What is the sound of consumer rights disappearing? Silence….

It’s about to get a lot harder to believe food advertising.

Ministers from Australian states and New Zealand with responsibility for oversight of food labelling met by teleconference at the end of last week. This anodyne piece of bureaucratic non-speak is what it looks like to have your consumer rights to truth in advertising quietly traded away to big business.

For those who, like me, knew nothing about this until it was too late, here is some background. Food Standards Australia New Zealand (FSANZ) is the trans-Tasman government body which has responsibility for ensuring that commercially sold food is manufactured safely and sold fairly. Part of that responsibility is monitoring the advertising claims made by manufacturers. It turns out that the food industry has decided that making health-related claims for food is a very effective advertising strategy, so they have doing a lot of it. So much, in fact that while FSANZ has evaluated and approved 115 specific health-related claims that manufacturers can use, there are simply hundreds more that it has not.

In Europe, the equivalent body has just banned over 1600 claims from being used in food advertising due to lack of adequate scientific evidence to support them. As of December 2012, it will become illegal for food companies to claim that probiotics ‘support the immune system’ or that tea can be ‘a great source of antioxidants’ or that Omega-3 fatty acids improve brain development in children. The European Food Safety Authority only approves around 10% of claims proposed by the industry. These claims and many, many others will continue to be made by Australian companies, because apparently our politicians are content for the general public to be fooled into buying products which don’t do what they claim.

Before the meeting on Friday, a coalition of health and consumer lobby groups including such heavyweights as the Cancer Council, National Heart Foundation and Choice strongly supported the adoption of new regulations which FSANZ has had on the table for three years. It is a regulator which has asked for the power to do its job properly, and address an epidemic of misleading advertising.

The Ministers however have crumbled like a shopping centre carpark.

What we get instead of demanding regulation of shonky advertising claims is less regulation, and reduced responsibility for FSANZ. The Ministers want FSANZ to come up with ‘pre-approved food-health relationships’ which will give companies the ability to say whatever they like about their product’s supposed health benefits as long as it meets this vague requirement. An example of how lame this is in practice is that of calcium and ‘bone health’. If your product had some calcium in it you could apparently claims it ‘promotes healthy bones’ with impunity without any requirement to show that it did.

Even worse than the dilution of labelling claim policing is the policy regarding new claims. Basically the Ministers have voted to sideline their own regulator, and only allow it to approve or strike down alleged health benefits AFTER the food hits the shelves.

Yes, you read that correctly.

You could bring out a new food product, and claim it did pretty much anything you could think of, and it would up to FSANZ to track you down and make you stop. This could take months or years, during which time the lies you told earlier would be all that people would remember once their brand loyalty was established. I bet the food company execs are pinching themselves. Corks would have been popping in corporate headquarters around the country after that meeting. It must have been quite a while since misleading advertising was given such a free kick.

The official term for this complete abrogation of consumer protection is ‘self-substantiation’. As evidenced by the European experience, manufacturers and regulators have very different ideas about what constitutes appropriate scientific evidence to support their claims. Based on their figures, 90% of health claims would have to be subsequently retracted by the food companies. Even with increased resources, FSANZ could not possibly keep up with the number of violations of the standards.

The end result of the reforms which a responsible regulator initiated 3 years ago is likely to be a complete advertising free-for-all. Companies will have to make increasingly outlandish claims to compete in a less regulated marketplace. The end result?

Bad news for the truth in advertising. Bad news for public health.