Online sales of food and the need for the regulators to catch up
By Joe Lederman
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, November 2014
Given the massive ongoing growth in online purchasing of food, is food packaging being designed to be seen online (as opposed to only on the shelves)? Are the laws for regulating food labelling lagging too far behind when more food is being sold online? Are consumers receiving the mandatory information for food sold online that is still to be supplied to them? This article examines some of the issues.
Although the primary purpose of labelling for processed food is said to be food safety (such as declarations of allergens, presence of food additives and date marking) and traceability (such as product batch numbers and the street address of the supplier), other objectives are to inform consumers (such as Country of Origin labelling), and to allow for easier comparison between food products (such as the nutrition information panel).
When it comes to food law enforcement, food regulators have given food labelling considerable focus. Perhaps, this is because it is a relatively low-cost enforcement issue for governments. At the same time, food labelling facilitates consumer choices which makes it politically easier for governments to take a hands-off approach in any contentious aspect of food labelling.
In 2009, a meeting of Australian and New Zealand food regulation ministers gave their go-ahead for a comprehensive independent review of food labelling law and policy. The report of this review entitled ‘Labelling Logic – the Final Report of the Review of Food Labelling Law and Policy’ (the Blewett report) was named after the review panel chairperson Dr Neal Blewett. The Blewett report was released on 28 January 2011. Previous FoodLegal Bulletin articles have discussed aspects of the Blewett report -
- The Blewett Review: Legislation, Compliance and Enforcement (May 2011)
- Can the Blewett Panel push for private standards and industry self-regulation work? (April 2011)
- Blewett Panel’s Report: A blueprint for the future of food labelling in Australia (February 2011)
What is so special regulatory-wise about the sale of foods online?
When a food product is sold online, it is not currently required by law (as at 1 November 2014) to display the mandatory information that is legally required by the Australia New Zealand Food Standards Code (the Food Standards Code) for the label of the food if sold in a shop.
This means that Australian or non-Australian consumers may not be in a position to ascertain important information about a food product until after they have received the food product they have bought through an online purchase.
The current law (as at 1 November 2014) still requires any food sold through the internet to meet the requirements of the Australian Consumer Law (ACL), and in particular to avoid representing the item in a way that is misleading or deceptive. However beyond this, online sellers are arguably not always required to include further information that may be specified for labelling under the Food Standards Code.
Issue with labelling and online sales
The main problem that arises from this regulatory gap is not that labelling requirements are superfluous, but that labelling of a food being sold online is only forthcoming ‘after the event’.
Consumers often cannot see the information presented on the label for items purchased online. This may mean consumers are not provided with legally-mandatory information until they have paid for and received the product; and therefore such information will have been unavailable to be taken into account by a consumer when seeking to choose the items to be purchased online.
How could this problem be addressed?
A simple and safe approach for anyone wanting to sell a food product online would be to enable consumers to access the same mandatory information as is currently required to be provided on the label when looking for mandatory information in relation to the particular food product.
Blewett Report and online labelling
Recommendation 56 in the Blewett report stated:
That the potential for new information technologies be considered by consumer organisations, industry and government to provide extended product labelling for non-mandatory information.
The Blewett report Recommendation 56 referred to ‘non-mandatory information’ but seems to have forgotten to mention the mandatory labelling information!
The Blewett report noted that advances in technology may offer solutions to increasing demands on product labels, highlighting, for example, the usage of an international barcode system which facilitates access to a wide range of information which can be provided despite space restrictions.
However, it was noted that “Industry recognises that for the moment the focus still needs to be firmly on what is physically located on the product label at the point of sale”, and that “for the foreseeable future, this technology can only play a supplementary role”.
At the time of the Blewett report, the then Australia and New Zealand Ministerial Forum on Food Regulation stated that it supported this recommendation, noting the necessity to consider the finite space on food labels and the growing consumer demand for information on food labels. The approach of the Ministers of all Australian and New Zealand jurisdictions was to suggest that new technologies should be used to “complement” the traditional food label, and they said they encouraged industry development of such ideas.
Could labelling information be provided online as an alternative option?
The Blewett report noted that “extended labelling technology is still in its infancy” and that at present, manufacturers cannot rely on an assumption that a consumer will have access to devices which would make online information easily accessible. Furthermore, it is noted that the use of such technology could be more time consuming (compared to simply reading the packaging) and therefore may not be an efficient way of providing information.
The Australian Food and Grocery Council (AFGC), in a response to the Blewett Report, stated their support of recommendation 56, noting that “the AFGC and its member companies were already exploring the use of mobile scanning devices”.
I am NOT advocating that mandatory labelling be done away with. What I am saying is that online consumers must not be compelled to miss out on vital information simply because the law has failed to keep up with the online market.
The purpose behind the food labelling
Any decision as to where information about a food product should be provided should come back to the question of the purpose of providing the information, and the ease of access provided to customers to gain this information.
The AFGC, in their first submission to the Blewett report, noted that two key questions needed to be answered by the report:
- What is the justification for mandating the provision of information on food labels?
- What is the justification for prohibiting the provision of information on food labels?
At the moment, there are different mandatory information requirements under the Food Standards Code for packaged food sold by retail, or food sold for foodservice and wholesale. There are also some different information requirements for the retail scenario of foods being prepared at point of sale. In each of such cases, there remains a legal obligation to inform and the consumer can seek information on request before purchase, but mandatory information is always available. Yet currently, the same does not appear to be the case for all foods being sold online.
The time seems ripe for the Ministers to update the law for the online sale of foods to Australian consumers.
This is general information rather than legal advice and is current as of 12 Dec 2015. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.