Food Law Update – What's been cooking in Australia's food and beverage marketing?

Alleged Recipe Plagiarism is Cooking up Drama

A high-profile online battle between two social media influencers in the food industry has projected Australia's copyright law into the spotlight by way of a dispute over recipes. The significant level of public and media interest is indicative of the popularity of content creation related to food and recipes in Australia. The outcome of the dispute reflects the dangers for influencers and any business using social media, especially the potential for adverse backlash which can have severe reputational damage.

In late April this year, bestselling cookbook author Nagi Maehashi claimed on her website that influencer and fellow cookbook author Brooke Bellamy had plagiarised her caramel slice and baklava recipes and infringed her copyright. Maehashi published these recipes on her website in September 2018 and March 2020 while Penguin Random House Australia published Bellamy's cookbook, Bake with Brooki, containing the problematic recipes in October 2024.

Maehashi asserted that the similarities between the two recipes are "far too specific and detailed to be dismissed as coincidence", specifically drawing attention to the near identical ingredient lists and instructions of the recipes, for example, the same oven temperature and time for baking.

In her statement, Maehashi noted that she had engaged lawyers to represent her and handle correspondence with Penguin's lawyers. On May 25, Bellamy returned to social media to address the allegations, stating that she "cannot say [she has] invented the cookies, cupcakes, brownies or cakes in the recipe book. They are all inspired from somewhere and someone before [her]". Whether legal proceedings will eventuate remains unclear (none had been commenced as at the date of this publication), but with Maehashi's standing allegations of plagiarism and Bellamy's social media response, it is clear that protecting intellectual property in recipes is not always a piece of cake.

Can recipes be protected under copyright?

The allegations by Maehashi raise the question of whether and when recipes can be protected under copyright in Australia.

Copyright does not protect an idea, information, a method, or technique of itself. In Australia, ingredients, quantities, and timing are all considered to be "information", and therefore incapable of being protected by copyright. However, copyright can protect an original way that an idea is expressed. Copyright can subsist in the form of the recipe and how the author has expressed that recipe, as a literary work. For example, the form of the recipe could include the distinct order of ingredients and quantities, the expression of the preparation methods, and how the recipe is formatted and presented overall.

To be original, the form in which that recipe is presented must be the product of some personal skill or effort by its author and not copied from an earlier work. In other words, even if the ingredients, quantities, and method are not the author's own invention, copyright can subsist in the way that an original recipe is written and presented.

What this means for you

It is crucial to remember that for a literary work to be protected by copyright, it must be original (ie, not copied) and the product of skill and labour by its author. It would be possible for two recipes to have the same ingredients and quantities, and yet not raise issues of copyright infringement if the written expression of each recipe is sufficiently original.

It is also a timely reminder that even if a cause of action is not raised, the mere accusation of infringement can be a recipe for disaster.

Authors: Maria Sun, Partner, Josie Rose, Senior Associate and Lily Sommer, Lawyer

Australia's Advertising Codes – Food and Beverage Sector Focus

There's a lot for food and beverage businesses to think about when marketing their wares. Australia's self-regulatory system of advertising codes operates alongside Australian Consumer Law and Food Standards Code requirements and plays an important role in promoting fair and responsible advertising and marketing as well as providing guidance to businesses. In this part of Food Law Update, we give an overview of how Australia's advertising codes apply to the food and beverage sector and provide a snapshot of advertising panel decisions over the last 12 months.

AANA Codes

The Australian Association of National Advertisers (AANA) is the advertising industry body responsible for developing most of Australia's advertising codes. The AANA codes cover advertising and marketing communications in any medium, including print, digital, radio, tv, internet, social media and direct-to-consumer. The AANA works closely with Ad Standards who investigates and handles consumer and competitor complaints. Where a complaint is upheld, Ad Standards will generally require the marketer to modify or remove the ad.

The most relevant AANA codes for the food and beverage sector are:

1. Code of Ethics – advertising must be legal, fair to competitors, honest, respectful and avoid harm to consumers and society (eg, not depict material which is discriminatory, portrays violence or uses strong or obscene language).
2. Food and Beverages Advertising Code – advertising must not be misleading or deceptive, nor undermine healthy diets or lifestyles. 'Occasional food' ads must not target children, and health and nutrition content claims must comply with the Food Standards Code.
3. Children's Advertising Code – advertising to children under 15 must not contravene 'prevailing community standards', be misleading or deceptive, employ sexual appeal or imagery, be frightening, undermine parents'/carers' authority, or encourage over-consumption.
4. Environmental Claims Code - see our article below.

Alcohol advertising

 Alcohol advertising comes with extra restrictions. In addition to reviewing potential Code of Ethics breaches, Ad Standards may refer complaints about alcohol advertising to the Alcohol Beverages Advertising Code Scheme (ABAC) for determination under the ABAC Responsible Alcohol Marketing Code (ABAC Code).

