Big Kiwi fights Chicken Little

By Nick Li
Food & Beverage Patents & Trade Marks

In brief 6 min read

Is it misleading to use the term ‘chicken’ in relation to a vegetarian substitute for chicken? The Poultry Industry Association of New Zealand seem to think so. 

The Poultry Industry Association of New Zealand (PIANZ) recently lodged a complaint with New Zealand's competition regulator, the Commerce Commission, against Sunfed Meats in relation to vegetarian chicken substitutes being labelled as 'chicken'. In this article, we look at why this is likely to mark the beginning of a global cockfight, as the meat industry pits itself against the modern vegetarian food movement.

Who are Sunfed Meats and why are they ruffling feathers?

A kiwi start-up, Sunfed Meats (Sunfed) produces meat substitute products from pulses (peas, legumes, beans etc.).

At present, Sunfed only sells one product – 'Chicken Free Chicken' (packaging depicted below) (Sunfed Chicken).

Sunfed Chicken

That product has been exceptionally well received, to the extent that Sunfed has announced plans to expand its business globally, in addition to rolling out 'cow-free beef' and 'pig-free bacon' products.

The main attraction – for Sunfed's customers, of course – is that the Sunfed chicken product contains no actual chicken, or any other meat for that matter. This fact has drawn the ire of PIANZ, which reportedly has complained to the Commerce Commission that:

  • the use of the words 'chicken' and 'meaty'; and
  • the image of the chicken,

are misleading and in contravention of the Fair Trading Act 1986 (NZ).

Misleading and deceptive conduct in Australia and New Zealand

In New Zealand, misleading and deceptive conduct in trade is prohibited by section 9 of the Fair Trading Act. That Act also prohibits a person from conduct that is liable to mislead the public as to the nature or characteristics of goods.

At Australian law, these principles are captured under s18 of the Australian Consumer Law (ACL), which provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

False representations about goods are also prohibited under the ACL and the NZ Fair Trading Act.

In the present case, although PIANZ formal complaint has not been made public, we would hazard a guess that the relevant questions before the Commerce Commission are as follows.

  • Whether the representations (being the words and images on the packaging) would be likely to mislead or deceive the reasonable consumer to believe that the Sunfed Chicken was real chicken?
  • Whether using the word 'chicken' amounts to a false representation as to the kind or composition of the Sunfed Chicken?

It is unclear whether the complaint also has a basis in the Food Standards Code, which (for present purposes) is on identical terms on both sides of the Tasman. However, we would note that FSANZ standard 2.2.1 for meat and meat products defines 'meat' as being the whole or part of the carcass of certain animals.

Plainly the product is not actually chicken. The case is therefore likely to turn on whether the 'CHICKEN FREE' and 'Clean Lean Plant Protein' statements are sufficiently prominent to avoid the term 'CHICKEN' and chicken pictorials misleading consumers. Perhaps the strongest argument for PIANZ, however, is that consumers may be led to believe the Sunfed Chicken product has the same nutritional value as chicken, when the product is nutritionally different. Plant protein is, for example, often incomplete in terms of essential amino acids and it is lower in a number of essential vitamins and nutrients.

Vegie Delights

The Commerce Commission's decision will no doubt be closely watched by other meat and dairy industry associations in New Zealand, and abroad, including Australia. A quick search of our supermarket catalogues reveals vegetarian products on sale in Australia include those such as Vegie Delights' 'bacon style rashers' (depicted right). A decision in favour of PIANZ could see similar complaints brought against such products in Australia.

Efforts to create an animal-based linguistic monopoly over meat and dairy terms is not entirely new. The most pronounced example to date has been in relation to the restriction of the word 'milk' to refer to mammary secretions, thereby excluding plant based milks. This position has already been adopted by the European Union and Canada (where soy milk is referred to as soy beverage or soy drink). In the US, the Dairy Pride Bill, if enacted would have a similar effect. The Bill has been introduced to the US Congress and has the support of both parties. In Australia, despite Food Standard 2.5.1 defining 'milk' as being the mammary secretions of milking animals, and requiring products sold as 'milk' to actually be 'milk' as defined, there is presently no limitation prohibiting the use of the word 'milk' in relation to products such as soy milk or almond milk. This seems to be the result of a policy position by FSANZ, interpreting products such as 'soy milk' as being distinct from 'milk' alone, and therefore not falling within the scope of Food Standard 2.5.1. However, there is now a similar push to limit the use of the word 'milk' to dairy products only – although it has yet to result in any regulatory change. For now at least, Australians can continue to order their lattes with soy 'milk'.

In Europe, lobbyists are now calling on the EU to prohibit the use animal-based food denominations on vegetarian products. If successful, terms such as 'meat' and 'bacon' would be captured, as would less obvious terms such as 'hamburger'.

Relevance for Australian businesses

For food and dairy manufacturers and retailers operating in Australia, despite the definition of 'meat' and 'milk' in Food Standard 2.2.1 described above, there is no express prohibition on the use of those terms for the labelling of vegetarian products, provided that such labelling does not fall foul of the ACL (at least not for the moment). However, we note that Food Standard 2.5.1 does provide a minimum animal meat requirement in relation to terms such as 'sausage' and 'offal'. It is unclear whether vegetarian sausages would be caught by this Food Standard, or whether FSANZ will adopt an interpretation much like its interpretation of plant-based milk products.

In our view, it is unlikely that packaging for products like that of Sunfed Chicken will mislead consumers into thinking they are eating an animal product. The representations that the product is 'Chicken free' and contains 'clean lean plant protein' are very prominent. However, as noted above, perhaps the packaging also suggests the product is nutritionally equivalent to the animal which seems a stronger argument.

Therefore, if terms such as 'meat' are to be reserved exclusively for animal-based meat products, it would likely need to be introduced as a labelling requirement under the Australia New Zealand Food Standards Code. As vegetarian substitutes for meat products become more prevalent in the marketplace, lobbying by the dairy and meat industries for such a requirement is likely to intensify. In relation to milk products – only a policy change would be required to align Australia with the existing European position. Such changes would have significant impacts on current labelling practices for many plantbased food products.

The Commerce Commission's decision in relation to Sunfed Chicken, whatever that decision may be, will be seen by stakeholders on both sides of this skirmish as a signal that the ground in Australia and New Zealand is shifting in a particular direction.

Will PIANZ rule the 'chicken' roost, or be knocked off its perch by Sunfed? Only time will tell.