Fernbrew Pty Limited, trading as D’Aquino Bond Wholesalers and conducting a liquor wholesale business at Orange, in rural NSW, has pleaded guilty to and been fined $15,000 for one charge of misleading food labelling, $15,000 for another charge of selling food which does not comply with a requirement of the Food Standards Code that related to the food, and has been ordered to pay the prosecution’s costs of $80,000.
The offence was to sell as “Old McTavish Scotch Whisky” a drink which only contained 38.6% alcohol.
For many years, much “Scotch” whisky in Australia was reconstituted from concentrate. That is, it was made up with local water from a kind of alcoholic cordial. Obviously, this saved transport costs and on environmental grounds alone would appear to be commendable. The standard alcohol content to which it was made up was 37.5%. Better brands had 40% or more alcohol. Often these were not the locally reconstituted whiskies, but those which had been “Bottled in Scotland.”
This finally changed after a decision of the Administrative Appeals Tribunal in 1994. In the face of evidence that in Scotland whisky must have at least 40% alcohol, and further more exquisite evidence about the effect of alcohol content on the taste of whisky, new standards provided that Scotch sold in Australia must be at least 40% alcohol (just to be on the safe side: ethyl alcohol).
So much so good. The defendant had broken the law and should be punished. It may be that the defendant will be able to seek compensation from whoever supplied this “whisky” to it.
But what really shocked me was paragraph 18 of Justice Studdert’s judgment (emphasis and identification of lawyers’ capacities added):
In the statement of facts recorded, I referred to the seizure of 24½ cartons of the whisky. That liquor has not yet been destroyed but Mr Hodgkinson of Senior Counsel [for the prosecution] informed the Court that destruction was the intended fate for the liquor seized. Mr Temby [for the defence] informed the Court that the defendant was not opposed to the destruction of the liquor. That, it seems to me, is reflective of a responsible attitude by the defendant.
I’ve heard of responsible drinking, but responsible destruction? Unless you take your whisky neat, a very small variation in the quantity of water or other mixer would quickly make the exact percentage of alcohol in the the “whisky” irrelevant, and of course, you could just stop calling it whisky.
I am prepared to assist the authorities and shoulder part of the responsibility for destroying this iniquitous and misleadingly labelled food.