Ciska de Rijk and Gwendoline Keel, food law specialists at Simpson Grierson, explain the law around labelling a product as ‘healthy’.
Healthy food is a booming market. But do health claims on packaging need to be backed up by evidence?
What’s the law got to say?
There’s no law in New Zealand that specifically defines what ‘healthy’ food is, but there are laws and regulations that apply to the portrayal of a food as ‘healthy’.
For a start, you can’t make some health claims unless the food first meets specific nutritional requirements. For instance, health claims shouldn’t appear on foods that are high in saturated fat, sugar, or salt under the Food Code.
The Advertising Standards Authority’s (ASA) Code of Ethics also prohibits food advertising from being misleading or deceptive. In addition, the ASA’s Code for Advertising Food and Children’s Code for Advertising Food requires that food advertising must not undermine the Government’s health and nutrition policies, imply that a single food should replace a healthy balanced diet, or mislead consumers about the nutritive value of foods.
On top of that, the Fair Trading Act 1986, prohibits any claim being made about food that is false or misleading, including health claims.
And claims must also be able to be substantiated.
Where’s the line in the sand?
Relatively new Food Code legislation lists nutrition and health claims that can be made about certain substances in food (e.g. low fat, gluten free, good source of protein, no added sugar) — but only if specific requirements are met.
Food producers who want to make a general-level health claim can base their claims on one of more than 200 pre-approved food-health relationships.
All advertisements are expected to display a sense of social responsibility under the ASA Codes, and food advertisements are expected to observe an even higher standard and are not to ‘abuse the trust of, or exploit the lack of knowledge of, consumers’.
For example, describing a food as ‘low fat’ (albeit technically true) and therefore ‘healthy’ is likely to be misleading if the food is also high in sugar or salt.
The overall impression that a food’s packaging or advertising makes is what counts, under the Fair Trading Act, and any evidence supporting a health claim must be available at the time the claim is made and come from a reputable source.
Recently, Yoghurt Story New Zealand Limited was fined for misleading consumers about the nature and characteristics of its frozen yoghurt products, which did not contain yoghurt.
The Commerce Commission and the judge in the case looked to the Food Code for the definition of ‘yoghurt’, and found that the products could not be called ‘yoghurt’, and did not deliver on the health claims to ‘increase your immune system’ and ‘lower the risk of subsequent heart disease and diabetes’.
The Commission said ‘Where any trader makes claims about the health benefits of a product, we expect they will have appropriate research to justify the claim’.
Health and nutrition claims are big business, but not every consumer or food producer will have the same ideas about what ‘healthy’ food is. Because there is no legal definition for ‘healthy’ food, you should always check the nutrition information panel on foods, and read the list of ingredients carefully. Check out the food producer’s website for more detailed information.