Biologi’s Bf & Bk serums contain no Vitamin C – Court Orders prove it!

The recent decision of the Federal Court of Australia Native Extracts Pty Ltd v Plant Extracts Pty Ltd [2023] FCA 1265 where final declarations and orders were made against Mr Ross Macdougald (Macdougald), Plant Extracts Pty Ltd ACN 613 551 349 (Plant Extracts) and skincare brand Biologi Pty Ltd ACN 618 697 297 (Biologi) sheds light sheds light on the contents of certain of Biologi’s skincare products.

Despite the finality and legal clarity of the orders (Court Orders) there appears to be some confusion about what they mean.   The Court Orders which are final, declared and ordered that various representations (discussed below) made by Macdougald, Plant Extracts and Biologi in relation to their products on their websites, on social media and on various third party websites were false and misleading and amounted to misleading and deceptive conduct.

So what do the Court Orders prove that Biologi’s Bf and Bk serums actually contain?

The independent expert evidence of Melissa Fitzgerald B.Sc(Hons).,Ph.D Professor, Food Science and Technology, University of Queensland which was not disputed by Macdougald, Plant Extracts or Biologi and accepted by the Court in full, show that each of the Bf serum and Bk serum contain:Biologi Bk NO Vitamin C

Note that the contents of the bottle do not add up to 100% because of differences between the samples tested by Professor Fitzgerald.

Biologi no vitamin c

The expert report of Professor Fitzgerald’s stated at the bottom of pages 12 and 13 that:

  • The product Rejuvenation Eye Serum (BK) contains no detectable Vitamin C;
  • The product Hydration Body Serum (BF) contains no detectable Vitamin C;
  • Every product contains:
    • an average of 83% ± 9 of glycerol;
    • sodium, likely to be sodium benzoate at 0.02%;
    • a suspected colourant; and
    • an average of 21.3% ± 1.8 water.
  • Therefore, it is clear that:
    • the plant compounds are diluted with both glycerol and water and potentially a colourant;
    • the extract is not a single ingredient but contains glycerol, water, sodium benzoate and potentially a colourant;
    • it is possible that the sample is not ‘pure plant’ if the source of glycerol is from animals; and
    • the sodium concentration is ten-fold more dilute than the claim suggesting a dilution error with the addition of sodium benzoate.

For clarity Biologi’s:

“Bf Rejuvenation Eye Serum contains no vitamin c”; and the

“Bk Rejuvenation Eye Serum also contains no vitamin c”

Could Professor Fitzgerald PhD be wrong and the Bf and Bk serums actually contain ascorbic acid?

Professor Fitzgerald PhD, one of Australia’s leading experts in this field, stated clearly in Appendix 2 of her expert report that:

“Vitamin C and ascorbic acid are synonyms”.

What statements about Biologi’s skincare products were held by the Court to be false?

The statements being made by Macdougald and Biologi that the Court declared are are false and misleading and Macdougald, Plant Extracts and Biologi are permanently restrained from making that are relevant to the Bf and Bk serums are summarised below:

  • False Vitamin C representations
    • Since 2018 – Biologi represented that its Bk an Bf serums contained Vitamin C or high levels of Vitamin C;
    • The Court Orders state at paragraph 10 that the Bk Rejuvenating Eye Serum and Bk Hydration Body Serum do not contain any Vitamin C at all.
  • Statements that the Court Orders permanently restrain Macdougald, Plant Extracts and Biologi from making
    • Vitamin C representations