The aim of the ABAC Code is to ensure that alcohol advertising:

• does not encourage minors to consume alcohol, and
• is consistent with the objectives of the National Alcohol Strategy for the reduction of harm from adult alcohol consumption.

Importantly, the ABAC Code applies to product labelling and packaging as well, which is something businesses need to keep in mind when promoting alcohol products, particularly in the context of recent changes to the Food Standards Code regarding energy statement labelling and nutrition content claims for alcoholic beverages.

ABAC encourages advertisers to use its pre-vetting service to avoid complaints or an adverse ABAC decision (and, in fact, pre-vetting is a requirement for TV, radio, cinema and outdoor ads for alcohol). If ABAC upholds a complaint under the ABAC Code, the advertiser will most likely be required to modify or discontinue the advertisement or product labelling and packaging. In cases of non-compliance, ABAC will notify liquor licensing authorities, media platforms and government organisations.

Alcohol advertising may also be subject to State and Territory liquor licensing and food laws and regulations, commercial television industry and radio codes of practice, as well as the Outdoor Media Association's Code of Ethics and policies.

Panel decisions: 12 month snapshot

The following is a quick snapshot of Ad Standards and ABAC panel decisions from the last 12 months concerning food and beverage advertising and marketing:

• of the 300 or so Ad Standards decisions, almost a quarter (around 70) involved complaints about food or beverage advertisements.
• most of those complaints concerned breaches of the Code of Ethics (34 complaints, 13 upheld) and/or the Food & Beverages Code (32 complaints, 7 upheld). Interestingly, none of the 12 complaints under the Children's Advertising Code were upheld.
• ads and promotions by fast food restaurants (McDonald's, KFC, Red Rooster, Nando's and Grill'd) received 17 complaints, with Ad Standards finding a code breach in around a third of cases.
• ads involving alcohol received 7 complaints under the Code of Ethics, with 4 upheld by Ad Standards.
• in addition, ABAC issued 115 decisions in response to complaints involving alcohol ads, upholding roughly half of these. Most complaints were concerned with marketing or product packaging having a strong appeal to minors or promoting irresponsible consumption of alcohol.

'Take-aways'

The key take-aways for food and beverage businesses from these decisions are:

• be familiar with the various advertising codes and how they apply to the marketing of your business in Australia. Consider using available tools (eg, ABAC's pre-vetting service for alcohol ads) to reduce the risk of complaints or an adverse decision.
• many complaints are concerned with potential harm to children. Take special care when marketing alcohol or 'occasional' food, or using ads which depict violence, sexual imagery, bad language or unsafe activities. Restrictions on the placement or timing of this type of advertising is likely to be required to avoid targeting children.
• ensure you have evidence demonstrating you have actively considered relevant advertising code requirements and have taken appropriate steps to comply. Relevant evidence may also be required to substantiate any claims made in your ads (eg, that a food product has certain health benefits).

Having to modify or remove an ad or product packaging following a successful complaint can be costly in terms of the effort and money involved, not to mention potential reputational damage.

Depending on the nature of the breach, consequences may also arise under Australian Consumer Law, and State and Territory liquor licensing and food laws and regulations. Being aware of, and actively complying with, these requirements is therefore essential to avoid landing in hot water.

The Ad Standards and ABAC panel decisions reviewed below are our picks from the last 12 months, selected because they give a flavour of the do's and don'ts of food and beverage marketing.

Author: Joanna Lawrence, Partner

Ad Standards Complaint Upheld: Abbott's supplement ad found to breach Food and Beverages Advertising Code

Earlier this year, the Ad Standards Community Panel upheld a complaint about Abbott's YouTube advertisement for its PediaSure nutritional supplement for children. The advertisement featured children playing on a playground with a voice-over including the words "…. for 50% faster growth and super powered immune support" and a speech bubble on screen reinforcing the "50% faster growth" claim. A disclaimer appeared for two seconds with some information setting out the scientific basis for these statements, including that the claim related to children at nutritional risk only.

The complaint concerned claims in the advertisement that children grow 50% faster.

The Panel concluded the advertisement breached Section 2 of the AANA Food and Beverages Advertising Code, in particular:

• section 2.1 Advertising must not be misleading or deceptive or likely to mislead or deceive; and
• section 2.3 Products including Health Claims or Nutritional Content Claims (or what might be interpreted as such) must be supported with scientific evidence.

In reaching its decision, the Panel noted:

• parents or caregivers concerned about providing a balanced healthy diet for their children would be the target audience.
• this audience would perceive the statements to mean consumption of the product resulted in 50% faster growth of all children, when in fact the claims were targeted at children at nutritional risk.
• the disclaimer, shown in small text for two seconds, did not provide the target audience sufficient time to read the information and inappropriately relied on them having the ability to interpret the scientific testing results.
• in any event, the disclaimer was inadequate to substantiate the claims. The scientific research on which it was based was 20 years old, conducted on a previous formulation of the product and involved a sample of only 90 children located in the Philippines and Taiwan.

Abbott was required to remove the advertisement from circulation. This decision serves as an important reminder that advertisements involving or targeting children will be more closely scrutinised, and of the inherent risks of trying to use disclaimers to substantiate or correct half-truths.

Authors: Maria Sun, Partner and Ashley Johnson, Senior Associate

Ad Standards Complaint Dismissed: McDonald's Squid Game Meal ad found not to target children

McDonald's' ad campaign for its "Squid Game Meal" received the most complaints (about six in total) under the AANA codes of any advertisement in the food and beverage sector over the last 12 months. The Panel ultimately dismissed all complaints.

The ad campaign was run in late 2024 to promote season two of the popular Netflix series "Squid Game", a show known for being quite violent. The ad depicts adults in green jumpsuits eating the Squid Game Meal in a McDonald's restaurant while people in pink jumpsuits and masks survey the restaurant. A voice-over describes a challenge involving "Dalgona Candy" shapes, referring to one of the games played in season one of Squid Game. The end frame states "Squid Game 2. Only on Netflix. 26 December" and includes an MA 15+ classification logo.

The main concern of complainants was that the ad was promoting an inappropriate product to children. In particular, a large number of complaints expressed concern that McDonald's, a family restaurant, was promoting a violent TV show to an audience which included children.

McDonald's' submissions responding to the complaints noted that the Squid Game Meal ad:

• targeted adults and fans of the Netflix series, not 'principally or significantly' children under 15 years;
• was less likely to appeal to children as it featured adult characters and voices only and the tone and visuals were more dramatic and serious. The Squid Game Meal was also not associated with the McDonald's children's Happy Meal in any way;
• did not depict violent or graphic material, nor promote unsuitable products or unsafe practices, and the MA15+ Australian classification logo would inform consumers that watching Squid Game was only suitable for those over the age of 15; and
• was only placed in spots and at times where children made up less than 25% of the predicted average audience.

The Panel considered whether the ad breached either of the following AANA Codes:

• section 3.1 of the Food and Beverages Advertising Code which provides that advertising of occasional food or beverage products must not target children; and
• section 2.1 of the Advertising to Children Code which provides that advertising directed at children must not contravene prevailing community standards, promote unsuitable or hazardous products, or encourage unsafe practices.

The Panel concluded that the ad did not breach either Code because it did not target children under 15 years of age. While the Squid Game Meal was an 'occasional food product' that would 'significantly appeal' to children, the Panel agreed with McDonald's that, overall, the ad was principally appealing to adults and older teenagers familiar with the Squid Game TV series, rather than children. The Panel also considered that audiences for the ad would not include a significant proportion of children.

Authors: Joanna Lawrence, Partner and Patrick Ryan, Lawyer

Ad Standards Complaint Dismissed: Serving size supervision saves Bulla sour cream ad

The Panel also dismissed complaints that Regal Cream Products' television ad for Bulla sour cream breached section 2.2 of the AANA Food and Beverages Code. This section prohibits advertising that undermines the importance of healthy or active lifestyles or encourages excess consumption by representing portion sizes which are disproportionate to the portrayed setting.

In the ad, a boy scoops several heaped spoons of sour cream onto his meal, while the family sitting around the dinner table watches. A voice-over says "When it comes time to top it off with Bulla sour cream, more is never enough. Some things are just unfakeable." Complaints raised concerns about the ad promoting childhood obesity.

In response, Regal submitted that the meal pictured is healthy and balanced, comprising chicken, potatoes and broccolini. Regal also highlighted the ad's "tongue-in-cheek tone" and made the argument that the average consumer would "understand the overall message to be that a consumer of Sour Cream would enjoy the product so much that they would want more, but not that they should eat more, and that Sour Cream should be enjoyed alongside a healthy and nutritious meal." Regarding the allegation of depicting excess portion sizes, Regal submitted that due to its comedic tone, a reasonable adult watching would be "unlikely to take a message encouraging excess consumption" from the ad.

The Panel dismissed the complaints, concluding that the ad did not encourage excess consumption or undermine the promotion of a healthy balanced diet, and therefore did not breach section 2.2 of the Code. While the Panel considered that the voice-over may be interpreted as encouraging consumption of more than a single serving size, the 200ml container of sour cream shown was an appropriate portion size for the setting as it contains four servings intended to be split between four family members. The Panel also noted that the parents give the child "disapproving looks when he takes more than his share" and the child is not shown actually eating all of the sour cream.

