What must a pack called acai be true of?

The name on the pack

Every food sold in Australia and New Zealand has to comply with food standards, and those standards are compiled in the Australia New Zealand Food Standards Code. The Code is law in Australia rather than guidance: its changes are gazetted and registered as legislative instruments on the Federal Register of Legislation. The naming rule sits in Standard 1.2.2, Information requirements, food identification, and it is written as two halves.

For the labelling provisions, the name of a food is: (a) if the food has a prescribed name, the prescribed name; and (b) otherwise, a name or description: (i) sufficient to indicate the true nature of the food; and (ii) that includes any additional words this Code requires to be included in the name of food.

Food Standards Code, Standard 1.2.2, s 1.2.2-2, on the Federal Register of Legislation

The first half is short, because the Code’s own note lists the names it prescribes: fermented processed meat, not heat treated, heat treated and cooked; fermented manufactured meat, the same three; follow-on formula; formulated meal replacement; formulated supplementary food; formulated supplementary food for young children; formulated supplementary sports food; honey; and infant formula. Thirteen names, and none of them is a fruit. A pack called acai cannot rest on that half of the rule, and the Code’s definitions do not help it either: if the Code includes a definition of a particular food, that fact alone does not establish that the defined term is the name of the food.

So a pack of this kind stands on the second half: a name or description sufficient to indicate the true nature of the food inside. That is a question about the contents, and it does not change with the form: a name that says one thing while the pack holds another is a representation about the goods, and the consumer law below applies to it.

What a name has to be true of

The Food Standards Code is not the only instrument a name answers to. The Australian Consumer Law applies to conduct in trade or commerce, and it begins with a general prohibition:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Competition and Consumer Act 2010, Schedule 2 (the Australian Consumer Law), s 18, on the Federal Register of Legislation

Two further sections are particular about goods. A person must not make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model, or have had a particular history or particular previous use. And a person must not engage in conduct liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods. Composition, nature and quantity are the three things a name speaks about, so those are the sections a name is read against.

The ACCC states the same rules plainly for the businesses they bind: claims should be true, accurate and based on reasonable grounds; a business must be able to prove any claim it advertises; and it must be able to prove a claim of a product having a particular quality or benefit. Anything that creates a false impression about goods can be breaking the law, intent makes no difference, and the rule reaches every way a business communicates: advertising, product packaging, a quotation, information from staff whether verbal or written, social media, testimonials, websites or any other platform. Even silence is caught in some circumstances: a failure to disclose can mislead where a business gives a consumer some information but leaves out important details relevant to their decision.

The framework for novel foods

Sitting around the name is a second framework, the one for foods that are new to the food supply. FSANZ describes novel foods as non-traditional foods that require assessment by FSANZ to establish their safety before they are added to the food supply. In Australia and New Zealand, novel foods and novel food ingredients are regulated under Standards 1.1.1 and 1.5.1 of the Code.

The rule those standards carry is a prohibition with a list. A novel food cannot be a food for retail sale, or an ingredient in one, unless it is listed in the table to section S25-2 of the Code, and that table lists the permitted novel foods together with their conditions for use, including use levels, restrictions on use and labelling requirements. Anyone wanting to sell a novel food, or a food containing a novel food ingredient, must apply to FSANZ for the Code to be amended to list it, and the application is subject to a statutory assessment that includes a pre-market safety assessment. FSANZ describes the process as a risk-based public health and safety assessment, and notes that an applicant may ask for permission to be subject to a period of exclusive use of up to 15 months.

How a particular food is classified is not something this guide decides, and FSANZ sets out how it is worked out: the definitions of “non-traditional food” and “novel food” are in section 1.1.2-8 of Standard 1.1.2, and the ways to determine whether a food is novel include the guidance tool, advice from a food consultant or a lawyer, and the recommendations in the record of views of the Advisory Committee on Novel Foods. FSANZ adds two cautions about that record: the committee’s recommendations are not legal advice and are not legally binding, and they are not advice, recommendations or decisions by FSANZ itself. One line matters to anyone checking a claim later: FSANZ does not enforce the Code, a job that belongs to food enforcement agencies in Australia and New Zealand.

Three things under one name

Three things are sold under the one name, and the comparison between them is not about the word on the pack. It is about whether the rest of the pack agrees with it. A name that a buyer reads as the fruit itself, on a pack whose contents are a powder, is a representation about the composition and the nature of the goods, and it is read against the two Australian Consumer Law sections quoted above. On the Food Standards Code side, the note that lists the prescribed names does no more than name those foods: it fixes no share and no composition with which a name has to agree.

The three forms part company over something else. Once a form is packaged and sold, the pack carries information the name does not: the name of the food, the lot, the supplier’s name and address, a date mark and storage conditions, and, for imported food, the origin words. Those are the subject of the pack guide. What may be printed beside them about the food is the subject of the words guide, and the border each form crosses on the way here is drawn in the border guide.

One more thing follows from the name rule and is worth stating plainly: because no prescribed name fits, the name must indicate the true nature of the food and carry any words the Code requires. FSANZ’s own enforcement note means the agency to ask about a label is a state or territory food enforcement agency, not FSANZ.