ACCC fines Uncle Tobys for false and misleading statements

medias[1]A reminder last week about the important role that consumer protection laws play in public health, and in holding – in this case – a food manufacturers accountable.

Cereal Partners Australia, which owns the Uncle Tobys brand, has paid a penalty of $32,400  imposed by the Australian Competition and Consumer Commission for allegedly making false and misleading statements about the protein content of porridge.

Porridge is a protein superfood (if you add milk)

Uncle Tobys labelled its oat porridge satchets as “protein superfood”*, adding in small print “*when prepared with [1/2 or 2/3] cup of skim milk”.

This was not enough to satisfy the ACCC, which felt that the dominant impression created by the packaging was that oats are high in protein, when this is not the case.

Provisions in the Competition and Consumer Act 2010 (Cth) permit the ACCC to issue an infringement notice as an alternative to taking court proceedings against a person or company for breach of a range of provisions in the Australian Consumer Law (ACL), as well as many other provisions in the Act itself.

[Reckitt Benckiser, which manufactures the painkiller Nurofen, was not so lucky: the ACCC launched Federal Court action against the company for misleading statements made about the ability of Nurofen products to target particular kinds of pain.  The Court has ordered that Nurofen products for back, period, migraine pain and tension headaches be removed from shelves].

The Australian Consumer Law in contained Schedule 2  of the Competition and Consumer Act 2010 (Cth) . It commenced operation on 1 January 2011. It is a single, national law covering consumer protection and fair trading. It contains revised versions of provisions in the old Trade Practices Act, as well as provisions from Fair Trading Acts at State level. It implements agreements reached by the Council of Australian Governments (COAG) in 2008 to create a single, national consumer law. The Australian Consumer Law applies at Commonwealth, state and territory level.

Part 3-1 of the ACL contains a range of provisions relating to false or misleading representations.

In issuing three infringement notices against Cereal Partners, the ACCC would appear to have been referring to breaches of provisions in ACL Part 3-1, such as s 29, which provides that a person must not, in trade or commerce, make false or misleading representations about the standard, quality or composition of goods purchased by the consumer.

By claiming through its advertising that oats are rich in protein, the ACCC took the view that Uncle Tobys was making false or misleading representations.

According to its nutrition panel, one serving of oats gives you 4.4g of protein: about 9% of daily recommended intake for a normal adult.

Uncle Tobys was fined $32,400; that’s 3 X $10,800 for each of the 3 infringement notices issued.

That’s probably a few minutes of revenues for Cereal Partners Australia, which is the Australian subsidiary of Cereal Partners Worldwide, a joint venture  between Nestle SA and General Mills Inc.

But it’s still 6,700 times larger than a 10 pack of oats satchets, which retails for $4.83 at Coles.

When trust is such a vital ingredient for sales and revenues, the publicity given to penalties provides part of the wider incentive structure for food manufacturers to avoid false and misleading statements in their advertising.

Complaint to the Advertising Standards Board

In addition to advertising Uncle Tobys oats as a protein superfood on its packaging, the manufacturer ran TV advertisements claiming that “UNCLE TOBYS Oats with milk are naturally rich in protein which helps build muscles… and they’re a superfood”.

A disgruntled viewer made a complaint to the Advertising Standards Board, which administers a number of voluntary codes , including the  AANA Food & Beverages Advertising & Marketing Communications Code (the “Food Code”).

Section 2.1 of the Food Code states 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 or otherwise contravene Prevailing Community Standards…”

The Board’s determination is here (0225/15).

The Board did not consider the term “superfood” was misleading; however, it did consider the advertisement breached section 2.1 because it suggested to a reasonable viewer that the product was naturally high in protein and failed to “make sufficiently clear that the product needs to be combined with milk to achieve the heightened nutritional content of protein”.

Unlike the ACCC’s action, the ASB’s determination received no publicity that we are aware of.

Wouldn’t it be clearer for consumers if food manufacturers focused their advertising on the nutritional characteristics of their product, rather than the nutritional features of quite separate products which – if consumed at the same time – can yield the nutritional benefits that are claimed?

