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Marketing and advertising are areas where manufacturers and retailers put their best efforts at work in order to come up with strategies that persuade consumers that their products are more worth purchasing than those of competitors. However, the law sets limits to such creativity, to ensure that consumers are encouraged but not discouraged, convinced but not deceived.

In recent times and in certain areas of the European Union (EU) like France, Belgium, Italy and certain Scandinavian countries, a number of food business operators have started to market and advertise their products with the ‘no palm oil’ or ‘palm oil-free’ label or logo.

palm-oil-labelling-2015Far from constituting legitimate advertising tools, these campaigns denigrate palm oil in an attempt to promote products made with competing vegetable oils or simply as part of astute marketing campaigns. They are based on the often hidden and unfounded allegation that such products are healthier, greener or simply better than those containing palm oil.

‘Negative labelling’ schemes against palm oil are either grounded on its supposed environmental impact and nutritional profile. These allegations are at best biased and misleading, and at worst false and fraudulent. It is therefore necessary for the competent authorities to intervene in order to protect consumers and restore order and fair competition in the food market.

False environmental information

‘No palm oil’ or ‘palm oil-free’ labels are often presented in the context of a myriad of environmental justifications. Invariably, this context suggests that palm oil is the main (if not the sole) culprit of deforestation and biodiversity loss in Southeast Asia. It is often accompanied by emotional messages to move consumers and compel them (through unsubstantiated but, sadly, effective wording) to believe that what is being transmitted is true.

This practice is an unsubstantiated generalisation and, as such, an instance of misleading advertisement under EU and member-states’ law, which prohibits any advertising that deceives consumers in order to affect their economic behaviour in a way that ultimately injures competitors.

In addition, this advertising and marketing practice conveniently ignores the fact that a considerable proportion of palm oil is presently certified as ‘sustainable’ under internationally-recognised schemes of proved effectiveness and reputation, such as the Roundtable for Sustainable Palm Oil scheme and, at the Malaysian national level, the Malaysian Sustainable Palm Oil standard.

Therefore, the ‘no palm oil’ label severely confuses and misleads consumers. It transmits messages that are short, simplistic and direct, at the expense of correctness, complexity and exactitude. Food business operators should praise the virtues of their products from a positive viewpoint, and not promote their products by denigrating other products or certain substances, ingredients or nutrients through unsubstantiated generalisation.

Unauthorised nutrition claims

Similarly, the ‘no palm oil’ label is often presented as a nutrition claim (i.e. suggesting that the absence of this oil has positive effects on health). Operators engage in ‘negative labelling’ practices whereby, instead of promoting the virtues of their own products – like foods containing sunflower or rapeseed oil – they focus on the alleged negative effects of competing products.

By the same token, they disseminate poor and inaccurate information, such as the idea that palm oil is ‘very rich in saturated fats’, that its consumption ‘leads to cardiovascular risks’, and that it contains trans fats. In making these accusations, operators do not take into consideration that palm oil actually contains a natural balance of saturated, monounsaturated and polyunsaturated fats, and that it does not contain trans fats at all.

Again, these allegations constitute deceptive generalisation that is largely unsubstantiated and is aimed at denigrating palm oil in order to promote competing vegetable oils as healthier alternatives.

The majority of these ‘no palm oil’ and ‘palm oil-free’ claims are simply illegal. In fact, when such negative claims are used on food products in a nutritional context (which may be either explicit (i.e. on the label), or implicit (i.e. on websites, leaflets or related media)), they qualify as ‘nutrition claims’ under EU law, which are only permitted if they are expressly allowed by law.

Indeed, after years of work at EU-level to ensure that consumers obtain trustworthy information from product labels, the relevant piece of EU legislation permits that only a limited number of ‘nutrition claims’ be legally used, such as ‘fat-free’, ‘saturated fat-free’ and ‘sugars-free’, to name only a few.

‘No palm oil’ or ‘palm oil-free’ claims – which in the vast majority of cases and in the mind of most consumers are nutritional in nature or are used in a nutritional context (implying that palm oil is nutritionally disadvantageous) – are not included in the list of permitted EU ‘nutrition claims’. Therefore, using these claims in a nutritional context is outright illegal under EU and member-states’ law.

In addition, the EU’s so-called Food Information to Consumers Regulation (FIR), enforced from Dec 13, 2014, provides for another useful benchmark against which such claims must be assessed. Under the FIR, any food product containing vegetable oil(s) must carry a label indicating the specific vegetable oil that it contains. The ingredients list must detail, after the mention ‘vegetable oils’, a list of the specific vegetable origin of such oils.

One of the main drivers of this new requirement is, clearly, to provide more and more detailed information to consumers on the precise composition of foodstuffs (since, under the previous framework, the mention ‘vegetable oils’ on the list of ingredients sufficed).

In this context, the argument that ‘no palm oil’ or ‘palm oil-free’ claims are aimed at providing information to consumers on the absence of this ingredient is unacceptable. Far from ‘helping’ consumers make informed choices, the information is redundant.

Now that the vegetable origin of oils must be declared, ‘palm-oil-free’ claims are also irrelevant (or self-evident and ‘flagrantly’ misleading) and give consumers the wrong impression that given products have properties that others have not.

Impact on consumers

The use of ‘no palm oil’ or ‘palm oil-free’ labels causes damage to the palm oil industry and is detrimental to consumers. Given their hectic lifestyle, most consumers are unable to devote much time to research the true origin, properties and characteristics of the ingredients in food products. They rely on labels and, obviously, on the most visible parts of these.

Understandably, the colourful and shiny ‘no palm oil’ claim on the front-of-pack stands out more than dense text listing the ingredients. Therefore, the average consumer may believe, at first glance, that he has a good idea of the ingredients and is making an informed choice. However, the ‘no palm oil’ label only gives consumers overly-simplified, biased and misleading – and in some instances, false and illegal – information about food products that they are about to purchase and consume.

Consumers need to be protected from smear campaigns that lack any informative agenda and that only seek to advertise specific products at the expense of an entire industry. All competent authorities at the national, subnational and supranational levels need to effectively address this matter. EU consumer protection organisations should also take a proactive stand to ensure that consumers are not misled.

Fratini Vergano
European Lawyers

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