It seems everything these days is a "superfood", including our common everyday veg. It's a buzzword of the food industry – however when using this term loosely it could have larger implications by implying a health claim about the food that is being sold.

Essentially, the term "superfood" is used to describe foods and food ingredients that are “nutrient-rich” or “nutrient-dense”, or those that are believed to have health benefits. However, using this term by itself without further communicating why the food is healthy or a "superfood" could breach Standard 1.2.7 of the Food Standards Code governing nutrition, health and related claims.

In New Zealand and Australia, "superfoods" are not specifically mentioned in the Code, and in the majority of cases, products making this claim will meet the required thresholds to be able to make nutrient and/or general level health claims. However, where they don't meet these thresholds, or have omitted the required detail in their advertising or product labelling, then this will not only breach the Code, but it could be considered misleading and in breach of the Fair Trading Act 1986.

Use of the term "superfoods" has already been under the spotlight in both Australia and New Zealand. In 2015, Australian-based breakfast-maker and health bar brand Uncle Tobys claimed in an advertisement and product labels that its oats were “a naturally rich in protein superfood". This lead to hefty fines worth AU$32,400 (NZ$35,600) after the Australian Competition and Consumer Commission found the company potentially contravened competition law for misleading consumers.

In Europe, the term “superfood” cannot be used on the label of food products and food supplements. To get around this ban, European companies instead make the term part of their brand name, for example "Celia's Remedies - Superfoods & Antioxidants", or "Suzy's Superfoods". However in New Zealand, simply including the term "superfood" as part of your trade mark will not get around the fact it may still imply a health claim, particularly if the imagery used on your products supports this.

The trend towards value-added products and moving beyond the raw materials is also gaining momentum in the food industry. This is where we cross over to the territory of "supplemented foods", which are regulated by the New Zealand Food (Supplemented Food) Standard 2016. Consumers use supplemented foods to complement a diet as part of a healthy lifestyle, and consider these to be "health foods', such as fortified cereals or drinks with added vitamins and minerals. Supplemented foods will most often resemble the base food product. The Supplemented Food Standard imposes fewer restrictions associated with the use of vitamins, minerals and bio-active substances when compared to the regulation of dietary supplements, although it necessitates the requirement to display ‘supplemented food’ on the label. It is also acceptable to make health claims about supplemented foods providing they meet the criterion set out in Standard 1.2.7.

So what then is a dietary supplement? The Dietary Supplements Regulations 1985 have been amended to exclude food-type dietary supplements. Generally speaking, dietary supplements are in a capsule, tablet, oral liquid, or some other therapeutic type dose form. Food is also specifically excluded from the Natural Health & Supplementary Products Bill which is working its way through Parliament. However, this proposed regime allows health benefits to be claimed for products as long as such claims are substantiated by appropriate evidence, and also sets out a number of pre-determined "allowable health benefit claims" for particular conditions, such as the common cold.

Essentially, organisations need to decide whether a product is to be sold as a food, supplemented food or dietary supplement and ensure that their product advertising and labelling aligns with this categorisation. Organisations should be taking a "prove it or lose it" approach to their product labelling and be mindful of their obligations when making any claims or statements regarding the health benefits of their products, implied or otherwise.