 

Is your summer barbeque under fire? Chewing over the evidence on meat and cancer, and digesting the implications for regulation

Corned beef

The report

We’ve now had a few weeks to chew over the latest report linking food and cancer. Only this time it wasn’t a puff-piece in your Sunday newspaper, but an extremely comprehensive report from IARC, the World Health Organization’s International Agency for Research on Cancer. After a systematic review, IARC’s findings on the links between red and processed meat consumption, and cancer, were published in a press release and in The Lancet in late October (the full findings will be published later as a monograph).

In brief, red meat (“all mammalian muscle meat, including, beef, veal, pork, lamb, mutton, horse, and goat”) was classified as being probably carcinogenic to humans. Processed meat (“meat that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavour or improve preservation”) was classified as carcinogenic to humans. This means that, based on epidemiological studies, IARC found “convincing evidence” that meat products like ham, sausages, corned beef and biltong cause colorectal cancer.

Is meat the “new tobacco”?

Despite widespread media reporting that red and processed meats were now “as big a threat as cigarettes”, IARC did not actually make this comparison. Rather, it rated the strength of the evidence for the link as “Group 1”, meaning that the evidence is strong. So, the evidence linking tobacco and lung cancer is equally persuasive (Group 1) but this does not mean that eating meat is as dangerous as smoking. (This classification system is widely used in systematic assessments of nutritional evidence, including in the Australian Dietary Guidelines.)

Among those who denounced the comparison between eating meat and smoking cigarettes was Australia’s Agriculture Minister, Barnaby Joyce. Clearly, Mr Joyce has an interest in dampening any concerns that might threaten Australia’s reputation as a nation of meat-eaters – but in this case his assessment of the evidence was correct.

Regulation of bacon: the next frontier for public health law?

All in all, you may want to consider throwing a few extra vegetable skewers on your next barbeque. But more interestingly for our purposes, what – if any – are the implications for law and regulation?

As countries such as India and China undergo rapid social and nutritional transitions, the demand for meat will only grow – worldwide, meat-eating is correlated with greater wealth. This has environmental as well as health implications. Together, these implications may eventually prompt countries to take regulatory action.

While there are currently no jurisdictions that regulate the consumption of meat, the following developments may be indicative of an early trend:

  • “Meatless Mondays” or “meat-free Mondays” campaigns have been springing up around the world since the early 2000s. These tend to be grassroots civil society initiatives aimed at making vegetarian food more acceptable and available.
  • In 2009, the Belgian city of Ghent became the first in the world to proclaim an official “Veggie Thursday”.
  • The most recent iteration of the US government’s dietary guidelines, “MyPlate”, refers to daily “protein” rather than “meat” consumption.
  • In the early 1990s, Ghana introduced food standards setting maximum fat limits for pork, beef, mutton and poultry, in response to concerns about diet-related NCDs. While not a curb on meat consumption per se, this regulatory response does speak to some of the concerns raised by IARC.
  • Perhaps most tellingly, the food industry has come to recognise the commercial potential of vegetarian foods, which are now said to have “gone mainstream” after decades on the hippie fringe.

This is where the comparison with tobacco control may be more salient. The evidence linking tobacco to cancer was recognised by some governments as early as the mid-1950s, but the WHO’s Framework Convention on Tobacco Control was not enacted until 2003. Biltong regulation will no doubt require a similar fermentation period. But the mix of voluntary, regulatory and commercial developments above suggests that the goal of curbing meat consumption is not far-fetched or conceptually unappealing. More controversial perhaps will be the methods of achieving that goal. Warning labels on a pack of sausages? A tax on bacon? A ban on quarter-pounders? We’ll get back to you in 30 years…

Vodka and Vita Brits: will the alcohol industry successfully reverse the 10pm closing time for bottleshops, and other alcohol retail restrictions?

shutterstock_69600322
Credit: shutterstock_69600322

People sometimes say that the law is a blunt instrument.  Roughly translated, what they often seem to mean is “I don’t like this law”.

The comment holds a measure of truth.  When the law tries to address social problems, it can sometimes have unintended consequences.  For example, it may place regulatory burdens on innocent parties, or reduce competition.