      • That Bk Rejuvenating Eye Serum (made from Kakadu Plum) contain high levels of vitamin C (or any vitamin c); and
      • That Biologi’s Bf Hydration Body Serum (made from Finger Lime) contains vitamin C; and
      • The packaging on the Bk or Bf that says it contains Vitamin C;
      • Calling Biologi Bk Face & Eye Vitamin C Serum a Vitamin C serum – because it does not contain Vitamin C at all;
      • Statements that the Bf or Bk contain a certain percent of Vitamin C; and
      • Biologi serums contain the highest levels of Vitamin C in the world.;
      • Biologi Bk Vitamin C Face & Eye Serum has been developed for the eye and face. It contains Vitamin C to help with the signs of fine lines and wrinkles, dark circles, pigmentation and sun damage.[1]
    • False Pure Plant Representations
      • Biologi’s had been representing in its promotional material in relation to each of its skin care products on in social media channels that they contain:
        • only one ingredient;
        • are pure plant;
        • they do not contain any additives; and
        • are not diluted.
      • Paragraph 11 of the Court Orders, supported by the uncontested expert evidence of Professor Melissa Fitzgerald has declared that all these statements are false.
      • The Court Orders permanently restrain Macdougald and Biologi from making these statements about their skincare products. If they continue to say these things they would be in breach of the Court Orders.
    • Statements that the Court Orders declare are false and can no longer be made
      • Examples of false and misleading statements that the Court has permanently restrained Macdougald and Biologi from making that its skincare products are pure plant:
        • Biologi Serums are 100% active[2];
        • The Luminosity Face Serum (Davidson Plum), Hydration Body Serum (Finger Lime) and Rejuvenation Eye Serum (Kakadu Plum) are 100 percent organic plant serums…”
        • You won’t find one additive, any fragrances, perservatives or even water;
        • 100% active single ingredient;
        • As the world’s first single plant ingredient skincare range – packed with vitamin C; and
        • No additives, fragrances, or even water, just pure plant extracts.[3]
      • In summary paragraph 11 of Court Orders permanently restrain Macdougald and Biologi from making statements about Biologi’s skin care products that they are:
        • pure plant;
        • contain only one ingredient;
        • are not diluted, and
        • do not contain an additives.

For some in the cosmetics industry the above may come as a shock, however these Court Orders are final.  Justice Downes declared and ordered that the Bf and Bk do not contain vitamin c, are not pure plant, are diluted and do contain additives.

Watch what A Current Affair said about this case:

 The full decision and the orders made by the Federal Court against Biologi

Read the full judgement of the Federal Court and the complete list of corrective notices that Plant Extracts and Biologi have been ordered to publish here:

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1265

Links and further references

Recent media coverage about this decision against Ross Macdougald and Biologi

Other links

Related articles by Dundas Lawyers

Greenwashing: the ACCC’s new priority

What are the ACCC’s 2023/2024 Enforcement Priorities

Legislation

Competition and Consumer Act 2010 (Cth) – Schedule 2.

Competition and Consumer Act 2010 (Cth).

Competition and Consumer Regulations 2010 (Cth).
See this matter on the Federal Court website at: QUD215/2020  – where it can be seen which document was filed by which of the parties to the proceedings over the three (3) years since this matter commenced.

Cases involving Biologi

Native Extracts Pty Ltd v Plant Extracts Pty Ltd [2023] FCA 1265

References

[1] Nourished Life website promoting the Bk Serum accessed on 29 November 2023 at https://www.nourishedlife.com.au/natural-eye-cream/1785617/biologi-bk-vitamin-face-eye-serum.html

[2] Paragraph 19 of the Judgement https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1265, page 12 of the  Expert Report of Professor Melissa Fitzgerald says that the Biologi Serums were on average 83% glycerol, 23% water, a suspected colourant and sodium benzoate, so they cannot be “Pure Plant”,

[3] The Facialist website accessed at https://thefacialist.co.nz/collections/biologi on 28 November 2023.

Further information

If your business needs advice on whether the actions of one or more competitors are false and misleading or misleading and deceptive in breach of the Australian Consumer Law, or if your business needs an “Unfair Competition Review” call me for a confidential and obligation free and discussion:

Malcolm Burrows Lawyer

 

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 (Preferred)
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

Disclaimer

This article contains general commentary onlyYou should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances

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