Too much sugar makes Heinz
snack food unhealthy for little children
The Federal Court has linked sugar in food with weight
gain and dental caries in a landmark decision that a Heinz
snack food was not beneficial to children’s health because
it had high levels of sugar.
The decision is: Australian Competition and Consumer
Commission v H. J. Heinz Company Australia Limited
 FCA 360, a judgment of Justice White, Federal Court
of Australia, on 19 March 2018.
The key finding was that the packaging of the Shredz
fruit & veg products conveyed the impression that the
products were beneficial to the health of children aged 1-3
years, which was misleading because they contained
approximately two-thirds sugar (by weight)
Was the Healthy Food
Representation conveyed by the packaging?
Under the Australian Consumer Law product
packaging must not be misleading or deceptive (s. 18(1)) or
be false or misleading as to the benefits of the product (s.
Heinz sold three “Heinz Little Kids fruit & veg SHREDZ”
products, a Berries Product, a Peach Product and a Fruit and
Chia Product. They were sold in a light cardboard box which
contained five packets, each with several sticks of the
products. The sticks were similar in texture and taste to
confectionary jubes, with a stickiness similar to that of
The Court was satisfied that the packaging conveyed a
representation that the Berries Product was a nutritious
food and beneficial for the health of children aged 1-3
years (the “Healthy Food Representation”) and that a
not insignificant number of ordinary reasonable consumers
would have understood it in this way. (p 104, judgment)
The words ‘beneficial for the health of children’ were
not printed on the packaging. Instead, the Court concluded
that the packaging gave the overall impression that the
product was ‘beneficial for the health of children’ through
a combination of:
- the imagery of an active healthy young boy
engaged in tree climbing in conjunction with the
prominent pictures of wholesome fresh fruit and
vegetables; The tree itself conveys an image of natural
and healthy growth; and
- the words the Berries Product comprises 99% fruit
and vegetables and is appropriate for toddlers “on the
go” reinforced by the statements no preservatives
and no artificial colours or flavours.
(p 100, judgment)
The packaging is reproduced below (Annexure A, judgment)
Was the Healthy Food
Representation false or misleading?
The ingredients of the Berries Product were apple paste,
apple juice concentrate, berry purees, raspberry puree,
sweetcorn puree, pumpkin puree and natural flavours. The
principal ingredient was apple paste (36%). … The process
was … the mashing of peeled and cored apples followed by
dehydration until the product had the viscosity of a paste.
Ascorbic acid was then added to avoid browning of the paste.
All ingredients were concentrated / dehydrated. The
effect of the dehydration of the ingredients was to increase
the amount of sugar as an overall proportion of ingredients
(to 68.27%). (p 135, 136, 150, judgment)
The Court considered evidence from expert nutritionists
and paediatric dentists in finding that the Healthy Food
Representation was false or misleading because of the high
sugar level in the Berries Product:
- The World Health Organisation (WHO) 2015 Guideline:
“Sugars intake for adults and children” which
contains a “strong recommendation” that the intake of
“free sugars” be reduced to less than 10% of total
energy intake, being the sum of all daily
calories/kilojoules consumed from food and drink. In
addition, the WHO Guidelines contain a “conditional
recommendation” that the intake of “free sugars” be
further limited to below 5% of the total energy intake.
Note: the WHO Guidelines definition of “free sugars” is:
Free sugars include monosaccharides and disaccharides
added to foods and beverages by the manufacturer, cook
or consumer, and sugars naturally present in honey,
syrups, fruit juices and fruit juice concentrates.
(p 155, 159, judgment)
The Court viewed the WHO Guidelines as at the heart of
the ACCC case and considered them authoritative.
- There was evidence that 25% of Australian
children are overweight or obese and evidence supporting
the association between the consumption of free sugars
by children and weight gain. (p 149, judgment)
- A single serve of the Berries Product was the
equivalent of three teaspoons of free sugars, which was
equal to the recommended intake (5% of daily intake) of
free sugars by two year olds. Note: 1 teaspoon = 16
calories = 4.2g. It was unhealthy given the
probability, if not the inevitability, of children
consuming free sugars in the rest of their daily diet.
(p 161, judgment)
- It is not easy to accept that consumption of that
amount of sugar in a single snack can be regarded as
beneficial to the health of 1-3 year olds. That is
especially so given that excess weight and obesity is a
significant problem among Australian children, as the
statistics indicate and having regard to the role of
sugars in the development of dental caries. (p 236,
- The evidence satisfies me that dental caries is a
major problem among young children, that foods with high
sugar content, especially those which are retained in
the mouth are a significant cause of dental caries, and
that the Berries Product is of that kind. In turn, it
warrants the conclusion that consumption of the Berries
Product cannot be regarded as beneficial from the
perspective of dental health (even though it) can
be mitigated, and perhaps avoided, by good oral hygiene
practices. (p 231, judgment)
The Court found that Heinz ought to have known that the
representation that the Products were beneficial to the
health of children aged 1-3 years was false or misleading.
The Heinz internal documents showed that Heinz intended to
promote the products as nutritious and healthy.
The Court foreshadowed it will make declarations that
Heinz has contravened the Australian Consumer Law.
- The finding applied not only to the Berries Product,
but also to the Peach Product and a Fruit and Chia
Product, despite small differences in ingredients.
- Heinz ceased to sell the products in May 2016,
shortly before the proceedings were commenced.
- The ACCC failed to prove that two other
representations were false and misleading, namely that
the packaging conveyed that the products were
nutritional or of equivalent nutritional value to the
natural fruit and vegetables depicted on the packaging;
and that the products would encourage the development of
healthy eating habits for children aged 1-3 years.
The link between free sugar and unhealthy weight gain is
an important public health issue. Type 2 diabetes in
children is rising as a result of poor dietary habits.
What the ACCC has done is to demonstrate this link to the
satisfaction of the Court because the packaging gave the
impression that the food was a healthy snack food for young
The ACCC is entitled to bask in its success - “We welcome
the Court’s decision today which shows that businesses that
make false or misleading claims about the health benefits of
products face serious consequences,” ACCC Acting Chair Delia
Rickard said (see media release).
But the ACCC cannot rest on its laurels. It should be
starting work immediately to put suppliers of products with
high sugar levels sold to children and adults on notice that
they cannot give the impression of providing health
benefits. Prime examples are energy drinks where one small
can may contain enough free sugar for 10% to 15% of daily
energy requirements of an adult (exceeding the WHO
recommended limit of 10%).
Marketing commentary by
Michael Field, EvettField Partners
Parents of children are busy managing competing
priorities and are often under time pressure. They may not
have the time to read the full ingredients list or
nutritional information printed on every packet of food
before they purchase. They rely on the information on the
front of the packet.
Historically, the typical purchase decision drivers were
based primarily on taste, price, and convenience. These are
quickly being replaced by the new ‘evolving drivers’ such as
Health & Wellness; Safety; Social impact; Experience and
Consumer brands must keep up with rapidly evolving
customer buying behaviour and changing market expectations
to not only maintain their dominant market positions – but
to remain relevant to their customers who demand honesty and
transparency from the brands they choose.
In this instance, Heinz failed to meet their legal
requirements and in effect failed to meet the reasonable
expectation of consumers to rely on the information provided
by the manufacturer, which is designed to influence their
Supermarket aisles are bulging with products targeted at
children, laden with sugar and marketed by dubious claims
about health and nutrition.
I am surprised that the ACCC has not addressed this issue
earlier, and as a parent and a marketer, I hope they go
further and target more broadly, including the energy drink
market which targets the teen market.