The Food Standards Code (FSC) prohibits most "health claims" on labels and advertising for food. However, the statutory body responsible for enforcing the Food Standards Code in New South Wales, has rarely taken action for breach of these provisions. Nor has it given any publicly available guidance as to the extent of these provisions. Up until now, many members of the food industry have marketed the health benefits of a category of food (such as wholegrains, dairy or soy) rather than naming any health benefits of a particular brand of product of that manufacturer so as to avoid these provisions. That practice may now need to change given a recent decision of the Advertising Claims Board (ACB).
The ACB recently reviewed a complaint made by Fonterra Brands (Australia) Pty Ltd (Fonterra) about the advertisements of Goodman Fielder Consumer Foods Pty Ltd (Goodman Fielder). The advertisements in question marketed the benefits of margarine spread over butter. The ACB had to consider whether the claims made by Goodman Fielder breached the Food Standards Code and therefore the AANA Advertiser Code of Ethics. Outlined below is a summary of the ACB's case report.
The Fonterra complaint related to two Goodman Fielder TVCs for Meadow Lea that had been broadcast on national television (the Advertisements).
Fonterra specifically alleged that one of the TVCs was clearly an advertisement for Meadow Lea (the Animated Advertisement).
The Animated Advertisement included a voice-over stating:
The second TVC was an advertisement for margarine more broadly. In the commercial, Dr. Andrew Wilson highlighted the saturated fat content of butter and asked the viewer to 'Think how much of that is going through your child's arteries'. He subsequently made the statement 'For a healthier option, switch to a margarine spread...' (the Cardiologist Advertisement).
Fonterra contended that the Cardiologist Advertisement was not an educational advertisement or public service message but an advertisement for plant seed spreads and Meadow Lea.
Fonterra argued that both Advertisements were linked in a 'top and tail' technique, so that they were shown in the same advertising break, separated only by a short space of time, the Cardiologist Advertisement preceding the Animated Advertisement. That linkage, according to Fonterra, had the consequence that the two Advertisements should in fact be treated as a single advertisement.
Fonterra alleged that the Advertisements (whether taken separately or as one advertisement) included a word of similar import to "health" as part of or in conjunction with the name of a food, namely Meadow Lea plant seed spreads (or, at least, plant seed spreads) in breach of clause 3(b) of Standard 1.1A.2 of the Food Standards Code.
Fonterra also submitted that the Advertisements contained advice of a medical nature in breach of clause 3(c) of Standard 1.1A.2 of the Food Standards Code because they conveyed the overall impression that:
- saturated fats can adversely affect children's health;
- butter contains significant amounts of saturated fats and can thus adversely affect children's health; and
- a reduction in saturated fats, through the substitution of plant seed spreads for butter, will improve (or at least preserve) children's health.
Fonterra finally alleged that the overall impression of the Advertisements, taken together as one advertisement, was that the consumption of butter is linked to a health condition, namely heart disease and/or other physiological conditions relating to blocked arteries in breach of clause 3(d) of Standard 1.1A.2 of the Food Standards Code.
Goodman Fielder's response to the complaint
The substance of the Goodman Fielder's response was that:
- the Cardiologist Advertisement was not an 'advertising or marketing communication' as defined in the AANA Advertiser Code of Ethics;
- the Cardiologist Advertisement was not an advertisement for 'food' for the purposes of the Food Standards Code; and
- while the Animated Advertisement was conceded to be an advertising or marketing communication for food for the purposes of the AANA Advertiser Code of Ethics and the Food Standards Code, the Animated Advertisement did not contravene the prohibited health claim provisions of the Food Standards Code.
Goodman Fielder also challenged whether the subject matter of the complaint fell within the jurisdiction of the ACB.
The ACB's decision
The ACB ultimately decided that in its opinion:
- the Cardiologist Advertisement contravened clauses 3(b) and 3(c) of Standard 1.1A.2 of the Food Standards Code and therefore also breached the AANA Advertiser Code of Ethics;
- the Animated Advertisement contravened clauses 3(b) and 3(c) of Standard 1.1A.2 of the Food Standards Code and therefore also breached the AANA Advertiser Code of Ethics; and
- neither the Cardiologist Advertisement nor the Animated Advertisement breached clause 3(d) of Standard 1.1A.2 of the Food Standards Code.
There is still very little publicly available information as to how broadly food authorities will interpret the health claim provisions of the Food Standards Code. However, this decision makes it clear for the first time that health claims about a food category as opposed to a branded product may at the very least amount to a breach of the AANA Advertiser Code of Ethics.
The assistance of Simone Vrabac, solicitor, of Addisons in the preparation of this article is noted and greatly appreciated
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.