It’s no secret that many of today’s consumers’ purchases are strongly influenced by a desire to find healthy products, goods that support local producers or food that is prepared in a particular way.
Most manufacturers and retailers recognise this growing trend and many tailor products and packaging to cater to that demand.
But some attempts to capitalise on the popularity of healthy eating or ethically approved foods border on meaningless, while others have become downright misleading for some shoppers.
Careless, ambiguous or disingenuous claims can mislead shoppers and land manufacturers in hot water.
The Australian Competition and Consumer Commission has released a food descriptors guideline, setting a few basic benchmarks for producers and suppliers to follow.
The guidelines attempt to outline the most common areas of concern in food and beverage labelling, providing producers and packagers with some direction to help them comply with Australia’s consumer protection laws.
Food Standards Australia New Zealand is responsible for providing consumers with adequate information about the foods available for sale, but the Australian Competition and Consumer Commission (ACCC) also has a role in preventing all businesses in Australia from misleading or deceiving their customers.
This includes the food and beverage industry, which must comply with the Trade Practices Act.
Impressions count
A number of food and beverage producers have found themselves facing court action over the years as the result of ACCC action.
One common misconception is that a producer must knowingly be in breach of the law before they can be penalised.
This is not the case, as what a business intended is generally not relevant under the Act and is unlikely to sway a court’s opinion.
The overall impression a product conveys can also be more important than individual details on a label.
Even if a label makes qualifying statements, it may still be misleading in the eyes of a court if the overall impression has the potential to convey a misleading message.
Breaches don’t always lead to penalties, but corrective advertising, public apologies and other corrective action can be embarrassing and costly for the businesses involved, making it essential that all suppliers understand their basic obligations under the law.
In fact, something as simple as failing to mention an important aspect of a product can be enough to cause problems.
It might sound trivial, but such apparently minor issues as whether a food contains a particular type of fruit depicted on the label or whether it is simply flavoured to taste like it can be enough to lead to a breach of the law.
In 2004 legal action was brought against Cadbury Schweppes by the ACCC for misleading customers over the fruit content of two cordials.
The cordials were made of fruit-flavoured concentrate and the Federal Court found most reasonable consumers would have expected the product to contain real fruit, which may have influenced their decision to purchase.
Of course, some terms by their very nature are ambiguous and it is advised that these be used with caution or avoided altogether.
Terms such as ‘locally produced’ can mean many things to many people, and descriptions such as ‘fresh’ or ‘natural’ are also broadly open terms.
That said, there are certain general expectations customers have when buying products labelled as ‘fresh’ or ‘locally produced’.
Items that have been frozen for instance, would seem to have a tenuous claim on the ‘fresh’ tag.
Consumers may generally accept pasteurised milk to be fresh, but may be surprised to find some so-called ‘fresh’ fruit juices are also pasteurised.
Clearly labelling the product with information about how it has been treated may avoid misunderstanding.
There are four broad categories where food producers need to consider the descriptions or depictions they give of their products.
Food type assurance claims
These include descriptions such as vegan, Kosher, or Halal.
Customers who purchase food based on these assurances would have a reasonable expectation that, for example, food claiming to be vegan has not come in contact with meat products at any stage of the production process.
Similarly, customers buying Kosher products expect it to be prepared in a particular way and may feel misled if they discover that foods claiming to be Kosher have been processed on machinery also used to process non-Kosher meat.
Production, process or preparation claims
Similar to assurance claims, process claims include terms such as organic, free-range, chilled or concentrated.
When making such claims, it is important to consider the entire production chain, even beyond the production of the actual product being sold.
In 2004, a poultry manufacturer agreed to change the labelling on its free-range chicken products after the ACCC raised concern about some of the feed given to the company’s chickens.
Baiada Poultry claimed its chickens were not genetically modified, but the ACCC argued that feed given to the chickens, which may have contained genetically modified soy, could mislead customers who were buying the chicken because of its GM-free status.
Origin claims
The desire to support producers in the local region can be a deciding factor for many shoppers, making it important for producers to clearly identify what they are talking about when branding their products as ‘local’.
In 2002 the Federal Court found Woolworths had published misleading advertising when claiming its beef was sourced from local suppliers in the North West and New England regions of NSW, when in fact some of its beef products had been sourced from outside the area.
Foods that meet a standard or style
This includes common claims such as fresh, pure, trim, genuine and real.
While often thrown around in advertising, these terms should not be used simply as embellishments, and must be backed with some form of substantiation.
Consumers are unlikely to be impressed by ‘pure’ produce that contains preservatives or additives and this could be detrimental to the manufacturer.