Expect to see plenty of these objections as the Office of Liquor, Gaming & Racing moves to the next stage of its review of the 10pm curfew on take-away liquor sales across NSW.

 

10pm curfew for bottle shop sales in NSW

The 10pm closing time  for bottle-shops and other take-away retail outlets was introduced in 2014.  It was one of a number of measures introduced by the NSW Liberal government in response to “one-punch assaults” and alcohol-related violence.

Of all the measures introduced, the 10pm closing time is perhaps the most vulnerable to being rolled back, although achieving this will require legislative change.

A mere 7 submissions were received during the consultation process on the impact of the restrictions in regional NSW.  However, in 2016 when the review considers the impact of the 10pm sales curfew in Sydney metropolitan and surrounding areas, expect to see many more.

A summary of the NSW government’s “one-punch” reforms will appear in a subsequent post.

 

Liquor sales in convenience stores and supermarkets

Other retail restrictions on the retailing of alcohol are also under pressure.

The Australian Government’s Competition Policy Review  (the Harper review) was released in March 2015.  Panel members recognised that alcohol is different from cornflakes, washing powder and orange juice (pp 145-6), and that policymakers should not be prevented from pursuing harm minimisation objectives.  However, they also cautioned that liquor laws should not benefit particular competitors or classes of competitor.

In NSW, certain kinds of business are prevented from holding a packaged liquor licence.  These include general stores (mixed businesses with a floor area of 240 sq m or less), take-away food shops and service stations.

Exceptions apply to general stores in localities where there is no other take-away liquor service reasonably available to the public.

The Australasian Association of Convenience Stores argues (Harper review, p 147) that these restrictions make it harder for its members to compete with Coles and Woolworths – which locate the alcohol retail chains they own adjacent to their supermarket premises.

As Wardle and Chang  show, supermarkets do treat alcohol like cornflakes, giving shoppers hefty discounts for alcohol purchases from co-located alcohol stores.

Buy a banana for $1, as these researchers did, and your sales receipt could give you an unprompted wine discount of $19.99.

But why not sell alcohol in supermarket aisles, stocking a selection of red wine with the pasta sauce, perhaps?  And if convenience stores and service stations can sell cigarettes and lottery tickets, why can’t they sell booze as well?

 

Vodka and Vita Brits?

At the level of policy, the contest over retailing regulation is ultimately about whether we see beer as no different to breakfast cereal, and vodka as no different to Vita Brits, or whether we see alcohol as “no ordinary commodity”  because of its mind-altering effects, and because it is so clearly associated with a heavy burden of preventable injury and disease.

Current retailing laws reflect the assumption, at least hitherto, that although it is a consumer product, alcohol should not be ubiquitous, and that limits on accessibility play a role in reducing the negative social consequences of harmful levels of consumption.

Liquor laws in NSW do not prohibit supermarkets from selling liquor within the store.  They merely provide that the liquor sales area must be “adequately separated” from the rest of the store.

Relying on this, Aldi has recently begun selling  alcohol from dedicated zones within the interior of its stores.

Coles and Woolworths are watching closely.

Melbourne’s Herald Sun reported recently that the NSW government is considering plans to allow alcohol sales to be integrated into supermarket aisles.  The story is illustrated by a photo of crates of beer in a Russian supermarket.

Russia may not be the smartest model for retail alcohol regulation, given that a quarter of Russian men are dead before they reach 55, mostly due to alcohol.

In Australia, according to the National Drug Strategy Household Survey, in 2013 almost 5 million people – more than 25% of those aged 14 years or older – reported being a victim of an alcohol-related incident (including verbal abuse, physical abuse, or being put in fear) during the previous year.

Nearly 18% of people aged 18-24 reported being at very high risk of alcohol-related harm (defined as 11 or more standard drinks) at least once a month.

 

One-punch retail alcohol reforms: why did the NSW government act?

This video (0:58) shows the moment a Sydney bouncer was king-hit in an unprovoked attack by an intoxicated man refused entry to Bar 333 in George St.

Faidy Taiba suffered a traumatic brain injury and was in a coma for 19 days.  His wife spoke of the “ripple effects” of his injury on her family.

