Ciska de Rijk and Gwendoline Keel, food law specialists at Simpson Grierson, explain the law around labelling a product as sugar free.
What’s the law got to say?
Under the Food Code, food manufacturers can make a sugar-free claim, but the Fair Trading Act (enforced by the Commerce Commission) prohibits them from making false or misleading representations, and requires that food producers have evidence to back up any claims they do make. The Advertising Standards Authority’s (ASA) codes of advertising also prohibits food advertisements from being misleading or deceptive.
Where’s the line in the sand?
The Commerce Commission is expected to come down heavily on claims appearing on food that are false or misleading and that breach consumer trust and confidence. The ASA codes require all advertisements to display a sense of social responsibility and to not “abuse the trust of, or exploit the lack of knowledge of, consumers”.
Accordingly, a food that is promoted as being sugar free, when it contains honey or is sweetened with concentrated fruit juices, is likely to be considered misleading under the Fair Trading Act and the ASA codes. This is because the overall impression that the sugar-free claim makes on the consumer is the one that counts – and such a claim gives consumers a false sense of assurance that the food they have chosen is sugar free and/or healthy. The Commerce Commission recognises that consumers are prepared to pay a premium for healthier products and therefore expects a high standard of industry responsibility.
There are further requirements for making ‘% free’, ‘low’, ‘reduced’ or ‘light’, ‘no-added’ or ‘unsweetened’ claims.
What’s up over the ditch?
The Food Code applies to both New Zealand and Australia. The Australian consumer law regulator, the Australian Competition and Consumer Commission, also prioritises misleading and false claims in relation to food and has taken many cases in this area.
Consumer tip
Don’t rely on the marketing claims made on product labels to guide you in your choice of product. Always read the nutrition information panel on food labels and the statement of ingredients, and be aware of the various guises that sugar comes in.
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