Heart Foundation Tick criteria re-assessed
By Joe Lederman
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, April 2009
In late February 2009, the National Heart Foundation of Australia publicly released more details about its eligibility criteria for foods being considered for its Heart Foundation Tick program/logo endorsement. In the initial public release, the criteria for 5 out of 55 food categories formulated by the Heart Foundation were released. Our article of 2,900 words considers whether the Tick program can be said to satisfy compliance concerns in relation to the requirements of the Trade Practices Act and the Australia New Zealand Food Standards Code.
The Heart Foundation Tick is a public health program that aims to improve the nutrition of the foods that Australians eat. Foods that bear the Tick logo on their packaging and promotional material are understood by consumers to have met certain nutritional criteria devised by the Heart Foundation Tick program.
According to surveys, it is already understood by consumers that the Heart Foundation Tick program does not promote the view that heart health will be improved by the Tick endorsed foods. However, according to the Heart Foundation, a food product with its ‘Tick’ makes a representation to consumers that the product is either lower and/or higher in certain food components (e.g. lower in sodium, higher in fibre) when compared with other foods in the same food category. For example, cheese that has a Heart Tick is said to represent a healthier choice compared to other cheeses.
According to the Heart Foundation, the criteria for usage of the Tick on a food product have been reviewed and will continue to evolve having regard to such factors as changing food technology and the changing eating habits of Australians. For example, because Australians increasingly eat away from home, the Heart Foundation Tick program has been broadened to apply to a range of takeaway fast foods and other restaurant meals.
In its initial public release of the Heart Foundation Tick program criteria, the food categories were: bread, breakfast cereals, cheese, sweet biscuits, nut and seed bars. However, some wholegrain breakfast cereals (e.g. whole oats) have been excluded from the breakfast cereals category. The Heart Foundation has segregated whole oats and other plain wholegrains to a separate food category called “Grains – plain”.
While the reformulation of food products to provide healthier choices is one of the Heart Tick’s core principles and objectives, the existence of ‘healthier’ wholefoods with Heart Ticks (such as certain wholegrains or eggs) that cannot be reformulated becomes problematic. The Heart Foundation has given various wholefoods their own separate criteria for assessment. The Heart Foundation believes that by giving the Tick endorsement to some processed breakfast cereals that provide healthier reformulations, this means that the Heart Foundation Tick is encouraging food processing companies to improve the nutritional profiles of their foods, even when there might be more natural wholefood or less-processed products without a voluntary heart tick that might be healthier than the Tick endorsed products. There remains a legal risk that consumers will not understand this and, if so, they will be misled. Education is vital to avoid it being said that the Tick is misleading consumers. The Heart Foundation recognises the value of consumer education and the continuing role it plays.
Throughout the ACCC Food Descriptor Guideline (2006), the Australian Competition and Consumer Commission (‘ACCC’) emphasises the importance of reasonable consumers’ perceptions as the basis for determining whether a food descriptor or claim might be misleading or deceptive within the meaning of Section 52 of the Trade Practices Act or false and misleading within the meaning of Section 53 of the Trade Practices Act. The ACCC will take into account the ‘overall impression’ that a representation leaves in the mind of the reasonable consumer.
The Heart Foundation by reviewing and releasing its eligibility criteria for the Tick logo appears to be making a conscious effort to address the differences between what consumer perceptions are as to what the Tick logo represents – as against what the Tick logo actually means. Through its publicly-released criteria and its website, the Heart Foundation is obviously trying to explain the position more clearly, but it may well need to do much more than simply relying on some helpful website content.
What are consumers’ perceptions of the Heart Foundation Tick logo?
On its website, the Heart Foundation has provided consumer survey information and statistics on consumers’ perceptions of the meaning of the Tick logo and the beliefs and values of Australian consumers. When the website of the Heart Foundation was checked by FoodLegal during March 2009, the website mentioned the following 6 perception of consumers:
- More than eight in ten shoppers agree or strongly agree with the statement that companies pay a fee for the Tick to be on their products only when they pass nutrition criteria.*
- Two in three shoppers are aware that the Heart Foundation is not for profit. *
- Three in four Australians agree or strongly agree that foods with the Tick have been independently tested.*
- Almost nine in ten Australians (88%) agree or strongly agree that foods with the Tick meet standards for things like fat, salt and fibre.*
- The Heart Foundation Tick understands that Australians are looking for solutions, not lectures, to help them make better food choices on foods they like to eat.
- 88% want healthier choices from burger chains**
- 90% want healthier choices at chicken chains**
- 86% want healthier choices at pizza chains**
- 89% was healthier choices at sandwich chains**
- Overall, almost one in five (19%) McDonald's customers reported to have switched to a Tick meal - 48% of customers switched from a non-Tick meals to a Tick meals at point of sale, while 29% intending to buy a Tick meal bought a non-Tick meal (mostly 15-24 year olds)** - a difference of 19%.
