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A Sunshine Coast company that manufactures "dairy-free" coconut yoghurt and ice cream products is being sued in the Queensland Supreme Court for up to $10 million, following a woman's death in the UK.
Key points:
- Celia Marsh, 42, died from anaphylaxis in 2017 after eating a wrap she believed was dairy free
- The wrap, made with coconut yoghurt manufactured by Planet Coconut, was found to contain milk protein
- Planet Coconut exclusively manufactured and sold COYO products in the UK and Ireland
COYO, based in Woombye, was started by married couple Henry and Sandra Gosling.
In 2014, COYO licensed its product to UK company Planet Coconut for 10 years, allowing it to exclusively manufacture and sell the product within the UK and Ireland.
Just after Christmas in 2017, 42-year-old Celia Marsh died from anaphylaxis after she ate a wrap, she thought was dairy free, from a British sandwich shop in Bath.
It was made with a coconut yoghurt, which was manufactured by Planet Coconut.
Later testing found it contained milk protein.
In documents filed in the Queensland Supreme Court, Planet Coconut sued COYO for $10 million in damages for misleading or deceptive conduct, and breach of contract.
Planet Coconut intends to rely on a report which suggests the source of the dairy contamination from the batch of yoghurt which Ms Marsh consumed was a yoghurt stabiliser – an additive which helps the product keep its consistency.
Planet Coconut alleges that there was an implied term in its licensing agreement with COYO that the stabiliser would be dairy free.
In a notice to defend, COYO responded to this by stating — even if there was a dairy-free implied term — it wouldn't necessarily mean the products were, in fact, 100 per cent dairy-free.
"The term 'dairy-free' has no fixed or established meaning in the industry," lawyers for COYO said in court documents.
They stated a product could be marketed as "dairy-free" even if it contains a small amount or traces of dairy.
In its suit against COYO, Planet Coconut said following Ms Marsh's death it lost three major stockists as customers, and was forced to foot the bill for recalling and testing the contaminated product.
Planet Coconut alleges COYO knowingly withheld information that the stabiliser was manufactured on the same production lines as other products containing milk, and there was significant risk it could be contaminated.
It also alleges the stabiliser manufacturer produced a report (a product information form) in 2014, warning about the risk of allergens within the factory – which COYO failed to pass on.
COYO has filed a defence denying these allegations, claiming it was Planet Coconut's responsibility to test and ensure the ingredients were dairy-free.
COYO launches counterclaim
Last month, in response to the lawsuit, COYO launched a counterclaim alleging Planet Coconut had breached its licence agreement.
It claimed after the two companies agreed to prematurely terminate its licence in 2021, another company named COCOS which is headed by a former director of Planet Coconut began manufacturing coconut yoghurt which was "manufactured in the same way" and "contained the same, or alternatively, materially the same ingredients" as the COYO product.
COYO claims because of this "there is no demand for [its product]" in the UK and if they had not started production, it would have started manufacturing its product in the UK.
The total amount the company claims it has lost because of this is yet to be tabled.
In its counterclaim, COYO is seeking compensation for damages, and an order that COCOS stop selling and marketing its product as it currently does.