It’s been a long time coming. I’ve heard little tidbits, but here’s the latest update from Maurice Blackburn.
Mediation in this class action took place on 23 October 2012. The mediation was unsuccessful and the action did not settle. We will therefore be progressing the procedural steps described below and preparing the class action for trial.
Amendments to claims
Following the mediation, we received instructions to make claims against the two Japanese companies that manufactured and exported Bonsoy to Australia. The two companies are Marusan-ai Co Ltd (manufacturer) and Muso Co Ltd (exporter). Spiral Foods brought these companies into the proceeding, but the plaintiff had not made claims directly against them.
However, after review of discovery it became apparent that there are good claims against the two Japanese companies and that these claims should be made as Spiral Foods may not have adequate insurance to cover damages for the entire class. It also became apparent that the claims made against Spiral Foods can be strengthened.
We have obtained evidence that the iodine problem with Bonsoy occurred when the product was relevantly reformulated in mid-2003 at the insistence of Spiral Foods, in order to enhance its marketing strategy [Ed: my highlighting]. The reformulation involved salt, which was previously added to Bonsoy, being replaced with the kombu extract that was ultimately found to be the source of large amounts of iodine. Spiral Foods, Muso and Marusan-ai, were all involved in and aware of the reformulation of Bonsoy and did not direct their minds to possible risks of the reformulation.
In mid-2006, after a customer expressed concerns about iodine levels in Bonsoy, Bonsoy was tested and was found to have the same iodine levels as ultimately found at the time of the recall (that is 30mg/L). Spiral Foods, Muso and Marusan-ai were all aware of the results, but took no steps to ensure safety of the product.
Further concerns about iodine levels in Bonsoy were expressed to Spiral Foods in 2007 and 2009 and were communicated to Muso and, in 2009, to Marusan-ai, but none of the companies did anything to check whether the product was safe for consumption and dismissed customer concerns.
In light of this evidence, which was not available at the time the action started, we believe there is a strong case against Muso and Marusan-ai, as well as Spiral Foods and will vigorously pursue the action against all three companies.
Further procedural steps
Consequently, on 26 October 2012 we sought and obtained leave from the Court to amend the allegations against Spiral Foods to reflect the matters set out above and also to join the two Japanese companies as defendants and to make direct claims against them.
We are in the process of drafting the relevant documents and will complete this step by 21 December 2012. The three companies will have until the end of February to file their defences to the amended claims.
We will then ask the Court for a speedy trial date. We do not yet know what date the Court will give us for trial, however we hope to obtain a trial date in the second part of next year.
We anticipate updating our clients on the progress of this case in the New Year.
All of this is standard legal procedure, but a few things stand out for me.
Firstly, as highlighted by myself above, this phrase stands out; “in order to enhance its marketing strategy”.
A particularly galling aspect about all this has been Spiral’s attitude toward the recall and people’s health (see some examples of this in the language used in their media releases).
Spiral markets – HARD – the fact that Bonsoy (and their other products) are really healthy. I’ve included a screen grab (current as of Nov 7 2012) from their website where they clearly state this.
Here we have a company replacing sodium with an alternative to maintain the salty taste.
Here’s a company who were notified of consumer concerns regarding the high levels of iodine in their products at least 3 times in 2006, 2007 and 2009.
A responsible company would have taken this seriously and tested the product against WHO recommendations (which Bonsoy exceeded).
Spiral Foods, however, did not do this.
As far as I am concerned they abrogated their duty of care, as did the Japanese companies involved.
It also appears as though this formulation goes back to 2003.
The evidence is pretty damning, I think. And it certainly makes an absolute mockery of Spirals marketing message of safe and healthy products. It is also a damning indictment on the level of seriousness they place upon health and safety of their customers.
So, what next?
My understanding is the case will proceed to trial and a statement of claim will be completed by end of December.
I suspect at that point the full extent of what actually happened, and who knew what, and when will become apparent.
“Can I still join the class action?”
You sure can. Read this post to find out how to join the Bonsoy Class Action.