The use of ‘NUT FREE’ in food labeling

There is an increasing demand in the marketplace for food and confectionary products which cater for the growing number of people who suffer from food allergies. In particular, products labeled as being ‘nut free’ are proving popular in an increasing number of schools where the specter of anaphylaxis (a severe allergic reaction commonly brought about by an allergy to nuts) has brought about a blanket ban on children bringing any products containing nuts to school grounds.

But what is required before a product can be labeled as being nut free? The unfortunate answer is that there is currently very little guidance from either the State or Federal governments about the use of the phrase ‘nut free’ on food labels. This is in contrast to a phrase such as ‘fat free’. In that example, the food product doesn’t have to be completely free of fat to be validly labeled as being fat free; what is required is a level of fat considered sufficiently low so as to deem the product practically free of fat. The level is defined by the relevant national guidelines. Without a specific guideline about the use of ‘nut free’, the legislative provisions governing the labelling of food generally will apply. These are the Federal Trade Practices Act (with mirror provisions in each State’s Fair Trading Act) and the State Food Acts. Under the general provisions, labelling would most likely be considered misleading and deceptive, or at the very least likely to mislead or deceive, if it were labelled as being ‘nut free’ and it were anything other than just that.

There are obvious and catastrophic risks if a food is labelled as being ‘nut free’ when it is in fact not. Aside from a claim that the labelling is misleading and deceptive under the Trade Practices Act, a corporation may find itself exposed to fines of $375,000 under the Victorian Food Act, and similar fines in other States, not to mention civil lawsuits at the hands of injured consumers. Even a microscopic amount of nut in a food product can be enough to cause a severe allergic reaction in some sufferers.

As a side note, you may have seen some products currently available on the market featuring the phrase ‘may contain traces of nut’ or a variant on those words. These words are often included in product labelling as a disclaimer, however, a better view is that they are confusing and in reality convey no meaning. Such a vague statement does not add to a consumer’s understanding of the contents of the food product, and should be avoided for the sake of certainty in labelling.

Before a manufacturer labels a food as being ‘nut free’, it is advisable that they confirm that their plant, their ingredients, their suppliers’ plant(s) and their suppliers’ source materials are all free of any traces of nut, nut dust or any material which has come into contact with nuts or nut dust (such as packing boxes or sacks). These are amongst the measures adopted by several manufacturers of ‘nut free’ produce in the United States, and they apply equally here.

Around the world, there is increasing pressure to develop guidelines on the use of the phrase ‘nut free’, but as yet, there does not appear to be an accepted model in any of the world’s major food and confectionary markets. Until such time as more specific guidelines are developed, Australian manufacturers should adopt a strict, zero tolerance approach to nut content in any product labelled as ‘nut free’.

If you would like any further information in relation to this article, please contact Adam Ghijben of EKM Legal via email: adam.ghijben@ekmlegal.com or phone: 03 9829 0999.