Do vegan & vegetarian marketing descriptors need regulating?


Posted By on 8/03/22 at 2:21 PM

The release of a recent Senate Committee report reveals what the current government thinking (and prevailing politics) could mean for the future of marketing of plant-based meat alternatives. This article examines the recommendations of the report and assesses the potential impact if the recommendations were adopted.

Building market pressure finds an outlet

The growth over the past few years of plant-based food products has been incredible, driven by different types of consumer demand – demand for a perceived “healthier” option to traditional animal-based products; demand for vegan products based on animal welfare concerns; demand for products that supposedly have less of an impact on the environment and are more sustainable than the farming of animals.

Whether any of these consumer demands are truthfully fulfilled by plant-based products remains up for debate. What is not up for debate is how under attack traditional livestock farmers and meat processors currently feel, given that a lot of the growth in vegan and vegetarian alternatives to meat products come at their expense in terms of market share.

An example of this frustration was expressed in January 2021 when Coles Supermarket put out a newsletter stating that “Not only is eating less meat good for the environment – and your budget – but it can also have a positive impact on your health”. The backlash was immediate, with the promotion amended 11 days into a planned 31-day promotion.

This frustration has found an outlet for the meat industry: its lobbying efforts resulted in the Rural and Regional Affairs and Transport Legislation Committee (the Committee) self-referring an inquiry considering meat branding. Broadly, the inquiry considered whether the current Australian regulatory framework provides sufficient benefit and clarity to consumers in relation to the labelling of plant-based, cultured, and blended proteins (alternative meats). The Committee specifically considered whether descriptors implying a connection with meat products, such as whether products could be considered an alternative to “lamb” or “beef” or whether products can describe themselves as “mince” or a “cut” or a “sausage” if they are plant-based. Such questions have been considered by the Committee in its report “Don’t mince words: definitions of meat and other animal products”. The report was tabled in parliament on 24 February 2022 and can be found here.

Is there actually a problem?

The main issue the Committee seemed to seek to address – beyond addressing the concerns of the “traditional protein” industry – is whether consumers are confused (and potentially misled) by the use of animal descriptors. The Committee heavily referenced a Pollinate survey finding 64% of consumers expecting meat to be in products described as meat or having pictures of animals on it. However, this survey was criticised as choosing only four products that were not representative of the market nor were they put into the context in which they would be purchased at a store.

In contrast to the Pollinate survey, separate research conducted by Colmar Brunton and Food Frontier found only 9% of customers had mistakenly purchased the wrong product. This research was aligned with Woolworths Group’s national survey of its own customers.

While not research evidence, the Australian Competition and Consumer Commission (ACCC) as the enforcement agency responsible for protecting consumers from misleading representations -as well as a number of multinational food producers (including Nestle, Impossible Foods, Beyond Meat and Deliciou) – stated that they had not received any complaints of consumers being confused.

The position of the ACCC and plant-based product suppliers is understandable, given that plant-based products do not want to confuse to consumers as to their products containing meat. The unique selling proposition of plant-based products is that they do not contain any meat whatsoever, and so the marketing message intended to be conveyed to consumers is that their products are a meat substitute, not meat.

The Committee listed a number of individual complaints of consumer confusion; albeit all from the meat industry, and none from food retailers or other food suppliers or even the peak lobby group for the entire food industry – the Australian Food & Grocery Council (the AFGC).

Notwithstanding the above, the Committee (largely comprised of Liberal and National politicians) stated:

Whilst the committee is supportive of both the traditional and plant-based protein markets, it is strongly opposed to the appropriation of animal protein descriptors and animal imagery by the plant-based protein sector. The committee sympathises with the animal protein sector’s concerns and agrees that the current regulatory framework is inadequate. This inadequacy is demonstrated by the labelling and marketing practices of plant-based products, which are piggybacking upon the significant investment made by the animal protein sector to develop brand recognition by consumers.

