The rise of nutritional branding

“As long as this is the case, these opportunities will be used to maximise money, and health won’t really get a look in.” Neal is concerned that consumers can get what he describes as “enormous quantities” of salt, saturated fat and sugar from foods you wouldn’t think were necessarily high in these unhelpful nutrients. 

The primary source of sodium in the Australian diet, for example, is from salt added to manufactured foods. 

Take Weight Watchers’ frozen ready meals as one example of a salty trap. The Australian Nutrient Reference Values set the adequate daily intake of sodium at 920mg, yet the average sodium content of its meals comes in at 892mg, with some options clocking up more than 1000mg. When CHOICE approached Weight Watchers about this, they told us the sodium content of their meals should not be a problem because they’re spruiked to weight-loss members as an “occasional choice” rather than a healthy, everyday option. 

However, consumers who aren’t members but who can purchase these meals in a supermarket are not necessarily armed with this advice. Recommendations of the Labelling Logic report, commissioned by the Forum on Food Regulation in early 2011, called for regulation of the use of words that suggest health implications and closer scrutiny by authorities of trademarks that infer health implications that would otherwise be prohibited under the Food Standards Code. 

While indicating support for both these recommendations, the federal government has also recognised a need to investigate trademark law further, aiming to improve relationships between food and trademark regulators to ensure problematic trademarks are stamped out. Melanie McGrice, dietitian and owner of Health Kick Nutrition, says the grey regulatory area needs to be tightened to eliminate some “sneaky” behaviour.

Too easy being green

As shoppers become more savvy about the environmental impacts of consumerism, businesses are finding ways to capitalise – but there is a difference between tapping into a general environmental awareness and greenwashing for financial gain. Research has found the significant trust consumers place in eco- and enviro-brands has a positive effect on purchasing behaviours and is likely to direct consumers towards products that claim to be less harmful to the environment than their alternatives. Consumers are also often willing to pay a premium for these purchases.

“Fresh”, “safe” and “natural” are trigger words generally shared by products that claim to be good for the environment and those that claim to be good for your health, and it is this link that marketers of fastmoving consumer goods are increasingly coming to rely on. There is no requirement to prove environmental awareness in order to obtain a trademark that suggests this, nor are companies restricted from implying products that are good for the environment are also good for you.

Of the products with eco- and envirobrand names we looked at, many offer poor nutritional content despite their advertised connection to healthiness. Mother Earth Baked Oaty Slices spruik their lack of artificial colours as well as being a high source of fibre and wholegrain cereals, but they’re also high in saturated fat. Similarly, EnviroKidz Organic Koala Crisp and Gorilla Munch Cereals both have added sugar. A number of the Back to Nature and Goodness Superfoods Cereals are also high in sugar.

Tapping into the “free-from” craze, Freelicious Crackers are cooked in palm oil, which is high in saturated fat, as well as processed thickener and emulsifiers. Also available in health food shops, the Loving Earth Organic Activated Almond & Purple Corn Raw Dark Chocolate Bar is 25% saturated fat; CHOICE considers any food containing more than five per cent to be high in saturated fat.

Kumudu Ramasundara, the acting general manager of the trademarks and design group at IP Australia, says that while the trademarks registrar has the power to approve or deny trademarks, control of the use of these trademarks falls with someone else – in the case of food products, Food Standards Australia NewZealand (FSANZ), which is enforced by individual state authorities.

FSANZ is in the process of drafting the Standard for Nutrition, Health and Related Claims. The draft standard aims to ensure there is adequate scientific evidence for new health claims.

Under the current transitional standard, a package must not include the word “health” or any derivatives of this word in conjunction with the name of the food. But it is likely a product such as Uncle Toby’s HealthWise cereal, which has added sugar, can dodge this requirement by including the word in a trademark. The transitional standard fails to define just how closely linked words must be to “health”. 

Products such as preserved olives sold under the Always Fresh trademark or the mix of fresh and reconstituted local and imported orange juice sold under The Daily Juice Company banner, will not be covered by the new standard.

Federal trademark law trumps the application of food standards, which is carried out by individual state food authorities. Food labelling law expert Chris Preston says it is likely provisions in the current standard that rule against such trademarks are inconsistent with the trademark law, potentially making for “tremendous confusion”, especially when it comes to the words he describes as the unholy trinity – pure, fresh and natural.

“There is a sense that trademarks enjoy a special privileged status, and although this argument has its merits, we don’t know because there is no case law around this area,” Preston says. Despite this, he argues it wouldn’t be smart for new companies to embark on a marketing strategy that relies on a trademark that can’t be substantiated, because there are still avenues to pursue misleading conduct through the Australian Consumer Law.

The CHOICE verdict

It is important to remember that just because the brand name of a product suggests that it’s healthy or natural doesn’t mean it always is. Supermarket sections and, sometimes, entire aisles are dedicated to products promoted as “healthy”.

Coles and Woolworths have dedicated health food aisles in store and online, and while these aisles contain some healthy foods, such as nuts and dried fruits, they also have products that should be treated as more of an indulgence than a health food. 

CHOICE is part of a government-led process to develop a front-of-pack labelling system that would help consumers know at a glance whether or not a product is healthy, cutting through these claims.