
Legal Issues in Eco-labelling and Packaging of Foods by Joe Lederman and John Gao © Lawmedia Pty Ltd, December 2007 FoodLegal Australian Food Lawyers and Consultants In a speech at a food labelling conference held in Sydney in November 2007, the new CEO of Food Standards Australia New Zealand described the use of eco-labelling as a growing trend. Consumers are becoming more and more aware of environmental issues such as “food miles” and “carbon footprints”. While FSANZ has indicated that it may consider proposals for a Standard in relation to eco-labelling, it would not be a priority issue. This article, nevertheless, looks at the restrictions under current law in relation to eco labelling. (This article was updated in January 2008 subsequent to first publication). While some forms of eco-labelling of foods are well regulated such as the recycling of certain forms of food packaging, a recent trend has seen the development of new concepts such as food miles and carbon footprints which may soon become a part of food labels in Australia. “Food Miles” The concept of “Food Miles” was first coined by Tim Lang, a Professor of Food Policy at City University, London. The concept of “food miles” show consumers how far a food has travelled before it reaches the consumer. The aim is to provide consumers with information on the possible ecological, social and economic effects of the food being eaten. There is no universal or recognised standard way in which such food miles are to be calculated. There is no rule that states how food miles are to be calculated for a food that is a mixture of a variety of different ingredients. For example, a steak might be one single ingredient sourced from a particular farm 100km away, but a salad is a mixture of ingredients. Such ingredients could be sourced from several different farms, and if the food miles system was to truly show the consumer how far a food has travelled and to reflect the ecological impact of the food, the distance travelled for each ingredient would need to be added together. Also, if food miles are to be applied to processed foods, how are the food miles to be worked out for ingredients such as the salt, sugar or preservatives? While there is no recognised Standard for “food miles”, there may still be legal restrictions on the use of the concept. Under Sections 52 and 53 of the Trade Practices Act, representations made or conduct undertaken must not be false, misleading or deceptive. The test for whether or not a representation made is likely to be considered false, misleading or deceptive under Sections 52 and 53 is whether or not the reasonable consumer would consider the representation false. The problem with the concept of food miles is the question of what is to be included in the calculation of the food miles. If the true aim of the concept of informing consumers of the ecological, social and economic impacts of the food is to be realised, any form of travel by any part of the product ought to be included in the calculation. In the example above, a salad of vegetables sourced from several different farms each located 50 km from the consumer but claiming “food miles” of 50 km may still be potentially misleading if the food has in fact travelled more than 50 km because of the total of all distances travelled. Therefore, the concept of "food miles" is vague and uncertain and potentially misleading depending on the definition that is being used. ACCC may well look into this area and to explore the consumer perceptions as to what is misleading. “Carbon Footprint” The concept of the “Carbon Footprint” is similar to “food miles” except that it also considers the total amount of carbon dioxide produced in the process of producing the food. In other words, it measures an indicator that is not confined to the distance travelled, but also considers the the mode of transport as well as machinery and energy used in the manufacture of the food product. The carbon footprint is some kind of measure of the carbon used in producing and supplying the product. There are also claims that the carbon footprint can be reduced by offsets such as contributing to funds aimed at reaforestation and clean energy. Unlike “food miles”, “carbon footprint” does have more widely-recognised methods of calculation and in fact a carbon footprint labelling system was introduced in the UK in March 2007 by the Carbon Trust. In Australia, the Carbon Reduction Institute has introduced “NoCO2” and “LowCO2” certification labels. Other eco-labelling issues and requirements One existing legal labelling requirement specifically aimed at have an environmental effect is the regulatory framework provided for the South Australian Environmental Protection Act and corresponding Regulations which require that the packaging of all beverage products sold in South Australia. These must be approved by the South Australian Environmental Protection Agency and all beverage product labels must carry the monetary refund statement as prescribed by the law. In Australia, there are also voluntary standards for “recyclable” and “biodegradable”. We discussed the issues of “recyclable” and “biodegradable” packaging in the October 2006 issue of the FoodLegal Bulletin.We expect further developments and new laws that will impact on plastic packaging in the near future. For more advice on packaging and labelling issues, please contact Joe Lederman or John Gao both of FoodLegal on (03) 9606 0022 or visit http://www.foodlegal.com.au. This is general information rather than legal advice and is current as of 17 Dec 2007. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.

