Final assessment report



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LOW (IN) SATURATED FAT

Most submitters who provided comment on this claim were in support of ‘low saturated fat’ claims and the proposed criteria (AFGC, GWF, SA Dept Human Services, HWA, Unilever, Tatua, MoH NZ, Natural Products, NZ Nutrition Foundation). Unilever’s support for the criteria was because it reflects the increasing evidence of the impact of both saturated and trans fatty acid intakes and closely links with the draft Dietary Guidelines for Australians (2002).


The MoH NZ stated that removal of the NZFR ‘low fat’ criteria would enable higher fat products such as oils to make the claim. The NZ Nutrition Foundation suggested that consideration be given to criteria for total fat because NZ intakes are still above recommended levels and obesity is reaching epidemic proportions. In contrast to the MoH NZ’s rationale, the NHF NZ argued that the claim’s criteria, which are based on g per 100 g restricts products with higher fat contents such as oils and stressed that the ratio of saturated to polyunsaturated fatty acids plays a greater role in the diet compared to a reduction in saturated fatty acids alone. NHF NZ and Natural Products advised that the claim’s criteria should be calculated as a percentage rather than in terms of the stated levels. NHF NZ’s preference was for a maximum percentage of saturated fatty acids and trans fatty acids, which they believed should be 28% of the total fatty acids of the food in order to ensure consistency with the provisions for fatty acid claims in Volume 2 and because the ratio of saturated to polyunsaturated fatty acids plays a greater role than a reduction in saturated fatty acids alone. This equates to the recommended criteria.
Fonterra queried whether the claim should be ‘low saturated fat and trans fat’ if the criteria are for low saturated and trans fatty acids.

REDUCED (IN) SATURATED FAT

Several NZ submitters expressed preference for different criteria to those proposed for ‘reduced in saturated fat’ claims. In order to ensure consistency with fatty acid claims in Volume 2, the NHF NZ recommended a reduction of at least 25% saturated fatty acids, a statement of comparison with a reference food and a total of combined trans and saturated fatty acids of 28% of the total fatty acids of the food. NZDA similarly suggested a reduction of at least 25% saturated fatty acids and a maximum percentage of saturated and trans fatty acids. ADHB, however, were of the view that the reduced claim should be the only saturated fat claim to be permitted and that the total saturated and trans fatty acid content should be 66% of the same quantity of reference food. NZ Nutrition Foundation similarly expressed concern about the change from the NZFR criteria of ‘at least one third less’ to ‘at least 25% less’ and suggested that the total fat content be examined as a disqualifying criteria for the reasons discussed above.


Other New Zealand submitters supported the claim and the proposed criteria (Natural Products, Tatua, MoH NZ). In addition to those who provided general support for saturated fat claims, AFGC, SA Dept Human Services and NHF Australia also expressed their support.

SATURATED FAT FREE

SA Dept Human Services, NHF Australia, NZ Nutrition Foundation, Tatua, and MoH NZ supported the prohibition of ‘saturated fat free’ claims in addition to those who provided general support for saturated fat claims. Others however contended that the claim should be permitted. The AFGC recommended the adoption of Codex criteria as did Nestlé and Unilever. AFGC and Nestlé also submitted their second preferred option for a ‘very low in saturated fat’ claim with the tolerances set by Codex’s ‘free’ claims and in Nestlé’s case, a ‘saturated fat free’ claim with ‘no detectable’ criteria. Unilever requested a similar approach while Natural Products preferred zero tolerance for ‘saturated fat free’ claims. The reader should also refer to the comments submitted against ‘free’ claims.



MONOUNSATURATED AND POLYUNSATURATED FATTY ACIDS

AFGC, Dairy Farmers, FTA Vic, CHC, SA Dept Human Services, NHF Australia, Natural Products, ADHB and Unilever agreed with the proposed claims and criteria. MLA provided the only comment in opposition, contending that the total saturated and trans fatty acid content criteria is inconsistent with omega-3 fatty acid claims and that foods should therefore either meet the current requirement of Clause 12(1)(a) of Standard 1.2.8 of Volume 2 or ‘contain no more than 5 g of saturated and trans fatty acids per 100 g of the food’ and Clause 12 (1)(b).


AFGC queried whether the generic provisions for comparative claims would apply to ‘increased polyunsaturated fat’ and ‘increased monounsaturated fat’ claims. AFGC and Cerebos also noted that Volume 2 and the Draft Assessment Report for P234 have no definitions for ‘high’ or ‘good source’ claims.

