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Free-range claims

Consumers like to feel absolutely confident that when they buy food labelled ‘free range’, it really has been produced by animals that are farmed in a spacious environment, and not in cages. Ciska de Rijk and Gwendoline Keel, food law specialists at Simpson Grierson, explain the law around free-range labelling.

What’s the law got to say?

New Zealand doesn’t have any specific laws that say what ‘free range’ means. But the Fair Trading Act 1986, which is enforced by the Commerce Commission, requires that any ‘free range’ claims are not false or misleading and must be capable of substantiation. In extreme cases, the Crimes Act 1961 can also be relevant. Generally, we would expect New Zealand consumers to understand that ‘free range’ means the animals had meaningful, daily access to an outdoors environment in lower stocking densities than those seen in more intensive farming models.

Where’s the line in the sand?

The Commission is expected to come down heavily on free-range claims that are false or misleading as this is a significant breach of consumer trust, affecting goods that most consumers buy every week. Consumers pay a premium for free-range products, usually for ethical reasons such as supporting higher animal welfare standards and/or environmental sustainability. If the claims aren’t true, consumers are being cheated on the premium they pay, consumer confidence in such claims will be eroded, and the responsible businesses who live up to the claim will suffer, too.

In 2014, Northland egg producer Forest Hill Farm pleaded guilty to charges brought by the commission for falsely packaging and selling cage eggs as free range, and its owner was sentenced to 12 months’ home detention and 200 hours’ community work. The judge said it was very serious offending on the part of Forest Hill Farm and the deception had diminished public confidence in the industry.

The Commission expects a high level of substantiation for claims that a consumer cannot independently verify; as the Commission has said, “You can’t tell the difference between a cage egg and a barn-laid or free-range egg by looking at them.” For this reason, many consumers choose to rely on accreditation marks, such as the SPCA Blue Tick, when deciding which products to buy. Accreditation schemes vary, and some are run by industry groups. Consumers should review a producer’s website for further detail about what the accreditation actually means and ask the producer questions about how the product is actually farmed.

What’s up over the ditch?

The situation in Australia is similar at present.

Australian consumer law applies to free-range claims, requiring them to not be deceptive or misleading. But, recently, the Australians have gone a step further, with Consumer Affairs ministers agreeing to adopt legally binding rules on free-range egg labelling. The rules, which are being drafted, will form an information standard that will define what ‘free range’ actually means and will require egg producers to disclose certain information to consumers – such as how many hens per hectare are on their farms. The new standard is expected to be in place by April 2017.

Consumer tip

To find out if food producers can back up their ‘free range’ claim, visit their website for details of any accreditation they may have obtained, or contact them direct to ask about their farming practices.




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