Misleading Labeling or Non-Compliant Labeling?

Food labeling is defined as “information printed on the package and it is subject to the established regulations”. ¹

However, according to its function, it is an important part of the food because “it is the main communication media between food and final consumers, being a key tool that allows them to make informed choices about the food they buy and eat” or in the same way “it is the main way the producer gets to communicate with the final consumer and inform the nutritional features of the product”.²

Nonetheless, since the labeling’s main goal is to communicate, it is subject to regulation and monitoring following the regulatory frameworks around the world, which regulate the information the labels must contain through what the technical and legal instruments specify. However, when these requirements or specifications are not met, it is considered as a non-compliant of the requirements, and therefore, non-compliant labeling.³

These nonconformities are very significant, in the sense that it can be understood as a fault taking it as misleading or false based on the regulatory legal instrument, considering that “it can violate the right of the consumers to have access to the right information that lets them make the right choices according to their own desires and needs”. ⁴ In that sense, there are some instruments with international references like the general rule of Codex for the prepackaged food labeling that establishes within its general principles the following:

Prepackaged food cannot be described or introduced with a misleading, false, or confusing label, or is susceptible to giving a wrong impression regarding its nature in any way.

Prepackaged food won’t have to be described or introduced with a label or labeling containing words, images, or graphics representations showing or suggesting, directly or indirectly, any other product that may lead to confusion, or in any way lead the buyer or consumer to think the product is related somehow to that other product.

Similarly, the guidelines of Codex regarding the use of nutritional and healthy claims, states that “The healthy properties claims must be supported by a group of valid scientific evidence that justifies them, provide true and non-misleading information in order to allow the consumer choose a healthy diet, as well as being supported by specific literature for the consumer”. ⁵

In general, these principles have been included in all the national and community laws that rule this matter.

Misleading Information (Codex 2001)

Food manufacturers use statements, images, and other graphics in the food labels to communicate information about the different features of the food products (for example, its basic nature, identity, composition, quality, origin, method of manufacture, health benefits).

These representations can be categorized as: true and not misleading, false, and true but misleading. True and not misleading communications are literally true and do not lead consumers to wrong assumptions. False communications are literally not true and lead consumers to wrong assumptions.

True but misleading communications are literally true but also lead consumers to wrong assumptions. When labeling has nonconformities, both the presence and absence of information are significant.

Types of Misleading Communications (Codex 2001)

a. Omission of material facts⁶

Food labels are sometimes misleading because an important fact has been omitted. For example, a label might omit to reveal important information to satisfy the consumer’s need to correctly interpret the claim of the label. Also, the label might not reveal important facts regarding the adverse consequences affecting the consumers for using the product.

b. Misleading due to confusion⁶

Consumers may be misled through the use of confusing language, symbols, or images on the package. This confusion often happens because the promotional communication includes a word, sentence, symbol, or image similar to a word, sentence, symbol, or image more familiar but not the same meaning. This confusion might cause the consumers to get the information wrongly or mistakenly. This is concerning, especially if the labels are translated or the product is exported.

If the label of the product shows the statement “Only one gram of sodium”, consumers might think mistakenly the product is low sodium. The truth is that one gram of sodium is equal to 1,000 milligrams of sodium – a high amount of sodium.

The pragmatic implications are strongly implicit guesses or just implied instead of being directly asserted. For example, the true statement “Only one gram of sodium”, is very likely to mislead some consumers that may interpret it mistakenly as “very little”.

c. Misleading due to the same attribute⁶

True information about a product’s attribute may lead to misleading inference regarding the same attribute of such product or other products under the same category or similar category. Below you’ll find some of the types of consumers’ inferences.

For example, consumers may interpret an attribute’s statement of a brand of vegetable oil (“No cholesterol”) like saying it is something unique (that is, X brand is the only one brand of vegetable oil with no cholesterol) or better (that is, X brand contains less cholesterol than other brands of vegetable oil). Therefore, consumers might infer some things about rival brands even when no explicit comparisons have been made. The consumer would be misled as those unique or better inferences are not supported. Paragraph 5.2 of the guidelines for the Use of Nutritional Properties Claims from Codex is intended to prevent this type of misleading. It says that “if food is by nature low or free of nutrient on which the claim is made, the word describing the level of the nutrient should not precede right before. Applicable to the English syntax but not necessarily to Spanish syntax] the name of the food, it rather should be “low (name of the nutrient) food” or “food free of (name of the nutrient)”.

d. Misleading due to confusion⁶

Consumers may be misled through the use of confusing language, symbols, or images on the package. This confusion often happens because the promotional communication includes a word, sentence, symbol, or image similar to a word, sentence, symbol, or image more familiar but not the same meaning. This confusion might cause the consumers to get the information wrongly or mistakenly. This is concerning, especially if the labels are translated or the product is exported.

If the label of the product shows the statement “Only one gram of sodium”, consumers might think mistakenly the product is low sodium. The truth is that one gram of sodium is equal to 1,000 milligrams of sodium – a high amount of sodium.

The pragmatic implications are strongly implicit guesses or just implied instead of being directly asserted. For example, the true statement “Only one gram of sodium”, is very likely to mislead some consumers that may interpret it mistakenly as “very little”.

e. Misleading due to the same attribute⁶

True information about a product’s attribute may lead to misleading inference regarding the same attribute of such product or other products under the same category or similar category. Below you’ll find some of the types of consumers’ inferences.

For example, consumers may interpret an attribute’s statement of a brand of vegetable oil (“No cholesterol”) like saying it is something unique (that is, X brand is the only one brand of vegetable oil with no cholesterol) or better (that is, X brand contains less cholesterol than other brands of vegetable oil). Therefore, consumers might infer some things about rival brands even when no explicit comparisons have been made. The consumer would be misled as those unique or better inferences are not supported. Paragraph 5.2 of the guidelines for the Use of Nutritional Properties Claims from Codex is intended to prevent this type of misleading. It says that “if food is by nature low or free of nutrient on which the claim is made, the word describing the level of the nutrient should not precede right before. Applicable to the English syntax but not necessarily to Spanish syntax] the name of the food, it rather should be “low (name of the nutrient) food” or “food free of (name of the nutrient)”.

Bibliography sources

(1) Lagua, R y Claudia V. (2007). Dictionary of nutrition and diet therapy. 5th ed. Mexico. Link

(2) Spanish Agency for Food Safety and Nutrition (AESAN in Spanish). (2022). food labeling. Link

(3) Codex general standard for the labelling of prepackaged foods. CODEX STAN 1-1985 (Rev. 1-1991). Link

(4) United Nations guidelines for consumer protection. (as expanded in 1999). Link

(5) Guidelines for use of nutrition claims CAC/GL 23-1997. Link

(6) Codex Alimentarius Commission (2001). Other Business and Future Work: Misleading Food Labeling Discussion Paper (Spanish). Link