A number of recent enforcement actions by the ACCC appear to indicate that claims made about food products, particularly ones targeting children, are being closely monitored by regulators. In addition to general obligations under the Australian Consumer Law, businesses should also be aware of regulations that specifically apply to claims made about the nutritional content and health benefits of food under the Food Standards Code (the Code).
Nutritional Content Claims
A nutritional content claim is any representation made about the nutritional content of food, including dietary fibre, energy, minerals, potassium, protein, carbohydrates, fat, salt, sodium, vitamins or glycaemic index (Nutritional Properties) i.e. a product is “low GI”, “low fat” or a ”good source of fibre”. These claims may only be made if the product meets the relevant Nutrient Profiling Scoring Criterion (NPSC), a quantitative measurement of the nutritional value of a product considering the above Nutritional Properties, and the claims are made using the language prescribed in the Code.
Health claims are representations made about the relationship between a food or the food’s properties and a health effect i.e. a health benefit from consuming the food. These claims can either be “high level” or “general level”.
A high level health claim refers to a serious disease or a biomarker (indicator) of a serious disease i.e. a high intake of fruit and vegetables reduces the risk of coronary heart disease. Owing to the risk involved with consumers relying on such claims, they can only be made using strict language provided in the Code that describes the relationship between the food property and health claim. Similarly, the food must meet the relevant NPSC score and corresponding general level health claim requirements specified in the Code.
A general level health claim is a more general statement about a product that is not “high level” i.e. zinc is necessary for normal immune system function. These claims involve a lower standard, however, can only be made if they meet the prescribed NPSC score and conform with the conditions stated in the Code.
Businesses should also be mindful of other claims about non-nutrient characteristics of food products such as premium claims, credence claims, environmental claims and organic claims. As with all representations about products, these should be true, accurate and able to be substantiated.
For further information or advice on whether the Food Standards Code applies to your advertising, please contact Melinda Upton, Jessie Buchan and Valiant Warzecha.