While the former noted that this might not be a problem as such claims do not appear commonly in the marketplace, the latter suggested a similar classification to omega-3 fatty acid claims. NZ Beef and Lamb supported a ‘source of monounsaturated fat’ claim with levels which allow for the inclusion of at least the highest two or three sources rather than just one in order to increase consumer’s choice and their ability to achieve dietary goals. Tatua highlighted that the minimum requirement for a polyunsaturated claim is inconsistent with the NZ Nutrition Taskforce’s 2000 targets of 6-10% of total energy from polyunsaturated fat and a total fat of 30-33% of total energy.


OMEGA FATTY ACID CLAIMS

There were some strong views expressed in opposition to the criteria for omega fatty acid claims, especially from Australian submitters. AFGC, ADC & ADPF, Clover, MGC, MLA and the NZGMA did not agree with the current saturated fat disqualifying criteria for the following reasons:




  • the mandatory NIP requirements when an omega fatty acid claim is made provides sufficient information for consumers to determine their own requirements;

  • consumers have different needs so it is not possible to determine disqualifying criteria. For instance long chain omega-3 fatty acids are essential for brain and eye development so the claim has relevance for pregnant and lactating women as well as for children who require a diet with up to 40% energy from fat.

  • the criteria are inconsistent with other claims and food regulations in Australia and New Zealand. The Draft Assessment Report removed disqualifying criteria for ‘low saturated fat’ and comparative claims. The new draft regulations for infant formula require maximum amounts of omega-3, omega- 6, erucic acid and trans fatty acids, but have no specific disqualifying criteria for saturated fatty acids. AFGC therefore recommended that consistency be applied to nutrition content claims through a minimum, maximum or proportional reduction or increase.

  • the criteria are inconsistent with international regulations. No other country presently regulates disqualifying criteria for omega-3 fatty acids. Canada is not considering them in its review either.

  • disqualifying criteria have relevance for health claims where the overall nutrition profile is important to the claimed benefit, but are not relevant for nutrient content claims which are simple statements of nutrient content. It was noted that there are no disqualifying criteria for nutrition function claims except for vitamin and minerals.

  • expert bodies such as FAO/WHO and ISSFAL have developed recommendations for omega-3 fatty acid intakes for different populations. Several fatty acid and human nutrition experts in Australia are also reported to support removal of the disqualifying criteria.

MLA argued that there is sound scientific reason to include DPA content in the calculation of the total content of omega-3 fatty acids, which will thus affect the minimum content for making such claims. MLA state that:




  • DPA is a precursor of DHA. Animal studies have shown it to serve as a substrate for the production of DHA.

  • DPA is a naturally occurring omega-3 fatty acid in fish muscle and oil and in lipids from lean muscle tissue of terrestrial animals.

  • all studies on the beneficial effects of fish oils and flesh would have contained DPA

  • there are significant increases in EPA and DPA when lean red meat is the sole source of long chain omega-3 fatty acids in human studies.

  • EPA and DHA do not have identical effects in vivo in humans.

  • a recent Finnish study indicated that men who were in the highest fifth for serum DHA and DPA had a 44% reduced risk of acute coronary events compared with men in the lowest fifth.

While HWA supported the proposed criteria for omega-3 fatty acid claims, they opposed the use of omega-6 and omega-9 claims, particularly ‘good source of omega-6 fatty acids’ because of the view that the Australia diet is too rich in linoleic acid. HWA requested the prohibition of ‘source of’ claims for omega-6 and omega-9 fatty acids unless there are statements accompany the claims explaining the difference between omega-3, omega-6 and omega-9 fatty acids and outlining the overall aims for dietary balance. Fonterra did not consider omega-6 and omega-9 fatty acid claims to be necessary either, nor did they see justification for omega-3 claims based on the Dietary Guidelines for Australians and on the lack of evidence demonstrating beneficial effects from omega fats added to food in non-pharmaceutical amounts (except naturally from fish consumption).



CHOLESTEROL



PROHIBITION OF ALL CHOLESTEROL CLAIMS

This issue was a controversial one in that a large number of submitters commented on it and opinions were strongly divided. Most New Zealand submitters were in support of the prohibition (Griffins, InforMed Systems, NZ Beef and Lamb, Tatua, CPH, NHF NZ, NZDA, NZ Nutrition Foundation, NZ CI). Some Australian submitters also agreed with the prohibition (Dunn Son and Stone, SA Dept Human Services, MLA, NHF Australia). The principal rationale was that the emphasis is now on the reduction of saturated fats in the diet rather than dietary cholesterol and not all consumers are aware of this. InforMed systems stated that even though individuals with elevated LDL cholesterol may benefit from a lowered dietary cholesterol intake, food standards are not developed to cater for them and they would at any rate benefit more from a lowered intake of saturated fat. Dunn Son and Stone requested that stock in trade extensions be considered given the re-labelling that has already taken place in accordance with the standard.


