The Hershey Company will soon be found in the health food isle, but with health and nutritional branding they'll need to tread carefully.

The Hershey Company, has recently announced that it is expanding its snack business in 2016. Well known for its iconic Hershey’s Chocolate bar, Hershey’s intends to branch out into the health food market with products including fruit and protein squeezes, snack squares, and nut and seed packets.

In Australia, businesses that wish to use ‘health or nutritional branding’ must consider a number of legal issues including compliance with the Australian Consumer Law (ACL), the Food Standards Code and also trade mark law.

Australian Consumer Law (ACL)

Under the ACL a businesses must not make false, misleading or deceptive or unsubstantiated claims about the quality, characteristics, benefits or origin of a product.

Recent action by the ACCC should serve as a warning to those in the food industry that claims made on food packaging and in advertising must be 100% accurate and not misleading or deceptive. For example, in November 2015:

  • Uncle Toby’s was fined $32,400 for false or misleading representations about the protein content of certain Uncle Toby’s brand oats products; and
  • Arnott’s was fined $51,000 for false or misleading representations about the saturated fat content of its ‘Shapes Light and Crispy’ product.
Australia New Zealand Food Standards Code

From 18 January 2016, food manufacturers must comply with the Australia New Zealand Food Standards Code - Standard 1.2.7 - Representations about Food (Food Standards Code). Standard 1.2.7 sets out the rules to regulate nutritional content claims and health claims on food labels and in advertisements. The Food Standards Code prohibits health claims (a claim that refers to a relationship between a food and health) from being placed on products if they are not substantiated.

The mere use of the word “healthy” will not automatically be considered a health claim, however, manufacturers need to consider carefully the claims they make on their food products and in their advertising and ensure they are in line with the Food Standards Code.

Trade mark law

The use of health of nutritional claims may also affect the ability of a food manufacturer to secure trade mark protection. Pursuant to the Trade Marks Act (Cth), a trade mark application must be rejected if if it is descriptive or if it is likely to deceive or cause confusion or if its use is contrary to law.

It is possible that, if there is a false representation in a trade mark in relation to a particular quality of food, the trade mark registration may be rejected.

What food manufacturers need to know

These laws require manufacturers to carefully consider the claims they make on their food products and in their advertising. Food manufacturers should ensure that they are not engaging in misleading and deceptive conduct that could land them in hot water with the ACCC and/or in breach of the Food Standards Code.

Lisa Simonds
Lawyer