The Public Ministry of Santa Catarina (MP-SC) managed to reverse a court decision and the sale of Del Valle Fresh products was once again prohibited in the state. The company that manufactures the product, Coca Cola Indústria Ltda., had managed to suspend the administrative decision of Procon in court, but MP-SC appealed and reversed the preliminary injunction.
Procon maintains that the product does not have minimum percentages of fruit or juice to be considered juice, nectar, soft drink or even soda and that the packaging does not provide clear information to consumers. The measure prohibits the sale of Del Valle Fresh products throughout Santa Catarina until the labels are adapted.
The injunction that had been won by Coca Cola Indústria Ltda. argued that the ingestion of the product is not harmful to consumers. The industry’s defense considered the Procon act illegal, since the purpose of the administrative precautionary measure is not the imposition of a sanction, but the preservation of certain rights.
In addition, in the defense’s view, there was no urgency for the execution of the measure, as the product has been marketed for more than ten years.
Return of the suspension of the sale
As for the Public Ministry, the administrative measure applied by Procon was correct and within the law. The MP-SC pointed out that the action is supported by the Consumer Protection Code (CDC) and decree n. 2,181/1997. Both provide for the suspension of the supply of products or services, including as a precautionary measure, before or during an administrative procedure.
For the prosecutor Wilson Paulo Mendonça Neto “the precautionary measure of suspension of supply, distribution and sale of products from the Del Valle Fresh line, until the product labels are corrected, is justified in the preservation of two basic rights of consumers , adequate and clear information about the different products and protection against misleading advertising”.
Neither juice nor soda
According to Procon, the measure was taken because Del Valle Fresh products do not have minimum percentages of fruit or juice defined by law to be considered juice, nectar or soft drink or even soda. The drink has only between 1.0% and 1.3% concentrated juice.
This information appears on the products, but on the side of the label and in small print. On the packaging it is written that it is a “food” of a certain flavor, containing synthetic flavoring identical to the natural one and artificially colored.
Thus, Procon determined the suspension of the supply, distribution and sale of Valle Fresh products until the product labels are corrected, in order to clearly inform the characteristics, qualities and properties of the products.
For the prosecutor, the continued sale of the product would cause several consumers to purchase an unwanted ultra-processed product with only 1% concentrated juice, when they think they are purchasing juice, nectar or soft drink, which have their own recommendations, especially regarding the amount of concentrated juice.
In view of the facts and arguments of the 29th Prosecutor’s Office, judge Cid Jose Goulart Junior granted the precautionary measure required by the MP-SC and, with that, the sale of Del Valle Fresh products was once again prohibited throughout the state until the adequacy of the labels. The decision is subject to appeal.
At the same time, the Public Prosecutor’s Office also opened a civil inquiry based on Procon’s representation. The action aims to investigate the alleged practice of misleading advertising by the company in relation to the products of the Del Valle Fresh line.
As part of the civil investigation, the prosecutor sent a letter to the company requesting information on the labeling of products in the Del Valle Fresh line; advertising of Del Valle brand products on its website and in other means of dissemination; the reason for not stating on the front of the label that the products of the Del Valle Fresh line refer to a “food with such a flavor” and/or the percentage of concentrated juice, as it appears in the juice and nectar of the same brand; and if the products of the Del Valle Fresh line were withdrawn from the market in any state.
It also sent official letters to the Procons of the Federal District and Rio de Janeiro, information on possible complaints about Del Valle Fresh products made and the measures adopted, and to the Brazilian Institute for Consumer Protection (Idec), requesting a copy of the complaint it made to the Procons of all of Brazil.