Let Them Eat (Underweight) Cake! Supermarkets Incorrectly Advertising Food Weight

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Table of Contents

• Weighty Issues: Advertising Stats and The Offenders
• Above and Beyond! NMI Powers
• Key Takeaways

Having and fun and celebrating went under the knife in 2014 and 2015 with Australian supermarket heavyweights advertising and selling underweight sponge and birthday cakes. People also bought seafood, bread and spices which were significantly under their advertised weight.

The National Measurement Institute (‘NMI’) established under the National Measurement Act 1960 (Cth) (‘Act’) is a division of the Department of Industry, which reports on biological, chemical, legal, physical and trade measurement. Between 2014 and 2015, NMI’s report revealed key culprits selling underweight food. Below, we look at what measures NMI can use to ensure consumers get what they weigh for. 

Weighty Issues: Advertising Stats and The Offenders

Between 2014 and 2015, the NMI had a busy year. It issued:

• 3,962 non-compliance notices (up 13% from the previous year);
• 139 warning letters; and
• 98 fines (totalling $92,650).

For the first time, the NMI referred cases to the Commonwealth Department of Public Prosecutions (CDPP) with four recorded convictions including: 

• Woolworths sold birthday mock cream sponges in a Maroochydore store at 41% of the advertised weight. A Woollies spokesperson said the incident was isolated and stemmed from human error, promising that staff would receive weights training.
• Coles received a fine after using a weighing instrument not tared to zero.
• Santoshi was prosecuted for selling spices with only half the advertised weight.

Coles and Woolworths were each fined $3,000 following their convictions. For the supermarket giants, this is a pittance. Given the fine’s negligible amount, consumers are likely to just trust that supermarkets comply, rather than relying on NMI fines creating any deterrence.

Above and Beyond! NMI Powers

As seen above, the NMI has a number of powers it can utilise to ensure consumers get what they pay for. The NMI can: 

• Conduct trade measurement inspections; 
• Issue infringement notices; 
• Accept written undertakings; and 
• Prosecute. 

While many of the underweight products were off only by a small percentage of grams, supermarkets should be held accountable, and using the best possible methods and technology to ensure they aren’t taking advantage of consumers. 

Trade Measurement Inspectors 

Under section 18MDA of the Act, a trade measurement inspector can visit a supermarket and inspect products available for sale, purchase an item and collect written information about products.

Infringement Notices 

Under section 18LF, if a trade measurement inspector has reasonable grounds to believe that a person has contravened a provision of the Act, the inspector can provide an infringement notice.

Injunctions and Undertakings 

Under section 18LM(1), the secretary may accept a written undertaking from a person in relation to trade measurement issues. Under section 18LO, if a person has engaged (or proposes to engage) in conduct that is in contravention of the Act, the Federal Court can grant an injunction.

Key Takeaways

The NMI is Australia’s peak measurement body, responsible for ensuring measurement instruments and practices used in trade are compliant with Australian standards. The NMI’s trade inspections between 2014 and 2015 resulted in just over $92,000 in fines and four convictions, demonstrating that the NMI has teeth (albeit baby teeth).

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