Legal Issues in Eco-labelling and Packaging of Foods

by Joe Lederman and John Gao © Lawmedia Pty Ltd, December 2007
FoodLegal
Australian Food Lawyers and Consultants

In a speech at a food labelling conference held in Sydney in November 2007, the new CEO of Food Standards Australia New Zealand described the use of eco-labelling as a growing trend. Consumers are becoming more and more aware of environmental issues such as “food miles” and “carbon footprints”. While FSANZ has indicated that it may consider proposals for a Standard in relation to eco-labelling, it would not be a priority issue. This article, nevertheless, looks at the restrictions under current law in relation to eco labelling. (This article was updated in January 2008 subsequent to first publication).

While some forms of eco-labelling of foods are well regulated such as the recycling of certain forms of food packaging, a recent trend has seen the development of new concepts such as food miles and carbon footprints which may soon become a part of food labels in Australia.

“Food Miles”

The concept of “Food Miles” was first coined by Tim Lang, a Professor of Food Policy at City University, London. The concept of “food miles” show consumers how far a food has travelled before it reaches the consumer. The aim is to provide consumers with information on the possible ecological, social and economic effects of the food being eaten.

There is no universal or recognised standard way in which such food miles are to be calculated. There is no rule that states how food miles are to be calculated for a food that is a mixture of a variety of different ingredients. For example, a steak might be one single ingredient sourced from a particular farm 100km away, but a salad is a mixture of ingredients. Such ingredients could be sourced from several different farms, and if the food miles system was to truly show the consumer how far a food has travelled and to reflect the ecological impact of the food, the distance travelled for each ingredient would need to be added together. Also, if food miles are to be applied to processed foods, how are the food miles to be worked out for ingredients such as the salt, sugar or preservatives?

While there is no recognised Standard for “food miles”, there may still be legal restrictions on the use of the concept. Under Sections 52 and 53 of the Trade Practices Act, representations made or conduct undertaken must not be false, misleading or deceptive. The test for whether or not a representation made is likely to be considered false, misleading or deceptive under Sections 52 and 53 is whether or not the reasonable consumer would consider the representation false.

The problem with the concept of food miles is the question of what is to be included in the calculation of the food miles. If the true aim of the concept of informing consumers of the ecological, social and economic impacts of the food is to be realised, any form of travel by any part of the product ought to be included in the calculation. In the example above, a salad of vegetables sourced from several different farms each located 50 km from the consumer but claiming “food miles” of 50 km may still be potentially misleading if the food has in fact travelled more than 50 km because of the total of all distances travelled. Therefore, the concept of "food miles" is vague and uncertain and potentially misleading depending on the definition that is being used. ACCC may well look into this area and to explore the consumer perceptions as to what is misleading.

“Carbon Footprint”

The concept of the “Carbon Footprint” is similar to “food miles” except that it also considers the total amount of carbon dioxide produced in the process of producing the food. In other words, it measures an indicator that is not confined to the distance travelled, but also considers the the mode of transport as well as machinery and energy used in the manufacture of the food product. The carbon footprint is some kind of measure of the carbon used in producing and supplying the product. There are also claims that the carbon footprint can be reduced by offsets such as contributing to funds aimed at reaforestation and clean energy.

Unlike “food miles”, “carbon footprint” does have more widely-recognised methods of calculation and in fact a carbon footprint labelling system was introduced in the UK in March 2007 by the Carbon Trust. In Australia, the Carbon Reduction Institute has introduced “NoCO2” and “LowCO2” certification labels.

Other eco-labelling issues and requirements

One existing legal labelling requirement specifically aimed at have an environmental effect is the regulatory framework provided for the South Australian Environmental Protection Act and corresponding Regulations which require that the packaging of all beverage products sold in South Australia. These must be approved by the South Australian Environmental Protection Agency and all beverage product labels must carry the monetary refund statement as prescribed by the law.

In Australia, there are also voluntary standards for “recyclable” and “biodegradable”. We discussed the issues of “recyclable” and “biodegradable” packaging in the October 2006 issue of the FoodLegal Bulletin.We expect further developments and new laws that will impact on plastic packaging in the near future.

For more advice on packaging and labelling issues, please contact Joe Lederman or John Gao both of FoodLegal on (03) 9606 0022 or visit http://www.foodlegal.com.au.

This is general information rather than legal advice and is current as of 17 Dec 2007. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.