By Amelia Edwards (Senior Associate) and Adrian Faelli (Lawyer)
A manufacturer of bottled alkaline water, endorsed by celebrity chef Pete Evans, has fallen foul of the advertising industry’s Food and Beverages Advertising and Marketing Communications Code (the Code).
But, given the nature of the claims made in relation to this product, is this an issue only just starting to come to the boil?
Ad Standards received several complaints about statements on the Alka Power website regarding various claims in relation to the product’s purported effects on the body. Section 2.1 of the Code provides, amongst other things, that:
“Advertising or Marketing Communications for Food or Beverage Products shall be truthful and honest, shall not be or be designed to be misleading or deceptive … with an accurate presentation of all information including any references to nutritional values or health benefits.”
Investigating the claims
The Panel engaged an independent health sciences expert to consider the following eight claims made on Alka Power’s website:
- That the product has a pH of at least 9.
- That many foods cause chronic over-acidity and that consuming Alka Power will treat acidosis, a serious medical issue.
- That use of the product will clean and nourish the blood and neutralize the acid base of the body, and that a study shows drinking alkaline water changes blood viscosity.
- That the product will deactivate pepsin.
- That the product will detox the pancreas.
- That the product will increase bone density.
- That sugar is one of the most acidic foods.
The manufacturer was clearly upset by the complaints, claiming to be targeted by “envious people, that have hidden agendas”, and provided reports from independent testing laboratories to support its response.
Five of the claims were subsequently deemed acceptable in that they were found to not be misleading to the consumer, had a reasonable basis or were “generic puffery”, such that the community would recognise they were not health claims.
The remaining claims considered by the Panel were:
- That the alkaline product will deactivate pepsin – an important digestive enzyme
- The Panel relied on the independent expert’s advice in this regard. Following a scientific literature review, the expert was unable to locate any direct evidence which supported Alka Power’s claim that alkalised water deactivated pepsin within the stomach. As Alka Power failed to provide any evidence to support this claim, the Panel concluded that it was “potentially misleading” to the consumer.
- That the alkaline product will increase bone density
- The independent expert concluded that consuming alkaline-forming food and beverages can assist in reducing bone resorption and maintaining bone density. Whilst there was scientific evidence to support the product’s claim it helped maintain bone density, there was a lack of evidence to suggest it increased bone density, leading the Panel to conclude the claim was misleading to consumers.
- That sugar is one of the most acidic foods
- Finally, the Panel concluded this statement was untrue following advice from the independent expert that both sugar and honey are in fact weakly alkalinising, and that neither are acidic.
The outcome & key lessons
Ultimately, the Panel decided these remaining claims were either untruthful or misleading, and were therefore in breach of section 2.1 of the Code.
As a result of the determination, Alka Power removed the claims in relation to pepsin deactivation and the acidity of sugar/honey. Alka Power also modified its claim in relation to bone density to read “may assist in maintaining bone density” rather than “increasing” bone density as originally claimed.
The determination serves as a helpful reminder for food and beverage businesses to ensure that all claims made in relation to their products (especially those in relation to nutritional or health benefits) have a proper basis, are not misleading or deceptive, and conform to the Australian Association of National Advertisers’ various codes.
If you need advice about your food or beverage products and their compliance with Australian advertising, marketing and labelling regimes, please don’t hesitate to contact us.
It may not end here
Arguably, Alka Power has escaped lightly. It was reprimanded by the advertising industry’s self-regulating Panel, and compliance with the Panel’s determinations are voluntary.
Significantly more serious sanctions can be imposed by the ACCC or state/territory health regulators regarding misleading claims under the Australian Consumer Law and the FSANZ Food Standards Code.
Further, the Therapeutic Goods Act may come into play, given some of the claims in relation to the product could be considered prohibited therapeutic claims about a food or unregistered therapeutic goods.
Accordingly, further scrutiny from the ACCC, state regulators, and the Therapeutic Goods Administration may be a distinct possibility.