ACCC investigates misleading representations of healthy food. What you need to know if you’re talking about your food.

Misleading representations of healthy food have been in the media recently with the ACCC investigations into food businesses such as Heinz, Smiths and Unilever. Has this got you thinking about what is misleading when it comes to talking about your food products?

First up, a bit of background. The ACCC along with Food Standards Australia and New Zealand work to prevent misleading or deceptive conduct in relation to food. The ACCC enforces regulations around fair trading including the Competition and Consumer Act. The key principle being that businesses must not engage in actual or potential misleading or deceptive conduct. When making claims, or representations about food, both the consumer protection and food standards regulations need consideration.

How do you avoid being misleading?

Claims about your product need to be true, accurate and able to be substantiated. It’s not just about the words you use, it’s the overall impression that matters (regardless if your intention was to mislead, or not).

The ACCC’s advice when making claims is to, check that the overall impression is accurate, back up claims with evidence and be prepared to substantiate your claims. Their advice on what to avoid: guessing the facts (I’m going to put Dr Google in the “guessing the facts” category).

What can you look out for when making claims?

Interpretation of the consumer protection laws is not static, it is dependent on court decisions, so when reviewing your claims focus on anything that may be meaningful to your consumers, or that influences or informs their purchase decision.

Food claims that most often fall under the consumer protection laws include representations about quality (vegan, fresh), quantity, composition e.g. (pure, 100%) or origin (e.g. local). In particular look for claims that suggest a moral, social or nutritional benefit or promote a perceived quality.

Below are the top five popular claims that often need further consideration:

1. Natural

Natural is a big trend. If you’re planning on capitalising on it consider:

  • What does natural mean in the context of your product and the general public (not just your customers)?

There’s a lot about food production that may not be considered natural from a customer’s perspective. Remember it’s how they see it that matters. The claim may be technically accurate but this may not be the main determinant of the overall impression. It’s about the impression the audience might have given to its audience.

  • Could you be giving the impression that everything in your product is natural?

In some cases, your key ingredients or hero foods may be natural but is everything you’re using considered natural? In some cases, additional information to qualify natural claims can be helpful in helping consumers understand your claim.

  • Are you providing all the information that is important for consumers in interpreting your claim?

What are the critical facts or elements for creating an accurate impression about the naturalness of your product? Is it an ingredients list, details on what is natural or why it is natural? Is there any information that could change the interpretation of your claim?

Something I often see is overarching claims of naturalness of a menu or restaurant but not an ingredient list in sight for me to understand if their “natural” is the same as my natural. Or if it’s just the meat that’s natural or if the naturalness extents to the mustard or the onion rings too.

2. Packed, loads, boost (Nutrient descriptors)

Serious question – How much is loads? What do your customers expect when you’re promising them loads of a nutrient (like a vitamin and mineral)? Can you quantify it and be confident in that quantification?

You get my drift – Some of these words can be hard to quantify. And if you can’t quantify it how can you substantiate the claim? And if you can’t substantiate the claim, should you be saying it?

While the Food Standards Code doesn’t specify exact words – it does provide nutrient levels for certain descriptors like contains, good source, excellent source, low and reduced or increased (and therefore words of similar meaning). (Although I’m not sure if there’s a synonym for loads).

3. “Vitamins and Minerals”

The generic use of the term “vitamins and minerals” appears to be a favourite description for many foods. And it makes sense, most whole food contain vitamins and minerals. But how do you substantiate this?

 Four questions to consider:

  1. What vitamins?
  2. What minerals?
  3. Do you have nutrient data on these vitamins or minerals in your food product?
  4. Is the level of the vitamins and minerals enough to substantiate a claim?

4. Hormone free

Your chicken, beef and pork are not hormone free. No animal meat is hormone free. Chickens, cows and pigs are animals. Animals, like humans, naturally have hormones to regulate the natural processes in their bodies. Do I need to say more?

In most cases the actual message is: No added hormones. And if you’re using this claim like with natural I’d make sure you can substantiate it and are not misrepresenting your product or products.

5. Healthy

Healthy is a term thrown around way too freely (in my opinion). And I understand why, it’s a nice general term that makes everyone feel better about their food choices. But what does it really mean? Are you even allowed to say it? And can you substantiate it?

Those are some big questions – it’s really a whole topic in itself. The definition of healthy is indicating or promoting good health. Prior to the Nutrition, Health and Related Claims standard – Healthy was something you just weren’t allowed to say about your food product. Generally, I avoid using this term to describe food products in favour of something more specific and meaningful. My recommendation is that if you are using this claim and can’t answer the above questions that you rethink its use or get the specialist advice to make sure your using it in a way that is compliant with your legal obligations.

What can you do?

This list is just the start - there are many more claims out there that require additional care and consideration. My advice:

·         Be aware of your legal obligations

·         Have a compliance strategy

·         Implement a process to ensure claims are substantiated

·         Review all published information for its overall impression

Your customers are trusting you be true and accurate in your claims as most of these they cannot check for themselves. Make sure you are worthy of that trust.