Deer velvet company’s appeal against allegations fails
Deer velvet company Silberhorn has lost an appeal during its longrunning fight against allegations it overstated the amount of deer velvet in some of its products.
The Commerce Commission charged the company and its sole director, Ian Carline, of Invercargill, over allegations of product mislabelling, namely overstating the amount of deer velvet it used in its capsules.
Originally 101 charges were laid under the Fair Trading Act and the director and company were to face an eight-week trial.
The company last year admitted 26 charges relating to its deer velvet, and the company and Carline each admitted one charge of withholding information from the commission.
Carline’s counsel filed an appeal with the High Court over an issue with disclosure made during a disputed facts hearing that happened after he pleaded guilty to some charges, but before he was sentenced.
Carline said he not know about the mislabelling. He argued customers were not disadvantaged by receiving less deer velvet than advertised because a change to the manufacturing process meant the product had become more effective.
Supporting that claim was a draft research report by deer velvet expert Dr Stephen Haines, of AgResearch New Zealand.
Haines said his research found Silberhorn’s product had more ‘‘actives’’ in it than the other powders. The disclosure decision related to four reports authored by Dr James Suttie, an authority on deer velvet.
The commission withheld those reports, with Judge Kevin Phillips ruling in their favour, after reading their contents.
Silberhorn’s counsel, Colin Withnall, QC, argued the company was not trying to mislead anyone, and Haines’ evidence showed its manufacturing process resulted in higher levels of the relevant proteins and lipids than other New Zealand products analysed at the same time.
He noted the Commerce Commission did not challenge Haines’ finding and had not disclosed Suttie’s reports – the inference being that they agreed with Haines’ conclusion.
‘‘It is fundamentally wrong in a criminal proceeding brought by a statutory body such as the Commerce Commission, to withhold . . . a review . . . of another expert engaged by the defence, when that review either supports at the very least or does not derogate from the defence expert’s findings.’’
John Dixon, QC, said the products tested by Haines was not the same used over the offending period.
Justice Gerald Nation said it was not in the public interest to release Suttie’s reports, and agreed with the decision made by Judge Phillips.
He dismissed the appeal and sent the matter back to Judge Phillips for sentencing. No date for the sentencing has been set.