Jamie Oliver is unquestionably the most celebrated champion of healthy food options for children. He regularly criticises large food manufacturers that market unhealthy food to children. The Australian Competition and Consumer Commission (ACCC) has also become a player in this debate stemming from their capacity as the consumer watchdog. In June 2016, it launched proceedings against the H.J. Heinz Company (‘Heinz’) Australia Ltd in the Federal Court. They allege that Heinz has made false and misleading representations and engaged in conduct liable to mislead the public with regards to their Little Kidz Shredz products. This article details the nature of the ACCC’s action against Heinz and why it is important.

The Australian Consumer Law

The Australian Consumer Law (ACL) is the principal statute regulating consumer issues. While making false and misleading representations and misleading consumers is both a civil and criminal offence under the ACL, the action against Heinz is civil.

In the ACL, a false or misleading claim is a statement made by a business that is incorrect and which could create a wrong impression to consumers (mislead them). It encompasses statements made in:

  • Advertising;
  • Product Packaging;
  • Information provided by staff or online shopping services;
  • Media Statements;
  • Online and on social media.

Businesses are capable of making false and misleading representations that mislead customers even if it was unintended. If a statement misleads or creates a wrong impression overall as to the price, value or quality of a product or service, it is likely to have breached the ACL.

The policy concern underlining this part of the ACL is to ensure that consumers can make informed decisions in the marketplace.

ACCC Allegations against Heinz

As outlined above, the ACCC alleges that Heinz has made false and misleading claims about their Little Kidz Shredz products and has misled consumers towards the nature, characteristics and suitability of the products.

In short, the ACCC believes that Heinz’s claims:

  • Suggest that eating the products is akin to eating fresh fruit or vegetables;
  • Are a healthy and nutritious food for children aged between one (1) and three (3); and
  • Will encourage a child to develop a taste for nutritious food.

The particular representations made by Heinz include:

  • ‘99% fruit and veg”; and
  • ‘Our range of snacks and meals encourages your toddler to independently discover the delicious taste of nutritious food. With our dedicated nutritionists who are also mums, we aim to inspire a love of nutritious food that lasts a lifetime’.

Importantly, these claims are made alongside prominent images of fresh fruit and vegetables.

The ACCC believes that these are false and misleading and mislead consumers because:

  • The products contain over 60% sugar. In contrast, fresh fruit and vegetables have much less sugar. For example, an apple has only around 10% sugar.
  • As such, the products are more likely to inhibit rather than encourage children to develop a taste for healthy food because a child becomes accustomed to, and prefers, sweet tastes.

The ACCC seeks:

  • Declarations;
  • Injunctions;
  • Pecuniary Penalties;
  • Corrective Notices; and
  • Costs.

Why is the Action Important?

The action against Heinz is significant for businesses and consumers.

Businesses

The ACCC has a current focus on the health claims made by big businesses to consumers including those relating to products marketed at young children.

The ACCC action against Heinz provides a timely reminder to businesses big and small that they must make health claims about their products very carefully. Claims cannot be false, misleading or have the effect of misleading consumers. The ACCC is prepared to take action against any business that failure to comply with the ACL. This action could prove very costly and publicly embarrassing for the company.

It also reminds businesses that their practices are not immune from public debates and issues of community concern. The skyrocketing levels of obesity and disease in Australia, especially among children, are important public issues. For example, action against Heinz followed a complaint by the Obesity Policy Coalition.

Consumers

The action against Heinz acknowledges that consumers have a prominent interest in the way companies can market and advertise their products. These interests hold up in the marketplace even against the largest of companies.

Contact LegalVision’s advertising, media and consumer lawyers to assist you. Questions? Call us on 1300 544 755.

Carole Hemingway

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