Superfood or superfool – the legal lowdown on using this name
Blueberries, goji berries, chia seeds, acai berries and of course, kale! These are the superfoods which are going to make you healthier, happier, smarter and just all round better, or so they say.
However, before you start spruiking your new superfood from the pristine Amazon rainforest, stop to make sure you do not make yourself a “superfool” by doing so and get into legal trouble.
- Although there is no legal definition for “superfoods” in Australia, you should still be careful not to make misleading or deceptive claims.
- Fine print disclaimers may be insufficient to correct or qualify a prominent representation on packaging or in advertising that is false or misleading.
What are Superfoods?
While there is no official definition for superfoods, natural foods that are nutritionally dense and considered extra-healthy are commonly marketed as “superfoods” by businesses. The catch is that there is no set criteria for determining whether a food falls into the superfood category or not.
This is similar to when the word “organic” became popular, and although there still is not a “legal” definition of the word organic, there are certain bodies which will certify things as organic.
“Superfoods” have not quite caught up yet, but some commonly marketed and popular superfoods include blueberries, goji berries, chia seeds, kale, pomegranate juice, salmon, acai berries, oats, sweet potato and ginger.
But, do these foods really have the effect that businesses claim when marketing them?
Most of these claims have been made based on studies conducted on very small and selective groups of participants. Some of the claims made in relation to superfoods are either exaggerations, based on inconclusive evidence or simply not true.
What is the law?
There is no law regulating the labelling of superfoods specifically. However, any claims made must not be misleading or deceptive, and any health claims made must be supported by evidence.
Food Standards Australia New Zealand (“FSANZ”) is the statutory agency which develops standards that regulate the labelling of products. FSANZ has banned businesses from making claims that superfoods help address serious diseases like cancer and heart disease without prior approval from them.
What else is considered misleading or deceptive conduct?
Be careful how you display photos and text on your labels. Fine print disclaimers may be insufficient to correct or qualify a prominent representation on packaging or in advertising that is false or misleading.
Superfood, really? Or only with milk added?
On 26th November 2015, Uncle Toby’s was fined $32,400 for inaccurately stating the protein content of one of their oats products.
The packaging of Uncle Toby’s ‘Traditional Oats’ and ‘Quick Sachets’ oats products had the word “Protein” displayed prominently in the centre of the front of the packet in a bright colour and in large font size. However, those products did not actually contain a significant amount of protein without the addition of milk. Therefore, Uncle Toby’s had made false or misleading representations about the protein content of these products.
Although Uncle Toby’s put a fine print disclaimer on the packaging saying “when prepared with [1/2 or 2/3] cup of skim milk”, it was insufficient to correct the dominant impression made by the misrepresentation.
What our firm can do to help
We are able to provide labelling and packaging advice relating to the latest product specific laws and liability issues, especially if you are wanting to claim that your food is a superfood or protect your brand name as a registered trade mark.
Sharon Givoni regularly runs seminars and workshops for educational institutions, businesses and industry associations. Food packaging and labelling is one of the areas she often presents on.
Disclaimer: This article is of a general nature and not to be replaced with tailored legal advice.