Authors: Joanna Lawrence, Partner and Rosalie Ritter-Jones, Graduate

ABAC Complaint Upheld: Funsters' confectionery themed vodkas appeal to minors

Bunsters is a Perth-based producer of alcohol products sold under the Funsters brand. The range includes flavoured vodkas with the brand names Zingle, Mango No 5, Cherry Amore and Chockers. Over the last few months, Funsters' marketing has received complaints that the confectionery themed packaging, website and social media posts have strong appeal to minors.

The ABAC panel upheld the complaints in respect of Funster's packaging for its Cherry Amore and Zingle products, finding that they breached Part 3(b)(i) of the ABAC Code due to their strong and evident appeal to minors:

• the colour scheme and font used on the packaging for the Cherry Amore product resembled those used on the Cherry Ripe chocolate bar wrapping and, given the long history and popularity of Cherry Ripe chocolates, the branding elements were likely to create an "illusion of a smooth transition from a non-alcoholic product to an alcoholic beverage"; and
• the combination of the name Zingle with fruit images, bright block colours and the descriptor 'Fruit Tingle Flavoured Liquor' on the packaging for the Zingle product would be recognised as referencing the Fruit Tingle confectionery and would be eye-catching to minors.

The panel also upheld a subsequent complaint about one of Funsters' social media posts. The post featured a video of people sharing their opinions about the Chockers, Cherry Amore and Mango No 5 products, with comments such as "It's a Snickers with alcohol", "Tastes like Cherry Ripe" and "Smells just like the chocolate". Once again, the panel found that the social media post had strong or evident appeal to minors and breached Part 3(b)(i). The panel observed that the inclusion of popular confectionery products such as Snickers, Cherry Ripe and Fruit Tingles in alcohol marketing would increase the potential appeal to minors, again creating an illusion of a smooth transition from a well-known non-alcoholic product to an alcohol beverage.

Complaints relating to the Mango No 5 and Chockers product packaging, the website communications and second social media post were dismissed.

Author: Joanna Lawrence, Partner

Ad Standards Code Update: What you need to know about the new AANA Environmental Claims Code

The AANA's new and improved Environmental Claims Code came into effect on 1 March 2025. The introduction of the revised Code followed a review of the 2021 Environmental Claims Code and supports the AANA's commitment to enhancing and strengthening responsible advertising by applying a more rigorous standard to advertisers and marketers in the face of an increasing number of complaints relating to environmental claims. The revised Code also supports the government's efforts to eliminate greenwashing with the aim of improving transparency and restoring public trust in communications containing such claims.

The revised Code covers "advertising" involving an "environmental claim" which includes any message or representation (including text, images, graphic, audio or symbolic representation) that gives the impression that an industry, business, product or service:

a. has a neutral or positive impact on the environment
b. is less harmful for the environment than alternatives, or
c. has specific environmental benefits.

Helpfully, AANA has set five clear rules for compliance with the revised Code. These are to be assessed from the perspective of the Target Consumer, being the “average and reasonable consumer of the target audience”. Advertisers must ensure all environmental claims are:

1. Truthful and factual. Regard must be given to whether the Target Consumer would be likely to be misled or deceived. The overall impression created by the advertisement is relevant and advertisers must ensure claims remain valid for the life of the advertisement.
2. Supported by evidence. Claims must be based on evidence held at the time the claim was made. Advertisers must not misrepresent third party evidence to support a claim, such as by including only helpful selective parts which are inconsistent with the total body of evidence.
3. Clear and not vague. Language should be clear and readily understandable to the Target Consumer. Advertisers must avoid broad, vague or non-specific claims, for example "eco friendly", "green" or "sustainable", and if further information is necessary to explain the terminology, consider including QR codes or website links.
4. Of genuine benefit. Claims about a product or service must not exaggerate or understate the environmental benefit. Rather, it can only be made where there is a genuine environmental benefit.
5. Future claims. Advertisers must have reasonable grounds for making future environmental goals or aspirational targets, at the time the claim is made.

Since being adopted on 1 March 2025, there have been 14 Ad Standards decisions that have considered the Code, with Ad Standards upholding 3 of the complaints. So far, however, none of the complaints under the new Code have involved the food and beverage sector. Nevertheless, food and beverage businesses need to be aware of the broader ambit of the revised Code and ensure they have solid evidence to support any environmental claims. This is not only important to ensure compliance with the Code but also the Australian Consumer Law and to avoid the scrutiny of the ACCC for which environmental claims, and particularly greenwashing, are a current compliance and enforcement priority.

Authors: Maria Sun, Partner and Ashley Johnson, Senior Associate

Other authors:  Leah Alysandratos, Lawyer; Patrick Ryan, Lawyer; Rosalie Ritter-Jones, Graduate, Lily Sommer, Lawyer