Advertising Compliance and Food Packaging

There is a raft of legislative and regulatory guidelines which provide guidance to businesses and simultaneously aim to protect consumers from false and misleading advertising. Advertising claims on food packaging are designed to entice consumers to buy their products and drive sales. Further, there is a direct correlation between consumer preferences and sales figures, and companies are constantly modifying their advertising claims in an attempt to satisfy evolving consumer trends. This article will explain the laws regarding food advertising and what claims, as a business, you are permitted to make.

Food Standards Legislation

The Food Standards Australia New Zealand Act 1991 (Cth) contains the Australia and New Zealand Food Standards Code (‘the Code’) and governs food packaging and labels. The objectives of this law is to:

1. protect public health and safety;
2. provide adequate information relating to food to consumers; and 
3. prevent misleading or deceptive conduct. 

In NSW, state legislation also provides guidelines, including the: 

• Food Act 2003 (NSW); and
• Competition and Consumer Act 2010 (Cth) (‘CCA’) (formerly the Trade Practices Act 1974 (Cth)). 

Classification of Claims

Food advertising claims can be classified into various categories including, but not limited to:

1. standard claims;
2. health claims;
3. endorsement claims;
4. nutrition claims;
5. certification and organic claims; and
6. puffery.

These claims are summarised below.

1. Standard Claims

A standard claim is one that implies that the product is of a particular: 

• grade; 
• quality; 
• value; or
• style.

An example of a standard claim is that a food item is ‘fresh’. Moreover, for a claim not to be misleading, the food item advertised as ‘fresh’ must:

• have retained its original properties; 
• be otherwise unimpaired;
• have not deteriorated via a process of manufacture; 
• not be canned or frozen; and
• not have otherwise been preserved.

2. Health Claims

The recent social trend towards living a healthy, active and balanced lifestyle has led to the emergence of health advertising claims. Businesses engineer such claims to inform consumers of one product’s superior health benefits and components over another. You may have noticed catchphrases on your food packaging, such as:

• low fat;
• sugar-free;
• low in salt; 
• healthy; and
• low calories.

A health claim is one that states, suggests or implies that a food product or a certain property of the food product has, or may have, a health effect. Additionally, businesses can make health claims in their advertising, provided they comply with Commonwealth and state Food Standards legislation, and the claims are true.

For example, the Code prescribes the high and general level health claims that producers can make regarding food products or ingredients contained in them.

3. Endorsement Claims

An endorsement claim is a claim that represents that a person, or entity, endorses a product. In addition, food suppliers can include an endorsement on a food label if they keep the required records and make such records available on request. Namely, a food supplier must show evidence that the endorsing body:

• has a nutrition or health-related purpose, e.g. The Heart Foundation;
• is a not-for-profit entity; and
• is not commercially connected to the food supplier.

4. Nutrition Claims

A nutrition claim is one that represents, states, suggests or implies that a food product has particular nutritional properties and includes a reference to:

• energy, salt, sodium or potassium;
• amino acids, carbohydrates, cholesterol, fat, fatty acids, fibre, protein, starch or sugars;
• vitamins or minerals; and
• any other nutrients. 

5. Certification and Organic Claims

Sellers of food are entitled to make organic claims via certification marks if they meet the compliance standards of the body charged with managing the certification mark. Generally, consumers would expect food that has a label of ‘organic’ to be free of synthetic fertilisers or herbicides.

6. Puffery

At times, businesses will use wildly exaggerated claims about a product, and no reasonable person could treat them seriously. The practice of making such claims is known as puffery. Puffery can relate to almost anything, including the attributes or characteristics of food products.

Key Takeaways

All advertising claims on food packaging must be capable of being substantiated and backed by evidence. This is essential so that consumers can make an informed decision about the food they purchase. If you would like more information regarding your obligations when labelling food, contact LegalVision’s advertising and consumer lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions