In the US last week, news broke that beverage company, Poppi, was facing a class action over false advertising. The complaint alleged the brand claims to be prebiotic because it includes the natural soluble fibre, agave inulin, but one can contains only two grams of the fibre. To realise any health benefit, you would need to drink more than four cans a day, which would be undone by the amount of sugar you were also consuming. (Poppi said its range has five grams of sugar and 25 calories or fewer in each can.)
A spokesperson for Poppi said the company would “vigorously defend” against the allegations.
And late last year, the New Zealand Ministry for Primary Industries (MPI) found the brand Ārepa’s health claims and labelling had breached the Australia New Zealand Food Standards Code.
Ārepa said it was a “scientifically proven brain nutrition” and promised neurological support through ingredients including L-theanine, and pine bark extract, but MPI found the health benefits of the two had not been substantiated.
The company was legally required to resolve its non-compliant health claims, and posted on its website, “Health claims attributed to Enzogenol (pine bark extract) and L-theanine have not been substantiated. Health claims that can be attributed to the vitamin C content do not identify that vitamin C is responsible for the health benefit. We will be working with New Zealand Food Safety to remove or correct the health claims on the Ārepa product labels and advertising material.”
On its Our Science page, it has the disclaimer, “The intention of the information on this page is to indicate the research that we have undertaken to date and that we continue to add to our scientific dossier. It does not suggest or imply that Ārepa, or any specific ingredient in our products, have certain health or therapeutic benefits”.
Food Standards Australia New Zealand (FSANZ) says Standard 1.2.7 of the Food Standards Code sets out the requirements for making nutrition and health claims.
“Nutrition content claims and health claims are voluntary statements made by food businesses on labels and in food advertising,” FSANZ told Food & Drink Business. “Any food or beverages sold in Australia and New Zealand must comply with the relevant standards in the Code.
“All health claims must be supported by scientific evidence to the same degree of certainty, whether they are pre-approved by us or self-substantiated by food businesses. In addition, consumer and fair-trading laws in Australia and New Zealand require that labels do not misinform through false, misleading or deceptive representations.”
Where the waters muddy is whether a manufacturer is using a physical ingredient with functional benefits that are clinically proven, or an extract of that ingredient, which needs its own scientific evidence, separate to that of the physical ingredient.
Functional foods and beverages are a lucrative industry. According to IBISWorld the Australian functional beverage market was worth almost $610.5 million in 2023. In the US, Beverage Marketing Corp found sales of around 12 prebiotic brands was worth more than $100 million – three times higher than a year ago.
Mintel said that around 10 per cent of all food and drink launches in financial year 2023 in the Asia Pacific were for functional products, and more than a third of Australia consumers were willing to pay more for food and drinks with claims supporting immune system health.
A report by FMCG Gurus found 68 per cent of consumers globally had actively sought to improve their diet in the last two years, with Kerry ANZ business development director, Taste, Emma Stride, saying emphasis on self-care has evolved from mere health-consciousness, to prioritising health in food choices.
“Honey, manuka honey, almond, matcha, turmeric, rosehip, elderflower, and acai are piquing interest for their perceived health benefits, and this is evident in drinks such as lemongrass tea and turmeric latte; similar preference goes for beverages that boost mental alertness and physical performance,” Stride said.
Dsm-firmenich’s Global Health Concerns Study in 2023 found 68 per cent of consumers ranked energy levels/tiredness as a top health concern, 63 per cent said mental and emotional health, and 60 per cent said mental performance.
While the company said there was white space for manufacturers to tap into, it highlighted the challenge of getting enough of the functional ingredient into a product for it to have a therapeutic benefit.
Functional ingredients provide an extra health benefit beyond basic nutrition, including proteins, pro and prebiotics, botanical extracts, macro and trace minerals, and fatty acids.
Nootropics support brain function and cognitive performance by helping blood flow deliver oxygen to the brain, reduce swelling in the brain, and protect it from toxins; and
Adaptogenics help the body reduce mental and physical stress.
The Therapeutic Goods Administration pointed out that consumers may view what is ‘natural’ differently to manufacturers and food technologists.
“When providing a label with a claim that the product is ‘natural’, thought should be given to what the consumer would think.
“In those cases where the term ‘natural’ meets a technical definition, a code or a standard, and this information is not available to the consumer, the consumer is left to draw their own conclusion and may therefore be misled,” it said.
There is also the risk of sliding from misled to being dangerous. In the US, at least eight people in four states have been sickened, six of them hospitalised after eating chocolate infused with mushrooms.
The US Food and Drug Administration said the product has been linked to severe illnesses, including seizures, loss of consciousness, confusion, sleepiness, agitation, abnormal heart rates, hyper/hypotension, nausea, and vomiting.
The brand, Diamond Shruumz, says on its website that its chocolate bars contain a “primo proprietary blend of nootropic and functional mushrooms”. It also contains reports of laboratory analyses on their products, some of which indicate the absence of select known fungal toxins and compounds such as the hallucinogen psilocybin and cannabinoids.
FSANZ said while it sets the standards in the code, it doesn’t enforce them. That falls to each state and territory. To ensure they are compliant, FSANZ recommends manufacturers talk to their relevant enforcement agency while developing their product and its packaging and labelling.
You can find information on the TGA and its food and medicine regulation role.
Sooner do it correctly than see your brand slip from being a functional beverage to a fancy soft drink.
