Perception is everything
Inghams warned
In November last year, the Commerce Commission warned poultry producer Inghams over claims it was making about its chicken. Inghams stated in its advertising that its chicken products “[contain] no … GM ingredients”, “have no added hormones, GM ingredients or artificial colours”, and “contain no GM content and are not genetically modified”.
Inghams fed its chickens on soya feed that contained 13 per cent genetically modified soy. The chickens themselves were not genetically modified.
The Commerce Commission asked scientific expert Professor Jack Heinemann of Canterbury University to research whether chickens fed GM feed could contain GM ingredients in their meat. Professor Heinemann concluded that he was left “in no reasonable uncertainty” that GM plant material can transfer to animals exposed to GM feed in their diets or environment.
The Commerce Commission warned Inghams that it risked breaching the Fair Trading Act with its advertising claims. Significantly, the Commerce Commission doesn’t appear to have made this warning solely on the strength of Professor Heinemann’s report. In a press release, Commerce Commission Director Fair Trading Adrian Sparrow stated that someone buying a chicken promoted as containing no GM ingredients would not expect the chicken to have been fed on 13 per cent GM soya feed. “To consumers,” Mr Sparrow states, “perception is everything.”
The Australian approach
Australia’s equivalent of our Commerce Commission—the ACCC—has taken a similar approach. In 2004, the ACCC became concerned about claims by a poultry producer that its chicken was ‘not genetically modified’, when the chickens’ feed may have contained genetically modified soy. To the ACCC, consumer perception was paramount. The ACCC considered that the producer’s claim, although technically true, could be misleading if it suggested to consumers that the feed was GM free.
Clear regulation lacking
New Zealand law doesn’t regulate what proportion of an animal’s feed must be GM free for the animal’s byproducts to hold a ‘GM free’ claim.
Standard 1.5.2 of the Australia New Zealand Food Standards Code contains labelling requirements for food produced using gene technology. However, the Standard excludes from its definition of ‘food produced using gene technology’ any food derived from animals fed food produced using gene technology.
The recent Inghams case, and the Australian case in 2004, show that regulators will take a cautious line with the controversial area of GM food. While there is no ‘magic level’ of GM feed that could justify a ‘GM free’ claim, these cases suggest that the level should be zero or close to it. As always, think about what your product claim will lead your customers to expect.
Wider implications
The Inghams case is significant for any product where inputs into the production chain may not meet the claims made for the end product.
An example is the use of the term ‘organic’. Can an animal byproduct be referred to as ‘organic’ if a proportion of the animal’s feed is not organic?
Organic certification schemes have rules about what animal feed is permissible within the scheme. But what if your products aren’t certified?
You can still call your product ‘organic’, but think carefully about the production inputs, and whether they are all organic.
The consumer is king
The Inghams cases highlights the importance of consumer perception. The Commerce Commission will be heavily influenced by what they believe a consumer will expect from a product bearing a particular claim. This is true even in cases where clear regulation exists, and has been technically complied with.
Always take extra care making claims around controversial areas, such as genetic modification—especially where consumers may be motivated in their purchasing choices by health concerns for themselves and their families. This is where the consumer is most vulnerable, and the Commerce Commission most watchful.
An edited version of this article was published in FMCG, February 2010.
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Kate McHaffie
Senior Associate
