The Trouble with ‘May Contain’

The trouble with “may contain” statements

“May contain” on food labels in Australia sounds simple – after all, it is only two words – but in practice it is one of the messiest parts of food law and allergen management. It sits in a grey area between the Food Standards Code, food safety science and the Australian Consumer Law, and it is exactly the kind of issue where guessing, or copying what other brands do, can create problems later. This article walks through what “may contain” really means, why it matters for food‑allergic consumers, what regulators expect, and why there is no one‑size‑fits‑all answer for manufacturers and brand owners.

Food Standards Australia New Zealand and state food regulators say precautionary statements like “may contain” should only be used when there is a real, non‑trivial risk of allergen cross‑contact that cannot be reasonably controlled. They also suggest using clear, standard wording – for example, “May be present: milk, soy” – instead of long, inconsistent phrases that might confuse shoppers. But these documents are guidance, not black‑letter law, which raises obvious questions for businesses: how much weight should they give this guidance, and how confident can they be that a label based on it will stand up if something later goes wrong? The Australian Consumer Law then adds another layer of complexity by banning misleading or deceptive conduct and false or misleading representations about goods, including what they contain and how safe they are.

If “may contain” wording is used on almost every pack without a structured risk assessment, it may over‑state the danger and make allergen information less useful for people with allergies. On the other hand, if precautionary wording is rarely used, or left off where there is a known cross‑contact risk, that could give a misleading impression that the product is safer than it really is. The law does not set a precise formula for where to draw the line. Many food businesses now come to ask the same questions: what evidence should sit behind each “may contain” statement? How might the wording look if regulators or courts ever review it? How can labels be genuinely helpful for people with allergies and at the same time consistent with legal obligations under both the Food Standards Code and the Australian Consumer Law? There is no single answer that works for every product, factory or supply chain. The level of risk, the way the product is made, the claims on the pack and even the target market all matter, so this usually needs to be worked through on a case‑by‑case basis – combining a technical allergen risk assessment with advice on how that assessment translates into fair, clear and defensible wording on the label.

What “may contain” actually means

In Australian food law, “may contain” (or “may be present”, “made on equipment that also processes…”) is described as precautionary allergen labelling. These statements are there to warn that an allergen might be present in a food even though it is not an ingredient – usually because of cross‑contact somewhere in the supply chain. For example, a biscuit that does not contain nuts in the recipe might still “may contain tree nuts” because the line also runs nut‑containing biscuits, or a dark chocolate might “may contain milk” because it is made in a factory that also processes milk chocolate.

The key legal point is that the Australia New Zealand Food Standards Code does not regulate “may contain” statements. The Code strictly controls mandatory allergen declarations (through the ingredients list and a bold “Contains” statement), but precautionary wording is voluntary. There is no clause that says when you must, or must not, use “may contain”. That does not mean anything goes. Even if the Code is silent, the Australian Consumer Law still applies, which means labels – including “may contain” – cannot be misleading or deceptive and must accurately reflect real risk.

Why “may contain” matters

For people with food allergies, “may contain” is not just fine print; it is decision‑making information used every day. Some consumers avoid all products that carry precautionary allergen statements, because even tiny traces of peanut, tree nuts, milk, egg, sesame or other allergens can trigger severe reactions, including anaphylaxis. Others ignore “may contain” completely because they see it so often and are not sure which labels reflect genuine risk and which are just there “to be safe”.

Australian data shows that undeclared allergens are the leading cause of food recalls year after year, with milk, tree nuts, wheat/gluten, egg and peanut among the most common culprits. Many of these recalls involve cross‑contact or labelling errors rather than deliberate ingredients. That is why regulators and allergy organisations keep stressing that precautionary allergen labelling should only be used when there is a realistic risk of cross‑contact that cannot be controlled – not as a blanket disclaimer on everything. Getting that balance right can be hard, and it is where careful risk assessment and thought about wording are so important.

Law and guidance on “may contain”

The Food Standards Code requires certain allergens – including gluten‑containing cereals, crustacea, egg, fish, milk, peanut, soybeans, tree nuts, sesame, lupin and added sulphites – to be clearly declared whenever they are ingredients, additives or processing aids. These must appear in bold in the ingredients list, and also together in a separate summary statement beginning with “Contains”. That part is relatively black and white. By contrast, “may contain” and “may be present” statements are voluntary. Food Standards Australia New Zealand and state food regulators say these precautionary statements should only be used when there is a non‑negligible risk of allergen cross‑contact that cannot be reasonably avoided, and they encourage clear, standard wording such as “May be present: milk, soy”. However, these are guidance documents rather than strict law, so while they are influential, they do not guarantee that a label will be legally safe if something goes wrong.

