How could this not have any fat, its too good!” – George Costanza, Seinfeld, episode 71 “The Non-Fat Yogurt”.

As the iconic Seinfeld episode featuring an apparently non-fat frozen yogurt comically highlights, consumers’ purchase decisions can be strongly influenced by the health claims that businesses make about their food products. Even before the current pandemic brought about heightened consumer interest in wellbeing, the Australian Competition and Consumer Commission (ACCC) had marked misleading claims in food marketing as an enforcement priority for 2020. With consumers increasingly focused on ways to stay fighting fit during these challenging times, businesses should exercise caution when making claims that suggest a relationship between a food (or property of that food) and a health outcome.

Recognising the potency of health claims in the minds of potential consumers, the Australian Consumer Law (ACL) and the Food Standards Code (FSC) establish obligations that must be complied with. At a high level, businesses should take particular care in respect of the following:

  • Accuracy health claims must be accurate and truthful where they appear in any context including labeling, packaging and other advertising materials. Unnecessary superlatives should also be avoided when it comes to potential health benefits.  If the product fails to live up to the hype, such claims may be found to be in contravention of the prohibition on misleading and deceptive conduct.
  • Substantiation – common to both the ACL and the FSC is the importance of substantiating materials. Businesses should ensure that any health claims made in respect of food products are able to be supported by evidence such as test results, documents establishing compliance with relevant standards, and/or scientific studies.
  • Therapeutic uses – businesses should generally avoid making claims that suggest a particular food product has a therapeutic use / medical benefit, or otherwise engage in comparisons with a product that has such uses, because these types of claims are monitored by the Therapeutic Goods Administration and may trigger additional obligations.

While the ACL provisions look to prevent consumers from being misled or deceived, Standard 1.2.7 of the FSC provides further detailed obligations and classifies health claims as either “general level claims” or “high level claims”. Where claims are high level, i.e. they refer to a relationship to a serious disease or biomarker of such a disease, they can only be made with the prior approval of the FSANZ.  General level claims can be made on the basis of pre-approved food-health relationships, or they can be self-substantiated – in which case a notification must be made to FSANZ along with a certification that the food-health relationship in question has been established by a process of systematic review in accordance with the FSC.  You can read more about compliance with the FSC in our previous post: Food Standards Code: Claims in Food Advertising and Marketing.

This article was authored by Alexandra Moore (Solicitor), Valiant Warzecha (Solicitor), Jessie Buchan (Senior Associate) and Melinda Upton (Partner and Global Co-Chair, Intellectual Property and Technology).