Be Aware Of Food And Beverage Branding Restrictions In Australia And New Zealand.
Legal News & Analysis - Asia Pacific - Australia - New Zealand - Intellectual Property - Regulatory & Compliance
6 January, 2020
Restrictions affect the use of certain words, statements and imagery in branding.
What you need to know
- Businesses should be aware that food and beverage branding is under increasing scrutiny in Australia and New Zealand in an effort to restrict the way certain foods are marketed to consumers.
- These restrictions affect the use of certain words, statements and imagery in branding in Australia and New Zealand.
What you need to do
- Consider the impact of the Food Standards Code, NZ Fair Trading Act, Australian Consumer Law and advertising restrictions when launching a new advertising campaign or product, or updating product packaging in Australia or New Zealand.
- Review existing packaging and consider whether the branding elements accurately reflect the nutritional value of the product to consumers.
In Australia and New Zealand, laws, regulations and guidelines impose restrictions on branding and advertising.
In particular, those covering the sale and advertising of food and beverages include the Australian and New Zealand Food Standards Code (Code), the New Zealand Fair Trading Act 1986 (Fair Trading Act), the Australian Consumer Law (ACL) and advertising codes in each country.
The Code sets out mandatory standards for labelling and composition of food and beverages in Australia and New Zealand and is enforceable as law. The Fair Trading Act and ACL cover misleading and deceptive conduct and unfair trade practices, including in relation to information provided about food and beverage products. Advertising bodies in each country also have codes which are designed to ensure responsible advertising.
We explore below how each of these impose restrictions on the use of trade marks and branding on food and beverages.
Nutritional claims must comply with the Code
The Code sets out specific requirements for labelling foods. It also prevents the use of nutrition content or health claims on certain foods (including infant formula and food which contains more than 1.15% alcohol by volume).
Businesses should be particularly careful when using nutritional claims on products. Examples include: "low fat", "good source of protein", "low sugar" or "no added sugar". The Code contains specific conditions that must be met to justify use of these claims. If these are not met, the product would breach the Code, as well the Fair Trading Act or ACL as the claim is likely to mislead consumers about the nutritional content of the product.
Restrictions may also apply in relation to certain food names or products. The Code provides definitions for certain foods, and products may not be labelled as such unless the definition is met. For example, coffee must be prepared by roasting and/or grinding coffee beans before it may be called "coffee".
However, in some cases the surrounding context may help to clarify the food name, and avoid breaching the Code. For example, in Fonterra Co-Operative Group Limited v Vitasoy International Singapore Pte. Ltd.  ATMO 137, the Australian Trade Marks Office considered use of the "GROWING MILK SINCE 1940" mark in the context of selling plant based milks. Under the Code, "milk" refers to animal milk and products which are not "milk" cannot be sold as "milk". However, as Vitasoy's products were labelled as "soy milk" or "almond milk" the trade mark was not considered to breach the Code even though it used the word "milk" in relation to a non-animal milk. See our article about this case in the November Food Law Update.
Registered trade marks can still breach the Fair Trading Act and ACL
The Fair Trading Act and ACL cover misleading and deceptive conduct in relation to all goods and services.
These laws may prevent use of certain branding where it contains a false or misleading statement. Even where a business owns a trade mark registration for a particular word or statement, it can still breach the Fair Trading Act or ACL if it misleads consumers. For example, using a trade mark which contains the word "HEALTHY" in relation to food deemed to be unhealthy may breach the relevant legislation.
Restrictions on advertising food and beverages
The advertising industries in Australia and New Zealand self-regulate and promote responsible advertising through the Advertising Standards Code (in New Zealand) and the various AANA Advertising Standards Codes (in Australia). They provide, for example, that advertisements for food and beverages must be factual and must not mislead consumers about the nutritional value of the product.
In addition, some advertising restrictions target specific foods and beverages. For example:
- in New Zealand, advertising of "occasional food and beverages" (that is, "junk foods") cannot target children or be placed in any media where children are likely to be a significant proportion of the expected average audience. In Australia, advertising of food and beverages must not "encourage or promote an inactive lifestyle or unhealthy eating or drinking habits"; and
- in New Zealand, advertising of alcohol must be consistent with promotion of drinking in moderation and must not encourage drinking by minors. In Australia, advertising of alcohol must not have a "strong or evident appeal to minors".
Given this, particular care should be taken when advertising occasional food and beverages or alcohol, as such advertising will be closely monitored by the advertising industry, competitors and consumers