Unlocking the Energy of the Amazon? the Need for a Food Fraud Policy Approach to the Regulation of Anti-Ageing Health Claims on Superfood Labelling

AuthorAlan Petersen,Casimir MacGregor,Janine Curll,Christine Parker
Publication Date01 September 2016
Date01 September 2016
Janine Curll,* Christine Parker,** Casimir MacGregor*** and Alan Petersen****
The prevention and contro l of ‘food fraud’, including false or misleading statements
made about a product for economic gain, is now emerging as an important and discrete
policy goal for governments and regulators in the interface between food and public
health. The control and prevention of food fraud complements regula tion to ensure
microbial food safety. This article uses a case study of anti-ageing claims made in the
labelling and advertising of açai berry superfood products to argue that Australia’s new
regulatory system for nutrient content and health claims on f ood (Australia and New
Zealand Food Standards C ode Standard 1.2.7) inadequately addresses ‘food fraud’. This
article argues that the over-reaching claims on açai product labelling will potentially
mislead consumers and subvert public healt h messages in a context of ‘gastro-anomy’
(confusion over appropriate norms for eating) and ‘ healthism’ (individual responsibility
for making healthy choices). This conduct ca n usefully be conceptualised as food fraud.
Second, the article argues that a lthough the substance of Standard 1.2.7 is well designed
to avoid food fraud, the fact tha t the standard allows food businesses to self-substantiate
evidence when making some health claims undermine s the protection offered.
Australian food regulators need to articulate a more strategic and proactive approach to
the prevention and control of food fraud.
Açaí (Pronounced ah-SAH-ee) is a little purple berry that originated in the Amazon
rainforest of Brazil. This ‘wonder berry’ is considered to be one of the most powerful and
nutritious super foods on the planet. It contains high levels of essential fatty acids (omega
3’s in particular) known for their cardio and neuro-protective and anti-inflammatory effect.
It is super rich in antioxidants to reduce cholesterol, contains 19 different amino acids to
* PhD Student, Monash University.
** Professor, University of Melbourne.
*** Research Associate, Monash University.
**** Professor, Monash University.
The research in this paper was partially supported by funding from Australian Research
Council Discovery Project 140100484 A Sociological Analysis of the Anti-Ageing Treatment
Market: The Dynamics of Expectations.
420 Federal Law Review Volume 44
optimize brain signaling pathways, is rich in minerals and vitamins (especially calcium
and vitamin E) for healthy hair, skin and nails. Açai is low in sugar so it won’t alter blood
sugar levels and is an excellent source of dietary fiber and natural energy.
So now you’re probably thinking ‘Surely something that good for me, can’t possibly taste
good.’ Well, eating your own words has never been so delicious. When the berries are
blended, we describe it as a fruit sorbet with hints of dark chocolate and red wine. What’s
not to like?
(Kiss the Berry the Açai Specialists)
In recent years a wide range of foods have been marketed as ‘superfoods’ from
blueberries to broccoli to black pepper and bananas.1 The term ‘superfood’ is popular in
marketing but ambiguous in mea ning. The term has no official definition and can be
used to market a range of different foods ‘all with intrinsic components that are believed
to have beneficial health effects’.2 The ‘most well-known definition’ refers to fruits and
vegetables that are particularly rich i n antioxidants, especially phytochem icals,3 which
are often associated with a nti-ageing health claims. Food businesses marketing foods as
‘superfoods’ have seen their sales figures rise. Blueberry sales reportedly doubled
between 2005 and 2007 following superfood claims’.4 In more recent years a range of
new and exotic superfoods have been discovered and marketed with stories about their
ancient origins and the ways they were used for health and we llbeing. These include
goji, quinoa, chia and açai.
The consumer is promised that by inges ting these foods and various juices, powd ers,
and tablets that include these foods, they too can unleash this power to p rotect
themselves against cancer, heart disease, weight-gain, neurological disease, ageing and
stress. The labelling of ‘superfoods’ with health, and sp ecifically anti-ageing, claims may
be particularly attractive to consumers in a social context in which they are anxious to
care for their own health yet face a multiplicity of conflicting cultural norms and cues
about how and what to eat. 5 As one commentator points out, ‘[s]uch claims are typica lly
associated with expensive boutique foods’. 6 Yet much of the evidence for these claims
is indirect or uncertain at best. Equivalent or greater benefits can generally be found in
a consistent diet of more av ailable and affordable fresh foods. 7
This article argues that many of the claims made for supe rfood products could
amount to ‘food fraud’. Althou gh the new Australia and New Zealand Food Standards
Code (the Code) Standard 1.2.7 (Standard 1.2.7’) prohibits overreaching health claims,
such as those found on superfoods, it does not articulate a sufficiently strategic and
proactive approach to contr olling and preventing this type of conduct in the interest of
consumers. Indeed, it allows industry the opportunity to undertake systematic reviews
1 Caroline Williams, ‘A Blueberry a Day …’ (2016) 231 (3085) New Scientist 26, 27.
2 Joanne Lunn, ‘Superfoods’ (2006) 31(3) British Nutrition Foundation Nutrition Bulletin 171, 172.
3 See below nn 7885 and accompanying text.
4 Emma Weitkamp and Torill Eidsvaag, ‘Agenda Building in Media Coverage of Food
Research: Superfood Coverage in UK National Newspapers(2014) 8(6) Journalism Practice
871, 872.
5 See below nn 5365 and accompanying text.
6 Tim Crowe, Superfoods: More Like a Supermyth (18 August 2012) Thinking Nutrition
7 See below nn 7886 and accompanying text.

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