The Committee’s comments appear to almost be the definition of “begging the question”, where a lack of complaints is seen to be evidence of under-reporting, rather than evidence that there is no problem. In fact, in response to the AFGC identifying a lack of peer-reviewed evidence in this space, the Committee stated:

The committee respectfully disagrees with the argument that further research is needed into the matter.

The Committee’s recommendations

While the Committee’s comments and findings appear to be biased and lacking in nuance, the food industry must nevertheless brace itself for the recommendations in the Report. The Committee made a series of recommendations, that included:

  • the development of a mandatory regulatory framework for the labelling of plant-based protein products;
  • ACCC review of the placement of plant-based protein products in retailers’ stores, including online platforms;
  • the application of a mandatory regulatory framework for cultured meat products, in preparation for the introduction of those products onto the Australian market;
  • that Food Standards Australia New Zealand (FSANZ) develops guidelines to inform labelling and marketing practices for manufacturers of plant-based protein products;
  • ACCC development of a National Information Standard that defines and restricts the use of meat category brands to animal protein products; and
  • FSANZ initiates a review in consultation with industry of section 1.1.1—13(4) of the FSANZ Code and recommend exempting its application to named meat, seafood and dairy category brands.

The fact that legal provisions already exist to protect consumers from misleading and deceptive conduct was not seen as sufficient by the Committee, which in fact saw a lack of action taken by the ACCC as evidence of systemic enforcement problems and underreporting:

Due to underreporting of cases of consumer confusion, the committee is not convinced that this issue is accurately presented by the ACCC, nor by research presented by the plant-based protein sector.

What could the future hold?

Currently, the recommendations are tabled before Parliament and so which – if any – of these recommendations are implemented (in an election year) remains to be seen.

Potential changes to food regulation

The Committee appeared to misunderstand both the legislative purpose of the specified representations in the Food Standards Code as well as FSANZ’s role within the food regulatory framework. The specified names provision actually restricts use of meat names and descriptors on non-meat products (a desired outcome of the Committee) unless the context makes it clear that the product in question is not meat. In other words, that consumers are not confused or mislead.

So not only is the ACCC not receiving complaints, nor are the food regulators of each State and Territory in Australia.

While FSANZ is not an enforcement agency, it can publish interpretative guidelines to the Code. However, guidelines focussed on food marketing have been steadily whittled down in recent years (such as the removal of the User Guide on Representations About Food), leaving such enforcement interpretation to the ACCC.

Potential changes to consumer protection legislation

Any review of the Food Standards Code will enter the FSANZ workplan, take years, and have to be subject to a regulatory impact review (which could be less biased than the Committee’s findings).

A more likely outcome from the Committee’s recommendations could be the creation of an Information Standard under the Australian Consumer Law specifically on the marketing of plant-based products. This was the regulatory approach taken by the Federal Department of Industry with the recent Country of Origin Information Standard (its development also driven by the National Party in face of perceived consumer confusion with little evidence). Using this delegated legislative pathway would allow the government of the day to legislate without parliamentary debate and without needing the support of the regulator which will end up enforcing the Standard – the ACCC. As was the case with the Country of Origin Standard, consumers will likely end up being just as confused, but confused in a different manner.

Of more import, Australia’s involvement in the emerging industry of plant-based food products could be crippled if alternative meat providers are not permitted to pitch their products as plant based “meat”. If laws already exist to protect consumers; and the marketing of plant-based products is not causing consumer detriment (but is in fact responding to growing consumer demand); then is it not clear why it is necessary to further or specifically regulate the branding of such products other than for political reasons?

This article was written by Thomas Salzano (Lawyer) and Charles Fisher (Principal Solicitor).

KHQ Lawyers - Charles Fisher

Charles Fisher Principal Solicitor

Since completing his Bachelor of Laws and Legal Practice and Bachelor of Arts in 2006, Charles has spent the entirety of his legal career staring at the Food Standards Code (among many other pieces... Read More