
You’d be forgiven if you didn’t know that right now is Australian Organic Awareness Month – after all, 2020 has been a rather eventful and distracting year. But if you work in the food and drink sector, it’s a month you should be paying attention to, given just how rapidly the once niche market for organic products is growing. We all know that whenever an industry is rising fast, it usually brings out lawyers, regulators and the danger of increased litigation.
For a while now, there’s been an increasing movement of Australian consumers choosing products, particularly food and drink, with an eye on health and ecological impact. According to Ipsos, the environment is now our number one national concern, cited by 41% of Australians in January of this year. However, most experts think that in the long-term COVID-19 will intensify this trend, not supplant it. That would mean an ever-growing demand both inside and outside Australia for products which portray themselves as organic and healthy, or as contributing to a more sustainable, environmentally friendly future.
Can you demonstrate that you have earned what you promise on your label?
Focus on the keyword there being “portray”. Why? Well, many organic food businesses are concerned by the number of producers or distributors that claim they are organic or environmentally friendly but aren’t able to demonstrate exactly what they have done to earn this status. Some claims truly are window dressing. That’s why the major theme of this year’s Australian Organic Awareness Month is false claims and mislabeling.
There have already been some cases of mislabeling which got serious enough to involve commercial litigation lawyers. In 2018, the Australian Competition and Consumer Commission fined a company called GAIA Skin Naturals for false claims, after its products – labelled “Pure/ Natural/ Organic” – were found two contain at least two synthetic chemicals. However, the actual fine was dismissed by some as almost meaningless (less than $40,000) and the case was a rarity, proved on the grounds of deception rather than a strong standard for use of the term “organic”. Yet, this problem remains prevalent as other companies continue to call their products organic or natural without any real justification or basis.
Clearer definitions of things like “organic” or “environmentally friendly” is crucial
It doesn’t help that clear definitions of “organic” or “environmentally friendly” are still vague to non-existent in a regulatory sense. The organic produce trade organization, Australian Organic Limited (AOL) has been working with the Government for years now to press for clear definitions and mandatory regulation aligned with export requirements.
AOL argues that greater clarity will significantly benefit Australia as it seeks to export food products in a world which is increasingly keen for genuinely environmentally friendly products, but also wary of imports that may not live up their claims. Paul da Silva of Arcadian Organic & Natural Meat, Australia’s most successful global supplier of organic meat, says that weak regulation makes it difficult to convince overseas markets of the veracity of organic products and that this is an example of “a big export opportunity for Australia being hampered by red tape.”
Not only for legal purposes but also for your consumers and brand image.
While there is a long way to go before tighter regulations are agreed, it seems certain that they will be introduced in the coming years. If not because of the commercial imperatives suggested by DaSilva, then through people power. Consumers now pay closer attention and have learnt to become more sceptical about claims they see on the packaging or advertising and will press for greater transparency. That means that food and drink businesses which are already labelling their products as organic or are planning to in the near future may need a commercial litigation lawyer on their team, an expert capable of keeping up with regulatory and legal developments.
Of course, this shouldn’t be about meeting legal minimum thresholds but about genuine honesty with consumers and real positive impact on the world, backed up by proof and independent monitoring. That’s the only sure way of staying on the right side of future litigation. Neither good intentions nor a clever marketing team will be enough to keep a business out of trouble if they are taking the shortcuts or are talking the talk but not bothering with the walk.
The good news is that truly ethical and rigorous businesses will win out ultimately. If your company has a truly organic and environmentally focused ethos you will be able to demonstrate the many ways in which you live up to your labelling and will be rewarded by increasingly savvy consumers within Australia and beyond.

Mark Lazarus
Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.