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Breaking news ? Choice targets marketing of antioxidants

Date Published
 05 March 2009
 Joe Lederman

By Joe Lederman
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, March 2009

On 4 March 2009, it was reported that Australia’s most well-known consumer activist group Choice, had published results of an investigation into food products that promoted the alleged health benefits of antioxidants and other fortifications. Choice’s investigation particularly targeted the marketing of juice products. Any food manufacturer or distributor marketing the health benefits of antioxidants or the fortification of their products must ensure not only that the products comply with the Australia New Zealand Food Standards Code but also comply with the Trade Practices Act.

The Choice investigation criticised that the levels of fortification were not sufficient to deliver the promised health effect (such as not containing enough Omega-3 as promised) and that high levels of some products with an alleged health benefit (such as gingko) could actually be dangerous to some consumers. Finally, the levels and health effects of antioxidants have been queried. Choice raised the example that apple juice only has 14% of the antioxidants that a whole apple would have.

Choice spokesperson Christopher Zinn criticised the lack of regulation in the food industry: “In our view the use of medicinal herbs in products like juices should be banned unless specific approval is given after a proper safety assessment, an idea which our food regulator has abandoned.” In this instance, Food Standards Australia New Zealand would be the body responsible for making safety assessments of food fortifications and is also continuing to work on the much delayed Food Standard regulating the making of Health and Nutrition Claims in relation to food.

Should the Choice investigation results be true, many of these products and their marketing materials could be in danger of being considered ‘misleading or deceptive conduct’ by the Australian Competition and Consumer Commission (ACCC). Such conduct might be considered to be in breach of Sections 52, 53 and 55 of the Trade Practices Act and could even result in product recalls or substantial fines as well as ongoing mandatory compliance obligations. Going on previous experience, when Choice releases a study, it follows later that the ACCC usually does a sweep of the category of products in relation to the issue that Choice has identified or highlighted and follows up with an investigation and, possibly, some prosecutions.

We strongly recommend that any companies concerned with claims being made in the marketing of their products seek immediate legal advice, having regard to the potential adverse consequences of a conflict with the ACCC.

FoodLegal is running a Training Course in the area of Trade Practices Compliance in Sydney on 1 April 2009. Click here for more details.