HOW the ACCC arrived at a conclusion that the use of animal terms and images on plant-based protein product labels would be unlikely to mislead consumers or constitute a breach of Australian Consumer Law was the subject of Senator questioning at yesterday’s RRAT public hearings into meat definitions.

An ACCC submission lodged earlier in the inquiry process stated that “the mere use of particular terms referencing animals or the use of animal images in and of themselves will be unlikely to mislead consumers”.

Of 564,000 complaints the ACCC had received in the course of one year, just 11 were related to issues of labelling of plant-based proteins, the submission said.

Based on those examples, the ACCC’s view was that it was unlikely that a Court would consider those examples to be misleading to an ordinary consumer and a breach of Australian Consumer Law.

The ACCC’s submission also said the regulator had seen no examples of plant-based product labels containing misleading claims about health or nutritional benefits.

It also added that most retailers locate plant-based “meat” products in a different section to animal meat products, making it “even more unlikely for consumers to be misled”.

Throughout several public hearings to date a number of people giving evidence have spoken of having been “tricked” or mislead by labelling. Many put the lack of complaints received by the ACCC down to people either not knowing where to report it or not being prepared to devote the time and energy to report something that represented a small expense of $20 or less.

Numerous examples of images showing supermarkets selling plant-based and real meat products side by side without clear separation have also been provided to the inquiry.

Senator Susan McDonald drilled down in on these issues in questions to ACCC representatives Mick Keogh and Rami Greiss on Monday.

The ACCC has previously taken action against brands of duck meat that made misleading statements that their animals were free to roam and used images of open spaces, she noted.

“What is the difference that you’re willing to take action against livestock production industries for labelling issues, but don’t have the same concerns about plant-based proteins” she asked?

Mr Greiss said every claim has to be assessed on its own merits.

“In the case of the free to roam or the images of livestock in fields when in fact they were kept in either cages or pens, it is a much clearer case of creating a misrepresentation than the circumstances in some of the products we have seen where you have descriptors such as beef or chicken alongside descriptors such as plant based.

“And so, when you look at the totality and representation in current packaging that we have seen, it doesn’t create the overall impression that it is clearly a beef or chicken product, at most it creates a sense of confusion which the courts have found not to breach our act.”

Senator McDonald said she was aware that some retailers are now “self-regulating” by not selling some products that they would believe would cause confusion to consumers, due to a “lack of action by regulators”.

The ACCC submission also stated that is not received any reports or other information to date to suggest that the labelling of any particular plant-based substitute product has made a misleading claim as to its health or nutritional benefits.

Has the ACCC has investigated any of the claims made by plant-based protein companies with either meat descriptors or images of livestock, Senator McDonald asked?

In response the ACCC representatives said they were not aware such an investigation had been conducted.

Mr Greiss said it was particularly difficult within a court system to establish that a claim that a product is more environmentally conscious than another is actually false.

“It would involve a great deal of expert evidence and there is a lot of competing bodies of evidence about such matters that would make an extremely challenging court case.”

Why did the ACCC rely on complaints by individual consumers to act, then Senator McDonald asked, given most consumers would be unlikely to go the lengths of complaining to the ACCC over a relatively insignificant dollar spend?

Mr Keogh said the ACCC did not simply rely on individual consumer complaints, but also consumer representative bodies and industry groups – stating there was “a whole range of different avenues whereby the particular issue would be brought to our attention”.

Mr Greiss said relying on consumers contacting the ACCC was usually a reliable way to gauge the level of concern in the community about a particular, offering the example of the large number of customers who contacted the ACCC trying to get travel or accommodation refunds in the wake of the COVID pandemic.

“On this instance here we have 20 (consumer complaints) in the period… it doesn’t give a sense of great concern.”

Senator McDonald suggested in response that the price of flights and accommodation would represent significantly more of a consumer’s budget and therefore something they were more inclined to complain about than an expenditure of less than $20.

Mr Keogh said the critical first step the ACCC has to take is whether an issue would be considered by a court to constitute a breach of Australian Consumer Law.

“In examples that have been brought to our attention, we haven’t seen any that pass that threshold,” he said.

He also added that any party that believed Australian Consumer Law has been breached could also initiate their own actions and did not need ACCC involvement to do that.

Mr Keogh was also quizzed about comments he made in an opinion piece published on the Australian Farm Institute website in 2018 in his capacity as AFI executive director, which expressed a different view to the ACCC submission he authored for the 2021 inquiry.

In the opinion piece, which was reported in rural media, Mr Keogh expressed a view that food terminology and naming things correctly mattered economically and culturally, and that there was a strong argument that livestock and meat producers should have similar protections to those extended to producers in wine regions of France.

Mr Keogh said article represented his views at the time, but added that in his role with the

ACCC is to consider the extent to which an issue specifically constitutes a breach of Australian Consumer Law.

Questions pertaining to whether specific regulatory instruments such as geographical indicators or other names of foods were policy issues for Government.

“In relation to what we do with the ACCC, as we have said, it is governed by our requirement to administer the law, the Australian Consumer Law, and in doing that we have to apply to the courts and they make the decision about what is and what isn’t a breach of that law,” Mr Keogh said.

“That is basically what that submission has said, that we have looked at the 20 or so cases that have been brought to our attention, we haven’t seen any yet that we think would likely breach Australian Consumer Law, and then the second issue we would face is whether or not it fits within our priorities, so that is the distinction I guess between my comments in 2018 and the situation that relates to the actions of the ACCC now.”

Mr Keogh acknowledged that some retailers may not be separating plant-based and animal meat products in their supermarkets, but the ACCC’s statement in its submission suggesting that was not happening was based on the information the ACCC had available at the time of writing its submission.