By Chrystie Siapkas (Lawyer) and Koula Politis (Senior Associate)
A study published earlier this month in the Medical Journal of Australia revealed a concerning truth. Melbourne researchers tested 256 commonly-bought manufactured “gluten free”-labelled products and reported that almost 3% of these products actually contained small amounts of gluten, meaning that these products did not comply with the Australian standards. The Australian standards require that foods labelled ‘gluten free’ contain no detectable gluten.
Apart from the obvious dangers this poses to consumers with gluten intolerance or Coeliac disease, for whom the complete avoidance of gluten is critical, this study should also raise alarm bells for food manufacturers who have compliance obligations.
The law
Australia’s food labelling and marketing standards are set by the Food Standards Australia and New Zealand (FSANZ) Code, whose ultimate goal is to ensure that Australia and New Zealand have a safe food supply and that consumers are well-informed.
The FSANZ Code sets standards for what information must be included on food labels. As gluten is considered an allergen, FSANZ requires that gluten-containing cereals are declared on product labels so that people with Coeliac Disease and cereal allergies can identify these products.
The FSANZ Code also tightly regulates the use of any “gluten free” or “no gluten” claim. Specifically:
- Standard 1.2.7 of the FSANZ Code requires that nutrition content claims in relation to gluten are made only to the effect that a food is gluten free, has a low gluten content, contains gluten or is high in gluten.
- Schedule 4 of the FSANZ Code stipulates that (to justify a “gluten free” claim) a product must contain no detectable gluten. This requires testing of the product and a finding of no detectable gluten.
- Schedule 4 also specifies that a “low gluten content” claim can only be made if the food contains no more than 20mg gluten per 100g of the food.
In addition to FSANZ, the Australian Consumer Law may also apply to any product labelled in a misleading or deceptive way. In particular, section 18 of the ACL states that “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
This section of the ACL covers conduct across a wide range of business activities including food labelling and marketing.
What does this mean for food manufacturers?
If you want to label a food product as being “gluten-free”, you need to ensure that it is exactly that; free of all detectable gluten. If a food product contains even only a small amount of detectable gluten, the making of a “gluten free” claim would be in breach of the FSANZ Code.
While FSANZ’s role is not to enforce the FSANZ Code, there are a number of specific food enforcement bodies that deal with food compliance issues.
The ACCC is also cracking down on misleading and deceptive claims on food labels. Earlier this year the Federal Court of Australia held that food manufacturer Heinz Australia made a misleading health claim through the use of imagery and wording on the label of its “Little Kids Shredz” products and as a result Heinz was fine $2.25 million (see our earlier blog about this case).
Food businesses need to take active steps to ensure that all labelling and claims about gluten are not only compliant with the Code, but also not susceptible to being considered misleading or deceptive to consumers under the Australian Consumer Law. Penalties for breach can be significant so food businesses need to be aware of their obligations.
Please don’t hesitate to contact a member of our team at food@khq.com.au for a review of your “gluten free” claims, labels or marketing material.
