Commerce Commission is prioritising enforcement against misleading online sales practices.

For food and dietary supplement businesses, this means scrutiny may extend across the entire digital sales journey of your product - not just claims on product labels or in advertising material.

Websites, apps, marketplaces, emails and social media must present information that is clear, accurate and substantiated. Otherwise, businesses risk breaching the Fair Trading Act 1986 (FTA), which prohibits false and misleading representations. The overall impression matters, including the wording, imagery, layout, default settings and any material omissions.

Where the risk lies

Using customer reviews as marketing claims

Many brands actively encourage customers to leave reviews on their websites, social media pages and third-party marketplaces.

The legal risk arises when businesses:

• selectively publish only positive reviews;

• suppress negative reviews;

• incentivise reviews without disclosing the incentive; or

• use testimonials that do not reflect a typical customer experience.

From an FTA perspective, the overall impression created by reviews and testimonials must not be misleading. Review practices should be transparent, and any material connection between the reviewer and the brand should be clearly disclosed.

In August this year, Brand Developers, trading as TV Shop, was found guilty of 13 breaches of the FTA, including misleading conduct relating to its handling of online reviews. Brand Developers instructed staff to post reviews of the business and its products on its website without disclosing their connection to the company. It also directed staff to moderate consumer reviews and withhold those with low ratings. Brand Developers was fined NZ$1,104,000 for the offending.

The Commission is also pursuing fake review platforms directly. In August 2025, it filed civil proceedings in the High Court against those operating the websites Top Reviews and Auckland Magazine, alleging the websites falsely give the impression that they provide independent, unbiased and genuine reviews of New Zealand businesses written by New Zealand-based staff, and that the websites themselves are based in New Zealand. The proceedings remain ongoing, with the Commission alleging that the websites continue to approach New Zealand businesses for favourable rankings while presenting their reviews as independent and impartial. The Commission is seeking declarations that the websites breached the FTA (sections 9, 11 and 13) and an injunction to restrain the conduct. As those operating the websites are believed to be based overseas and the conduct is ongoing, the Commission has sought assistance from major internet service providers and the Domain Name Commission to block New Zealand consumers’ access to the websites.

Using influencers

Food brands continue to invest heavily in influencer and creator marketing.

Although influencer marketing can be highly effective, businesses may be exposed where influencers:

• make exaggerated health or nutrition claims;

• fail to disclose sponsorship arrangements;

• claim benefits that cannot be substantiated; or

• make statements that go beyond approved product messaging.

For example, an influencer promoting a protein shake might overstate their personal results, present scripted benefit claims as personal experience, or use before-and-after imagery that implies benefits beyond those supported by the approved copy.

The fact that a statement appears on Instagram, TikTok or another social media platform rather than on a product label does not remove the legal risk for the business. Businesses should be comfortable that every statement made by an influencer can be substantiated and defended.

Across the ditch, the Australian Competition and Consumer Commission has put influencers on notice after an internet sweep found that most reviewed posts raised concerns about potentially misleading advertising under Australian Consumer Law. Although Commerce Commission has not announced a similar sweep here, the stakes are increasing. Under the proposed Fair Trading Amendment Bill currently before Parliament, penalties for misleading conduct under the FTA would rise to NZ$5 million.

Using subscription models

Subscription sales are becoming increasingly common across the food sector, particularly for meal kits, supplements, pet food, and recurring delivery services.

The key risk area is what regulators often refer to as "subscription traps", where consumers:

• do not realise they are signing up to an ongoing arrangement;

• encounter unexpected renewal charges; or

• experience unreasonable cancellation processes.

Commerce Commission has specifically identified subscription traps as part of its enforcement focus.

In 2025, Commerce Commission brought criminal charges against meal-kit company HelloFresh New Zealand for misleading consumers into reactivating their subscriptions. The charges arose from a cold-calling strategy in which former customers were offered discount vouchers without it being made clear that accepting them could reactivate paid subscriptions. The strategy resulted in almost 80,000 subscriptions being reactivated over 18 months. HelloFresh was found guilty and fined NZ$845,000.

Placing less focus on online claims

Many businesses have rigorous internal review processes for product labels but apply less scrutiny to website copy and digital campaigns. A complaint to the Advertising Standards Authority alleged that J H Whittaker & Sons Ltd ran a misleading campaign for its new Banana Caramel chocolate product. The campaign encouraged consumers to find products hidden around Wellington and Auckland using daily clues posted on social media at 10am. The complainant argued that the campaign was designed merely to drive social media engagement because, on one occasion, the clue had not been posted by 10:20am. Whittaker’s removed the advertisements, and the complaint was ruled settled.

Businesses should assume that an online claim requires the same supporting evidence as it would on a label. Last year, Commerce Commission warned Kmart NZ that its website claim that its Better Cotton clothing used “100% sustainably sourced cotton” may breach the FTA because it was unsubstantiated. Kmart acknowledged that it could not confirm whether all the cotton was supplied by Better Cotton farmers or sustainably sourced and has removed the claim from its website.

What businesses should do now

• Review the full online journey, from the product page through to checkout and cancellation.

• Check that availability, pricing and popularity messages are genuine and current.

• Verify all claims and ensure you have current supporting evidence.

• Review approved wording, imagery and disclosure requirements provided to retailers, marketplaces, affiliates and influencers.

• Monitor live third-party and influencer content, and require prompt correction of inaccurate claims, undisclosed advertising and misleading reviews.

• Check that a consumer can easily understand and cancel subscription offers.

Get in touch

If you need help with reviewing your product online sales journey or marketing claims, please contact our food law team.

Special thanks to Juliet Bing-Harmon for her assistance in writing this article.