milk and cream. The Judge held the charges failed on the lack of evidence that the advertisement appeared on the date alleged; and that Hastings published the advertisement or caused it to be published. There had been no evidence that he was the advertising manager, or the publisher responsible for the advertisement The Judge said also that there was no evidence showing . that the advertisements must refer to pasteurised milk, r ? Seeking costs upon dismissal of the charges, Mr Brodie said Mr Maling seemed to have mounted something of a campaign in taking on “The Press” when “The Press” had nothing to do with the policy the Milk Board adopted. He referred to previous similar prosecutions brought by Mr Maling against the newspaper and its officers, and which had failed. Mr Maling, arguing that no costs should be imposed, submitted the charges had been dismissed on a technical point. He said he believed he had sufficient evidence in bringing the prosecutions, and had acted in good faith.