In the food industry, competition is fierce. To increase their market shares, food manufacturers rely on multiple strategies. Whether through traditional promotional and advertising activities, social media or thoughtful packaging, marketing specialists seek to influence the consumer.
One marketing strategy involves using statements related to nutrition, health, food safety, environmental concerns, animal well-being, religious values and/or prevailing trends. These statements, also known as claims, may consist of words or pictorial representations. They can even be part of a trademark. In any case, they must be truthful and not misleading, as Section 5 of the Food and Drug Act states:
No person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.
What is considered misleading and deceptive?
What is likely to create an erroneous impression? Interpretation of these terms can be ambiguous.
For clarity, the Food and Drug Regulations dictate specific wording and conditions for making nutrient content and health claims. Additional guidance can also be found on the Canadian Food Inspection Agency’s web site. However, new, trendy statements often require considerable reflection to determine if they are misleading or deceptive.
Even factual statements can be misleading. Indeed, a claim may be both true and misleading… and therefore illegal. For example, although potatoes are gluten-free, making a “Gluten-free” claim on a bag of potatoes would be considered misleading. Potatoes do not contain gluten, and never have. If a producer claims that their potatoes are gluten-free, they create an erroneous impression that other potatoes on the market contain gluten. The claim confers a false advantage and is therefore illegal.
Furthermore, claims may trigger specific legal requirements, such as:
- providing additional information on the label.
A claim about omega-3 fatty acids, for instance, triggers the mandatory declaration of omega-3 and omega-6 polyunsaturated fatty acids, as well as monounstaturated fatty acids, in the nutrition facts table.
- documenting the claim with analytical tests or audits.
This applies to claims such as “organic” and “raised without the use of antibiotics”.
- Some claims are actually trademarks, and may only be used with the authorization of the owner. Examples of such trademark owners are the Gluten-Free Certification Organization (GFCO), Vegan Action (vegan.org), Fairtrade Canada, the Whole Grains Council, the Non GMO Project Verified, etc.
- Although trademark registration asserts exclusive ownership, it does not justify any deceptive use. For example, a trademark such as “Nutribox®” would be considered a nutritional claim, which may be acceptable for food with significant nutritional value, but would likely be considered misleading on foods of poor nutritional quality.
- Claims can be subject to specific graphic requirements. These requirements are not always grouped in the regulations with the other claim requirements, and can therefore be easily overlooked.
Food manufacturers are responsible for the legal compliance of their labels
Food manufacturers that wish to promote their products with value-added claims must ensure their statements are not misleading. They are responsible for the legal compliance of their labels.
When labels are found to be deceptive, food manufacturers may be required to correct them immediately or at the next printing. Depending on the context, food labelling inspectors may even order manufacturers to recall their products from the market. This of course can translate into major expenses for the manufacturer and can seriously impact their reputation.
Food law and food labelling regulations are far more complex than meets the eye. Large food companies often have a Regulatory Affairs Department that handles their labelling needs. In smaller companies, this responsibility typically falls on a Quality Assurance or Production Manager who juggles many other responsibilities, thus increasing the likelihood of labelling errors.
Time and dedication are required to sift through the many technicalities and exceptions within food labelling regulations. Understanding the legal requirements can be challenging. To avoid the costly consequences of labelling errors, it’s always worth validating the legal compliance of your food labels with experts in the field.
ACC Label, a Canadian food labelling consulting firm, has been a key partner of the food industry since 1990. Businesses from all over the world seek our guidance for their labelling needs. Should you need assistance, ask us for a quote by clicking here.