August 30, 2017

If you’re gonna say it, you better mean it!

Shark Tank

Image Via news.com.au

Janine Allis, founder of Boost Juice and Retail Zoo, delivered a punch to two gym owners and Shark Tank hopefuls this week. The guys were pitching a food product to the Sharks, and the packaging revealed it was ‘engineered to accelerate muscle growth and increase energy levels’.

When asked whether they had completed any clinical trials, or had any proof that their food product actually did what the packaging said, the answer was no.

‘Misleading!’, was Allis’ response.

‘At the moment, you’re making health claims that aren’t proven which means it’s against the law. I would seriously think about repackaging because there’s a number of things on here that are simply against the food standards codes. You need to get good legal advice…’

The Australian Consumer Law (the ACL) is pretty clear on what product packaging can’t say: packaging with statements that are incorrect, or likely to create a false impression, are not allowed.

The proof is in the prosecutions:

-       Nurofen maker, Reckitt Benckiser, was fined $1.7M for breaching the ACL with its ‘specific pain range’, where all products contained the same active ingredient, and did the same thing

-       Arnott’s was fined by the ACCC for claims on its ‘Light & Crispy’ packaging for adopting a false comparator to inflate a health claim

-       When Heinz’s US parent company acquired Australian product Golden Circle, Golden Circle packaging continued to represent that Golden Circle products were Australian owned. Heinz gave undertakings to the ACCC, and also donated more than 800,000 affected cans of fruit and vegetables to Australian welfare agencies

-       Goodman Fielder, maker of non-dairy spread Logicol, engaged in misleading or deceptive conduct claiming on its pack ‘#1 RECCOMENDED for dietary change’. In this instance, it was competitor Unilever Australia (manufacturer of competitor brand Flora Pro-Activ) that sued Goodman Fielder for the breach

Takeaway

It’s a bitter pill to swallow when you’ve spent considerable time, money and effort designing eye catching, memorable packaging for a product and marketed that product to stockists and consumers, only to find out it breaches consumer laws and must be changed.

Claims about products must be true, accurate and capable of being substantiated, or you run the risk of an ACCC prosecution, or a rival competitor seeking to leverage your mistake to their advantage.

Unsure? Get legal advice – investing in peace of mind may save huge expense down the track.

Contact the team at Rouse Lawyers today.