Alert

Who does this affect?

Manufacturers, distributors and retailers of food and beverages in Australia.

What do you need to do?

Carefully review the way ingredients are portrayed on labels.

Author
Scott Bouvier  
Partner

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Scott Bouvier  
Partner
T +61 2 9296 2472

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Sydney
Scott Bouvier  
Maurice Gonsalves  
Katrina Rathie  

Melbourne
Caroline Coops  
Lisa Huett  

Brisbane
John Swinson  

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A new Food labelling guide (Guide) has recently been released by the ACCC which sets out its views about misleading ingredients related claims on food and beverage labels. The ACCC is particularly concerned about labels that may give the impression that a particular ingredient is a predominant ingredient in the product, but these views are currently untested.

The Guide is to be read in conjunction with other ACCC publications published in 2006 Food and beverage industry: food descriptors guideline to the Trade Practices Act and in 2005 Food and beverage industry: country of origin guidelines to the Trade Practices Act.

The 2006 guide covers a range of issues relating to food type assurance claims (eg halal, vegen, kosher), process/production/preparation claims (chilled, frozen, concentrated and unsweetened) and standard/style select claims (pure, 100%, fresh, natural). This new Guide is just focussed on ingredients related claims.

The Guide helpfully describes the respective roles of the ACCC and the Food Standards Australia New Zealand (FSANZ) and the food labelling laws they administer.

The Food Standards Code requires the disclosure on the label of the percentage of characterising components or ingredients when they are mentioned in the name of a food (e.g. strawberry in strawberry yoghurt), customarily associated with the name of the food (e.g. fish may be the characterising ingredient in fisherman’s pie) or emphasised on the label of a food in words, pictures or graphics (e.g. fruit juice in real fruit juice confectionary).

The disclosure is usually done through the ingredients list or in the nutrition information panel. However, the ACCC emphasises that food labels can still be misleading and deceptive even if they technically comply with these provisions.

When a business makes a representation about a food product, it must ensure the overall impression of the representation is not misleading or deceptive. Product labels should be designed on the basis that some consumers may make their purchasing decisions on the basis of the product’s look and feel including pictorial/photographic depictions of ingredients and accompanying copy on the front of the packaging.

Minor ingredients should not be given a disproportionately large pictorial emphasis. Businesses may need to include additional information on labels to qualify the emphasis given to a particular ingredient. However, labels which convey particularly strong impressions cannot be qualified or corrected by a disclaimer or qualification found elsewhere on the label.

Some examples of misleading conduct used by the ACCC in the Guide include:

• Austrimi Seafoods crumbed seafood product called ‘Kalamari’, featuring a picture of crumbed seafood rings on the label and an ingredients list showing that squid was 4 % of the product.

• Arnott’s Snack Right Apple and Blackberry Fruit Pillow comprised around 1.7% blackberry concentrate, 40% sultanas, 12.9 % apple concentrate and 8.6 % dried apple concentrate.

• Cottee’s banana mango–flavoured cordial used the words ‘banana mango’ in large print, pictures of bananas and mangoes and a ‘Go Bananas’ motif, when the product did not contain any real banana or mango.

• Go Natural’s fruit pieces in yoghurt implied the products were unprocessed berry and/or apricot pieces coated in yoghurt, when the product was made from a fruit-based mixture consisting of 35 % fruit concentrate, 30 % sugar and 30 % semolina.

Interestingly, none of the examples involves a contested finding about whether a particular ingredient which was present was over represented.

The examples either involve false 100% claims, claims where there were none of the represented ingredients represented or cases where the food company agreed to settle the claims. The examples don’t test whether an ingredient may be represented as a dominating ingredient when it dominates by its flavour profile as opposed to its percentage volume in the product.

So while this Guide is representative of the ACCC’s views about dominant ingredients, those views have not yet been tested by Australian Courts.