Bringing home the bacon – or are you?

Introduction

Plant based protein products are already a well established destination in the supermarket aisle.  Australia is reportedly the third fastest growing market for such products. As technology finds ways to replicate more and more closely traditional meat products, ranging even to cultured meat produced by cultivating animal cells, the branding of such products is a topic of interest to many.  Is a busy shopper likely to mistake a meatless alternative for a meat-based sausage?  And if so, what are the legal consequences and lessons for branding?

No doubt, opinions are divided on whether there is actually any problem in practice at all.  A recent study conducted by the Institute for Sustainable Futures at the University of Technology Sydney concluded that there is no widespread confusion among Australian consumers as to the origin of plant-based meat substitutes.  The results of the study indicated that only 4% of people surveyed had inadvertently purchased a plant-based product because of confusion with labels, and the majority of these admitted they were in a hurry or did not read the product label.

By contrast, the “Don’t mince words: definitions of meat and other animal products” Senate Report released in February 2022 (Senate Report)¹ following a Senate Inquiry by the Rural and Regional Affairs and Transport Legislation Committee suggested that “what is missing is clarity for the consumer”, recommending various regulatory changes to resolve this.

Current food labelling requirements

Food labelling requirements are contained in the Australia New Zealand Food Standards Code (Code).

Most packaged foods sold at retail are required to be labelled with certain information, including a name sufficient to indicate the true nature of the food, and a statement of ingredients.²

Some items, including dairy products such as milk, cream and cheese must also satisfy certain compositional requirements in order to be sold by those names.³  A name such as “milk” can only be used on dairy products, unless the context allows otherwise.  The Code specifically notes that a name such as soy milk would not be taken to indicate that it is a dairy product, so that names like “soy milk” can be used for non-dairy options.⁴

Similar requirements apply to certain meat products, such as sausages and meat pies,⁵  which must include “meat flesh” as defined in the relevant Standard.   However notably, there is no general rule that a product sold as “meat” must meet any particular compositional requirements.  Therefore the use of terms like “plant based meat” are not excluded as long as they meet all other requirements.

In addition to the specific food requirements contained in the Code, food products must also comply with general consumer law, including the Australian Consumer Law (ACL), which prohibits misleading and deceptive conduct in trade.  Use of misleading product labelling would contravene the ACL.  In determining whether or not conduct is misleading, the overall impression will be considered, in particular, what a reasonable consumer would be led to believe.  Use of fine print may not be sufficient to overcome an impression which is misleading overall.

In practice, the requirement not to mislead or deceive is likely to be similar to the Code requirement that the name indicate the true nature of the food.  However given the emphasis of the ACL on the overall impression, other circumstances such as product placement within a likely purchasing environment and the overall impression of the product packaging will likely be taken into account in assessing whether the name of a plant based/alternative protein product is misleading.

Proposals for additional regulation – the Senate Report

The Senate Report provided two possible rationale for additional regulation: consumer confusion, and a perception that plant based products are unfairly “piggybacking” on the goodwill established by the traditional meat industry.

The evidence put forward in the Report as to confusion was ambivalent.  Some consumer research cited indicated a possibility of confusion, some suggested a low likelihood of confusion.  The ACCC reported that it had received “very few reports” of consumers being misled.

As to the “piggybacking argument”, it is worth noting that appropriation of goodwill alone, in the absence of consumer confusion, is not generally recognised in IP law at least as supporting an actionable claim.  Misrepresentation or confusion is a core element of trade mark infringement, passing off, and breach of the misleading conduct provisions of the ACL.  In giving prominence to the concept of appropriation of goodwill, the Committee arguably risks providing a broader scope of protection to the traditional meat industry than other industries are entitled to.

To remedy its concerns, the Senate Report recommends a wave of reforms including:

• A mandatory regulatory framework for the labelling of plant-based protein products, including cultured meats;
• A review by the ACCC of placement of plant-based protein products in stores and online;
• Exemption from certain portions of the Code for named meat, seafood and dairy category brands;
• A National Information Standard restricting the use of meat category brands to animal protein products, including guidance on the use of livestock imagery for plant-based protein products;
• Amending the Code to include a definition of plant-based protein products and minimum compositional requirements.

Product placement and use of animal imagery

The evidence presented in the Senate Report left unclear the extent to which product placement and use of animal imagery are significant issues in practice.  Although noting reports and photos of some instances of plant-based protein products being placed alongside traditional meat products, the Senate Report also recorded Woolworths’ submission that it utilises specialised signage and product placement for plant based products in store, as well as operating a separate landing page on its online shopping website for plant based products.⁶  The ACCC advised that most retailers locate the two product categories separately.   As to the use of animal imagery, again the Senate Report referred to “numerous instances” brought to their attention, while representatives from the plant-based protein sector noted that use of such imagery was not common practice.⁷

Conclusion

The Senate Report is now before the Government and it remains to be seen whether it will take up any of the recommendations.

However, the Report provides a timely reminder to the plant-based protein industry to review its branding and packaging to avoid potential misleading conduct claims.  Likely issues of contention may be branding or names using the same terms as traditional animal meat products e.g. “beef” or “sausage”, and animal related imagery or other branding devices traditionally related to the meat industry. As we have noted above, in assessing whether or not any particular branding is misleading, the entire package will be taken into account, as well as other relevant circumstances.  There are likely to be tweaks that can be made to lessen any risk of falling foul of the relevant laws and regulations.  For new businesses making decisions about branding now, it will make sense to take account of these possible future developments to try to avoid the need for re-branding in the future.

Pearce IP specialises in providing legal advice to life sciences industries, including those in foodtech/agritech, and can assist in navigating labelling and packaging requirements.

 [1]  https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024739/toc_pdf/Don’tmincewordsdefinitionsofmeatandotheranimalproducts.pdf;fileType=application%2Fpdf

[2] Standard 1.2.1-6 and 1.2.1-8

[3] Standards 2.5.1, 2.5.2, 2.5.4

[4] Standard 1.1.1-13 (Examples)

[5] Standard 2.2.1-3, 2.2.1-4

[6] Senate Report, 2.40 – 2.47

[7] Senate Report, 3.32 – 3.33

​Pearce IP is a boutique firm offering intellectual property specialist lawyers, patent attorneys and trade mark attorneys to the pharmaceutical, biopharmaceutical and life sciences industries.  Pearce IP has been shortlisted as a finalist for the ‘Intellectual Property Team of the Year’ in the 2022 Lawyers Weekly Australian Law Awards.  Pearce IP was crowned the ‘Intellectual Property Team of the Year’ in the 2021 Lawyers Weekly Australian Law Awards, and the firm is ranked in IAM Patent 1000 for both patent services and in Australasian Lawyer 5 Star Awards as a ‘5 Star’ firm.  Pearce IP leaders are well recognised as leading IP practitioners.  Team members have been recognised in virtually every notable IP listing for their legal, patent and trade mark excellence including: IAM Patent 1000, IAM Strategy 300, MIP IP Stars – Patent Stars & Notable Practitioner, Doyles Guide, WIPR Leaders, 5 Star IP Lawyers, Women in Law Awards – Partner of the Year, Best Lawyers and Australasian Lawyer 5 Star Awards.