*Instinct and Reason 2006 **Instinct and Reason 2007
It should be noted however that The Age newspaper in Melbourne on 17 February 2008 had reported the following:
“A survey of 1200 people, commissioned by the Heart Foundation in 2006, found 85% believed that foods with the tick were a healthier option compared with similar foods, and 76% agreed the tick influenced them to buy one product over another”.
The same newspaper article in the Age also reported:
“The ticked product, by SPC, has five times the saturated fat and more than 15 times the sodium of the product with no tick, by Heinz”.
It should be emphasised that the Heart Foundation does not intend the Heart Foundation Tick to represent to consumers that food products with the ‘Tick’ are the healthiest choice in a food category, but rather it appears to represent that the food product is at the healthier end of the spectrum of a food category. The Heart Foundation Tick is a voluntary scheme which food companies pay to use. Some food companies may decide not to pay for the endorsement even if the non-ticked product is “healthier” than a comparable product with a Tick logo.
Inconsistencies between the Heart Foundation Tick logo criteria and the Food Standards Code requirements
There are some significant differences between the Australia New Zealand Food Standards Code (‘Food Standards Code’) requirements and the Heart Foundation Tick logo criteria for the content level of certain things like for salt and sodium. For example, to make a claim of ‘low in sodium’ under the Food Standards Code, Standard 1.2.8 – ‘Nutrition Information Requirements’ requires the following:
“17 Claims in relation to salt, sodium or potassium content of food
(1) A claim to the effect that a food is low in salt or sodium content must not be made unless the food contains no more than 120 mg of sodium per 100 g of the food”.
By comparison, the criterion for the Tick (for bread and breakfast cereals) is that the food product must not contain more than 400mg of sodium per 100 g. In other words, the Heart Foundation Tick product appears to contain more than 3 times greater the amount of sodium that is permitted by Standard 1.2.8 of the Food Standards Code.
Given that, according to the Heart Foundation’s statistics, 88% of Australians agree or strongly agree that foods with the Tick meet standards for things like fat, salt and fibre, Australian consumers could well be misled by the representation of the Tick logo into buying a product that has not actually met the nutritional standard required for a voluntary “low in sodium” claim specified in the Food Standards Code.
The Heart Foundation admits that its own criteria will not always meet the requirements of the Food Standards Code:
“Criteria in each category will not always meet the Food Standards Code definitions of ‘lower’ or ‘low’, ‘high’ or ‘higher’. This is because for some foods, these definitions represent a target that is too far from the current average market levels and therefore;
- would not provide an incentive for reformulation;
- may present food technology challenges beyond the current ability of the market; and
- could dramatically alter the taste and therefore consumer acceptance.”
Despite this disclaimer and the possibility of inconsistencies with the Food Standards Code, the Heart Foundation is likely through its licence agreement to have obligated its licensees to comply with the Australia New Zealand Food Standards Code and other legal instruments.
Nonetheless, FoodLegal points out that from a Trade Practices Act perspective, the Heart Foundation Tick representation is driven by consumer perceptions of its meaning and queries whether the disclaimer by the Heart Foundation admitting the potential for higher sodium levels than those specified for a ‘low sodium’ claim is effective in changing consumer perceptions.
The Heart Foundation might take a view that maintaining the Tick as a representation on a product with high sodium is not considered to be a misrepresentation or misleading to a large percentage of consumers, irrespective of inconsistency with the Food Standards Code, so long as the licensee is not making any express voluntary claim for the product as to its sodium content. The Heart Foundation might, for example, say that most yellow cheeses have high sodium content even though these cheeses are considered healthy foods. On the other hand, some would argue that the Heart Foundation Tick has become a ‘privatised’ de facto Health Claims Standard (In fact, the proposed draft of a new Nutrition and Health Claims Standard 1.2.7 under FSANZ Proposal P293 had an express exclusion for endorsements from independent third party endorsing organisations such as the Heart Tick program). Reasonable consumers would therefore have come to expect that compliance with the Food Standards Code requirements being met by the Tick logo representation meant that a ‘healthier’ product with sodium was a ‘low sodium’ product. Yet this will not usually be the case as most processed foods still contain high levels of sodium.
What about all that sugar? - ‘Added sugars not a criterion’
In the criteria released for breakfast cereals, bread and sweet biscuits, ‘added sugars’ are expressly referred to as being excluded from the criteria. In the sweet biscuits and bread criteria, the Heart Foundation’s program makes the claim that:
“An ‘added sugars’ criterion reinforces the common misunderstanding that sugars from natural and added sources are inherently different”.
The Heart Foundation Tick program contends that there is a problem that it is difficult to distinguish through laboratory testing whether sugars are added or naturally occurring. The Heart Foundation Tick program says that ‘energy’ criteria are sufficient to address the potential for increased energy density through excess added sugars. Some might argue that while it might be self-serving to refer to the issue of there being “added sugar” or “no added sugar”, it is probably quite realistic to consider total energy values (kilojoules or calories) since the total addresses the sum of all fats and sugars. However, more transparency might be desirable so that consumers can understand how the criteria were being met when it comes to differentiating fats from sugars. Is there no difference health-wise?
Consumer Protection Audits
The Heart Foundation says that it regularly audits retail food companies whose products have the Tick logo. This is to ensure compliance with its criteria and to ensure the packaging and promotions for those products meet the Tick logo standards. We understand that Tick Quality Assurance Officers review for the Heart Foundation the conduct of the food companies and the nutritional components of food products. Additionally, we believe Tick approved foods are independently analysed to ensure they continue to meet the Heart Tick criteria. How often a product is audited depends on how at risk the food product is of failing to meet the criteria. For example, fruit is low risk because it is a wholefood and would be audited at a lesser frequency than a processed food.
Although the Heart Foundation polices the use of its Tick logo, governments have not looked closely at private certification criteria such as the Tick logo, or whether there is product brand name leverage by companies who gain a Tick logo endorsement for only a limited product range but gain broader kudos by brand extension.
Furthermore, given consumer perceptions, the food regulatory enforcement agencies and the ACCC, which share the aim of preventing misleading representations, may not wish to be accepting of an implied representation that food meets all the nutritional claims prescribed by the Food Standards Code in Standard 1.2.8, if this is not happening in actual fact.
Selection of Categories
Additionally, there may be a need to examine the manner of categorisation of foods. If processed foods are to gain a Tick logo, how will consumers view a healthier wholefood alternative that has no Tick but is deliberately separated off into a different category? Is the category selection itself being somewhat misleading?
The Cost of Use
The Heart Foundation maintains that the Tick logo is used on products that are the healthier option when compared to products in the same food category. Potentially, this may well mean that the Heart Foundation Tick program could potentially create additional numbers of categories so that more foods qualify in a fairly limited category.
To use the Tick logo, a company must pay an annual licensing fee once it meets the criteria. As mentioned earlier, this must have the consequence that some products for which the producers have made the commercial decision not to use the Tick logo but which are healthier than products with the Tick logo, may nevertheless be perceived by consumers as not being as healthy as those products with the Tick logo.
Leverage of the Heart Tick Logo by Brand Extension
The Heart Foundation says that the Tick logo can only be used in association with an approved product and that its use is granted on the basis that the Heart Foundation is satisfied that both the use of the Tick logo and the supply or marketing of the approved product will not be misleading or deceptive for the purposes of the Trade Practices Act. This is contractually enforceable under its licensee agreements.
However, there is a real risk that this might not always capture certain types and patterns of business conduct that might adversely affect the reputation of the Heart Foundation Tick program. There exists a real risk that the main brand or name of a takeaway or restaurant business can be promoted in conjunction with the Tick, instead of being confined to a specific meal range approved for Heart Foundation Tick endorsement. This may result in many consumers being misled or deceived into thinking that the Tick endorsement extends to the main brand itself and its broader product-range offering. The commercial spin-off for the benefit of the main brand would be undeserved and be likely to breach Sections 52 and 53 of the Trade Practices Act. In each case, enforcement action would need to be selectively assessed.
The ACCC’s position on Endorsements
The ACCC has always acknowledged that some endorsements can be misleading. Many consumers find that food packaging contains too much information for them to sort through. Endorsement schemes, such as the Heart Foundation Tick, can be a highly effective marketing tool and a handy way for consumers to quickly identify products that have characteristics catering to their needs. The ACCC has also acknowledged that consumers have grown to trust the Tick logo endorsement.
The ACCC has in the past taken action against food companies that have used imitative Ticks to the Heart Foundation Tick:
(1) GO Drew case (2004)
(2) Kellogg (1998)
On 17 January 2009 the Australian Broadcasting Corporation reported that the Coles supermarket group had agreed to remove its SmartBuy tick logo from its home brand products. The SmartBuy tick logo featured a prominent red tick against a white circular background, and was similar to the Heart Foundation’s Heart Tick, which had the converse colour scheme (a white tick against a red background). The Australian consumer organisation Choice has also been reported to have said that the removal of the Coles SmartBuy tick logo would remove any ambiguity and confusion that consumers might have, and would help consumers make better informed decisions when choosing healthy foods. Although this is not a current ACCC case, it is a good illustration of how food companies have used imitative Heart Foundation Ticks, and regulators are conscious of this issue.
The ACCC and other food regulators still need to monitor and review the compliance status of various implied representations being conveyed by businesses to consumers and the reliance of each party on interpretations put on the meaning of the Heart Foundation Tick. The Heart Foundation has conceded that its task, in reviewing its criteria for Heart Foundation Tick eligibility, is a difficult one and that further refinements may be necessary to evolve in the course of ongoing development of the Heart Foundation Tick program.
This is general information rather than legal advice and is current as of 12 Dec 2015. 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.