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Businesses that advertise food products are subject to myriad regulations with respect to the claims they can make about their products.

The law

Generally speaking, Food and Drugs Act, Competition Act, and Safe Food for Canadians Act govern advertising concerning food, drugs and natural health products. There are a few key rules of thumb sellers should keep in mind when selling their products. Firstly, claims made cannot be “false or misleading in a material respect”. Secondly, businesses must possess “adequate and proper” testing for any claim as to the “efficacy” or “performance” of a product before the claim is published. Lastly, it should be noted that “puffery” or “exaggerated or false praise” is not legal in Canada unless the claim clearly amounts to hyperbole. In other words, the average consumer would perceive it as such.

Examples of problematic product claims and Siskinds’ suggested alternatives

Product Name

Claim

Siskinds’ Suggested Alternative

Reason for Change(s)

Jim’s Jumping Jerky

“The most nutrient-dense Jerky ever. Eat this Jerky everyday, and this protein packed never have to visit the doctor again.”

“A natural, great tasting Jerky.”

Claims to be the “most nutrient-dense” jerky out there, but can this be substantiated?

Olive’s Orange and Ginger Juice

“Cure your cold and improve your immune system with this fast-acting germ-killing juice.”

“This drink is an excellent source of vitamin C and antioxidants, which contribute to the normal function of the immune system.”

In absence of clinic or other scientific data supporting the usefulness of these ingredients in mitigating the effects of a cold or improving one’s immune system, this claim could be problematic.

Good Health Once-A-Day Probiotics

“Contains Bacillus Coagulans GBI-30 6086, a probiotic that contributes to healthy gut flora.”

This is not a Health Canada pre-approved eligible bacterial species. Accordingly, no health claims may be made with respect to it. In this case, Siskinds would recommend contacting the manufacturer of the probiotic directly to see if it has received any approvals from Health Canada or has been accepted for any probiotic claims.

Only certain claims may be made with regard to certain pre-approved probiotics.

Mike’s Natural Oils

“This delight is made with only the purest of oils.”

“A tasty delight.”

The phrase “purest” needs actual testing and may mislead consumers to think that other similar products are unhealthy.

Common product claims and applicable laws

Nutrient claims

Nutrient content claims are “statements or expressions which describe directly or indirectly the level of nutrient in a food or group of foods”. Nutrient content terms such as “low fat” or “less salt” may be made, but only if they meet certain regulatory requirements. Claims must also be able to be substantiated.

Health claims

Health function claims are strictly regulated by Health Canada. As a subset of health function claims, a nutrient function claim is a claim that describes the well-established roles of energy or nutrients that are essential for the maintenance of good health or for normal growth and development. In order to properly make a nutrient claim, it must be truthful, and not misleading. This means that businesses must have scientific evidence to substantiate a food health claim prior to its use.

Do you have questions about what claims you can and cannot make about your food product?

If you are a business that advertises foods, drugs, or natural health products, and have questions or concerns with respect to the sorts of claims you can make about these products, Siskinds’ Business Lawyers Group is here to help.

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