The Australian Consumer Law, sitting alongside the Code, prohibits misleading or deceptive conduct and false or misleading representations about goods, including their composition, safety and quality. This raises practical questions: if “may contain” is used on almost every pack without a structured risk assessment, does that over‑state the danger and make allergen information less useful for allergic consumers? If precautionary wording is rarely used, or omitted where there is a known cross‑contact risk, could that give a misleading impression that the product is safer than it really is? The law does not set a precise formula for where to draw the line; businesses need to think about evidence, process and wording together instead of treating this as a tick‑box exercise.

Cross‑contact and the grey zone

The hardest decisions about “may contain” arise in the cross‑contact “grey zone”. This is when an allergen is not in the recipe, but might get into the food somewhere along the way. That might be from shared lines and equipment, change‑overs between allergen and non‑allergen runs, dust or crumbs in the environment, agricultural cross‑contact (for example, peanut in tree nuts or wheat in oats), or shared storage and handling in warehouses and transport. Best practice across Australia and New Zealand is to use a structured allergen risk assessment tool as part of the food safety program, rather than relying on intuition.

The Allergen Bureau’s VITAL Program is widely used for this. It helps businesses estimate likely trace levels of allergens and compare them against reference doses, so they can classify the risk and decide whether a precautionary statement is justified. In simple terms, VITAL is designed to answer two questions: when is the risk low enough that no “may contain” statement is needed, and when is it high enough that a standard line such as “May be present: milk, soy” should be used. However, even a well‑documented VITAL assessment is not a “get out of jail free” card in legal terms. Regulators and courts still look at whether the food was safe, whether the label gave a fair overall impression of the risk, and whether the business took reasonable steps to protect consumers. This is why precautionary wording, mandatory declarations and marketing claims all need to fit together and make sense as a whole.

​Case examples and “may contain” risk in practice

Real‑world incidents show how serious the consequences of poor allergen management and communication can be.

One widely reported case involved a restaurant in New South Wales where a diner with a known sesame allergy died after being served hummus containing tahini, despite telling staff about the allergy. The NSW Supreme Court found the restaurant’s allergen procedures and staff training were inadequate, and the business was fined a substantial amount and required to overhaul its allergy management. That case was not about a “may contain” label on packaged food, but it shows us just how seriously regulators and courts treat failures to identify and communicate allergen risks.

On the packaged‑food side, undeclared allergens remain the leading cause of recalls in Australia.

Many of these relate to cross‑contact or packing errors, where a product that should have carried a particular allergen warning did not, or where the wrong packaging was used entirely.

In some cases, products have declared “may contain traces” of an allergen but were later recalled because they still posed an unacceptable risk for allergic consumers, despite the disclaimer. These situations underline an important point: a “may contain” statement does not automatically make a food safe, or legally acceptable, if the underlying risk is not properly controlled.

Practical tips on using “may contain”

For manufacturers, brand owners and importers, a cautious, documented approach to “may contain” is essential.

“May contain” should never be a shortcut or substitute for good allergen control. First, you need solid allergen procedures: cleaning, segregation, scheduling, staff training and supplier controls.

Here are some questions to ask:

Do you know what yours are? Only after you have done everything reasonable to reduce cross‑contact should you think about adding a “may contain” type statement. Use “may contain” on a label as a back‑up plan, not as your primary safety measure.

Any “may contain” or “may be present” statement on a label should be supported by written evidence: risk assessments, process descriptions, testing records and supplier information.

The wording should be clear and consistent, ideally following current guidance (for example, “May be present: milk, soy”), and it should sit logically with other claims – especially “free from”, “vegan”, “plant‑based” or “all natural” messaging. Above all, “may contain” is not a black and white area.

Two businesses making similar products may reach different, defensible conclusions because their equipment, suppliers, cleaning methods and risk appetite differ. A considered combination of robust allergen management and structured risk assessment gives you the best chance of having labels that are clear for consumers, fair in the eyes of regulators, and defensible if anything ever goes wrong.

Two little words doing a really big job

“May contain” is a tiny phrase doing a huge job. It is trying to cover science, risk, fear and reassurance all at once – for the parent reading the back of pack at 10pm and for the regulator reading it after something has gone wrong.

No checklist can tell you exactly what your label should say for every product.

The real test is simpler and harsher: could you calmly explain, with records to match, why this exact wording appears on this exact product, made in this exact way?

If the honest answer is “not really”, that is the moment to revisit your allergen risk assessment and get proper legal advice.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.