These ripple effects are important.

Beyond the pain and physical injury to the assault victim, the ripple effects of alcohol-related violence may include:

  • The costs of rehabilitation;
  • The opportunity costs: not only the lost earnings of both victim and perpetrator, but the lost earnings of the spouse, mother or family member who goes part-time or gives up their job to care for the victim;
  • The perpetrator ends up with a criminal record, despite wearing a suit in court as the defence barrister explains that they come from a really good family, and that this was an isolated incident;
  • There may be longer-term consequences as well. They will vary from case to case. For example, the perpetrator (or equally the victim) may respond to the life-jolt they have experienced with substance abuse, or they may slide into depression. These, in turn, will carry other longer-term consequences. Relationships may be lost. Careers ended, life trajectories forever altered.

According to one estimate, the societal costs of alcohol-related problems in 2010 were in excess of $14 billion.  Ultimately, the personal costs can never be quantified.

And this pattern is repeated over and over again.

According to the NSW Bureau of Crime Statistics and Research, “ there were 913 police-recorded incidents of grievous bodily harm, 10,427 ambulance calls for assault and 14,106 emergency department presentations for acute alcohol illness in the [Sydney] CBD” over the period 2004-2013.  This was prior to the government’s 2014 “lock-out” laws.

Between 2010 and 2013, although the proportion of those experiencing physical abuse by persons who were intoxicated remained constant, the number of persons experiencing physical abuse rose from 1.5 million to 1.7 million (NDSHS 2013, p 45).

According to the Australian Institute of Health and Welfare, at least once a year, 45% of Australians drink so much on a single occasion that they are at risk of an alcohol-related injury.  More men binge drink than women (58% vs 32%) (Australia’s Health 2014, p 164).

That’s excluding the risk of chronic harm caused by excess drinking, which affects one in five Australian adults.

Let’s include this evidence in the conversation when we talk about alcohol retailing restrictions.  Current laws may appear a bit less blunt than the pro-alcohol lobby would have you believe.

The role of law in noncommunicable disease prevention: an easy-to-digest explanation

Public health lawyers like me are often challenged on their claim that the law can (and should) play a significant role in the prevention of noncommunicable diseases (NCDs). Future Leaders, an Australian philanthropic organisation, has recently published an open-access, clearly written book on NCD prevention called Dancing in the Rain: Living with NCDs, which includes a chapter by Professor Larry Gostin and I on the role of law in NCD prevention. Here we describe the growing global governance framework for NCD prevention, and the range of new initiatives that governments around the world are using to combat NCDs, including measures that draw upon law and regulation. We contrast this widespread global innovation with Australia’s failure to take decisive action in relation to the prevention of obesity and excessive alcohol consumption, asking why Australia has ended up as a ‘laggard’ in these areas when it remains the world leader in tobacco control. This is an easy-to-digest introduction to the interaction between law and NCD prevention, and it sits alongside a number of other insightful chapters from prominent Australian activists and academics, including Dr Alessandro Demaio, Professor Fiona Stanley, and Professor Rob Moodie.

Dancing in the Rain is accessible in full via the following link: http://bit.ly/1QoDyLS

Lifetime achievement award for Professor Lawrence Gostin

Professor Lawrence Gostin, the Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University, and a longtime friend of Sydney Law School and the Centre for Health Governance, Law & Ethics, has been honoured by the American Public Health Association’s Law Section for “Lifetime Achievement in Public Health Law ”.

Professor Gostin teaches a popular unit, Global Health Law, in Sydney Law School’s Master of Health Law program.

In his short acceptance speech, Professor Gostin reflected on how the field of public health law has flourished over the course of his professional career, and of the challenges and opportunities for younger scholars.

CHGLE event photo
Professor Lawrence Gostin (centre), seen here at a Sydney Law School event in July 2015, standing with: L to R: Dr Belinda Reeve (Sydney Law School), The Honourable Michael Kirby AC CMG, Ms Alexandra Phelan (SJD candidate, Georgetown University Law School), and Professor Glenn Cohen, Harvard Law School and Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics)