Pet Food Packaging: Legal Requirements in Australia

Sharon Givoni Consulting Intellectual Property

Starting a pet food business in Australia?

Over the years we have had a number of clients come in to see us to review their pet food packaging and to make sure it is compliant with all pet food labelling regulations and standards. One of the issues that can be problematic is when people make health claims on their packaging or make statements which are designed to sell the product better but could be construed as misleading. This article aims to give you a brief overview of what the main laws in this area are and what considerations you should be aware of.

Pet Food Packaging – What Laws Apply

When it comes to making statements on pet food packaging, the main laws that apply are the laws prohibiting misleading or deceptive conduct and a voluntary standard AS 5812:2017 (Manufacturing and marketing of pet food).

In terms of the first one, the relevant piece of legislation is Schedule 2 of the Australian Consumer Law under the Competition and Consumer Act 2010. This prohibits the making of false claims and misleading or deceptive conduct.

It is very easy to fall into the trap of making misleading or false representations and there can be a fine line in regard to what is considered a statement of fact versus mere puffery. Statements of fact need to be capable of being substantiated with sound resources. Google research or the opinion of someone who is not an expert in the pet food industry will not suffice. Examples of statements that need to be substantiated:

• 100% natural
• Nutritionist approved
• Better formula than all others
• Made with real bacon
• For a balanced diet

While there is nothing wrong with any of these statements in their own right, if they are challenged by a consumer, one of your competitors or the ACCC, this could be troublesome if you can not substantiate them.

Other statements that are problematic include:

• For a healthier dog
• For strong bones
• Healthy gut
• Smooth and Shiny Coat/hair
• Healthiest formula
• Vet recommended

These fall into the category of a therapeutic claim.

As mentioned above, in addition to the consumer laws, all pet food manufacturers and brands should be aware of the Australian Voluntary Standard 5812:2017 which you can find here.

For the purposes of pet food labelling the relevant section is Section 3 of the Australian Voluntary Standard 5812:2017 which outlines the requirements for labelling, marketing and nutrition.

This standard represents best practice for the safety of multi-ingredient, manufactured food for feeding to pets and on ensuring products are accurately labelled and do not mislead purchasers. The standard is intended to protect consumers and the public by providing for control over potential hazards to animal health that may be associated with pet food.

Puffery – What claims can I make

Puffery consists of representations, statements or conduct that exaggerates the attributes or characteristics of some product or service so much so that a reasonable person would not take it literally or seriously. Simply put, they are subjective statements that carry no quantifiable or verifiable meaning.

It can be compared with statements of fact which need to state the truth, cover the whole truth and nothing but the truth.

Below are a set of examples that could be considered puffery in regards to pet food packaging:

• Gourmet style
• Your pet’s favourite treat
• Eat smarter
• Unique Blend
• Special mix that will have your dog’s tail wagging for days
• Just the right formula to make your cat happy
• Your dog will go wacko for SCHMACKOS™

Statements in relation to pet food that make a claim without scientific or verifiable proof must not be made without adhering to the law and the above standards. However, statements such as the examples above are not required to be proven by rigorous testing.

Expert analysis

Many pet food manufacturers work closely with a nutritionist. Typically it is worth finding a pet food tester to analyse your food to substantiate any claims you wish to make on your pet food packaging.

Often the nutritionist will work closely with lawyers to come up with labels that are truthful, accurate and not legally problematic.

What about pictures

Everyone has heard the old adage that a picture says a thousand words. If you emphasise a particular ingredient or product on the packaging then you must substantiate it.

For example, Purina faced this issue when on their Cat Chow packaging, salmon was listed as one of the main ingredients, when it is only eighth on the ingredient list. The packaging features a picture of a cutting board with a large cut of salmon filet, and a television advertisement compared the owner’s diet and the cat’s diet. The picture implies that salmon is a reasonably large part of the advertised product. This would be misleading even if there was a small percentage of salmon in the product. It is the overall effect of the packaging that is crucial.

What about ‘All Natural’

Generally speaking, a claim that something is ‘all natural’ means just that. There is no room for error. There are a number of interpretations of what natural actually means including that (the product) contains:

• No artificial ingredients
• No artificial colours
• Genetically modified organisms
• That the animals are ever given growth hormones
• Or antibiotics in the case of meat

What about ‘Organic’

If you use statements such as 100% organic, made with organic ingredients or certified organic, you need to be able to fulfill that promise. This is because pet food packaging which is labeled as organic generally attracts a premium price compared to foods that use artificial products, additives, pesticides and the like. There is a voluntary standard that you can follow (AS 6000-2009) which stipulates the minimum requirements for products placed on the market with labelling that states or implies they have been produced under organic or biodynamic systems. In this standard, the production procedures are an intrinsic part of the identification and labelling of, and claims for, such products. Organic can also refer to the way the food has been produced and consumers prefer (environmentally friendly options).

While this standard is not legally binding, it is a great reference.

Conclusion

There are a number of other laws that impact what you can put on your pet food packaging, for example, in relation to ‘Made in Australia’ claims and recycling claims but these are beyond the scope of this article.

Sharon Givoni Consulting can assist you with your packaging to ensure that it is compliant with the law and standards in the industry.

Disclaimer: This article is of a general nature and not to be replaced with tailored legal advice.