Slightly fewer submitters opposed the prohibition (CHC, Goodman Fielder, National Foods, Natural Products, NZGMA, Cerebos, Nestlé, Unilever). Arguments against were:


  • consumers are aware of cholesterol and look for that information along with information on fat content (CHC)

  • there is the potential for significant negative impact for the food industry as a result of the prohibition (Cerebos, Nestlé, Coles). Harmonisation with international practices is important for exporters (CHC)

  • some doctors advise patients to reduce their dietary cholesterol, so these consumers will be confused by the prohibition (Natural Products, NZGMA). The NHF recommend that people with elevated plasma cholesterol restrict the intake of cholesterol-rich food (National Foods).

  • science is evolving and new trends may arise which add to consumer confusion (Natural Products)

  • there are no health and safety reasons for the exclusion of cholesterol claims from the Code (NZGMA). There is unlikely to be evidence, which shows that significant health issues are associated with the consumption of small amounts of cholesterol (National Foods)

  • nutrition education is required if there is evidence to demonstrate that knowledge about dietary cholesterol and blood cholesterol is poor, rather than a change in food regulation (National Foods)

  • the food industry receives phone calls for requests for cholesterol claims (Nestlé)

  • the prohibition is not cost-minimising and would impose yet another packaging change (National Foods).

Other comments in regard of cholesterol claims were that there are many products on the market with ‘cholesterol free’ that do not meet the criteria (Unilever). Food Liaison noted that the declaration of cholesterol is mandatory in the US, so US products would be illegal in Australia and New Zealand, as the listing would contravene the Code. Coles assumed that if the prohibition is introduced, the NIP in Standard 1.2.8 Clause 5 will be revised. CCIWA and Arnott’s stated that there is a need for effective consumer education if the prohibition takes effect.


LOW (IN) CHOLESTEROL

There were few comments relating specifically to ‘low cholesterol’ claims. While Unilever supported the proposed prohibition, the AFGC, Natural Products, Cerebos and HWA all opposed it. The AFGC argued that Codex provisions should apply, while Cerebos preferred CoPoNC criteria and Natural Products requested NZFR criteria. Although HWA supported a move away from cholesterol claims to saturated fat, retention of ‘low cholesterol’ was recommended with the proviso that low saturated fat criteria apply, because of consumer acceptance and understanding of the current claims. Cerebos also argued that ‘low cholesterol’ claims can act as an indicator for products low in saturated fat.



REDUCED (IN) CHOLESTEROL

The AFGC, HWA and Natural Products specifically opposed the prohibition of this claim. Both the AFGC and Natural Products recommended consistency with the criteria for comparative claims, while HWA requested that low saturated fat criteria apply, for the same reasons as given above. In contrast Nestlé stated that the claim could be removed.



CHOLESTEROL FREE

In addition to the many submitters who supported the prohibition of all cholesterol claims, two submitters specifically supported prohibition of ‘cholesterol free’ claims (FTA Vic and Mainland Products). This contrasted to the many submitters who specifically opposed the prohibition (AOOA, GWF, ADC & ADPF, AFGC, Dairy Framers, MGC, ASA, Natural Products, Cerebos, Unilever and Nestlé) for reasons such as:




  • there is consumer interest and demand for ‘cholesterol free’ claims

  • the Dietary Guidelines do not oppose ‘cholesterol free’ claims

  • people with elevated plasma cholesterol levels should restrict their intake of cholesterol-rich foods as recommended by the Australian Heart Foundation’s National Nutrition and Metabolism Advisory Committee

  • nutrition content claims are based on absolute values for nutritional content and are without any value judgements about the benefits. It is not about health claims

  • ‘cholesterol free’ claims, which consumers are aware of and accepting of can act as an indicator for products low in saturated fat

  • if a claim is justifiable and true then it should be permitted.

  • labelling should not be prohibited if it is permitted by Codex. An attempt at harmonisation is important for importers such as those in the olive oil industry.

Several different criteria were proposed for a ‘cholesterol free’ claim, namely zero tolerance (ASA, Natural Products), ‘no detectable cholesterol’ (AFGC), CoPoNC criteria (AFGC, Unilever, Cerebos) and Codex criteria (Nestlé). Some submitters also advised that disqualifying criteria should be included such as no fat (ASA), low in saturated fat (GWF) and a limit on saturated and trans fatty acid content as given in Standards 1.2.8 Clause 12 (Cerebos).


In support of the prohibition, SA Dept of Human Services argued that such claims have been problematic in that foods inherently free of cholesterol have made the claim.

CARBOHYDRATES

Opinions were divided as to whether there was merit in including provisions for making carbohydrate claims. ASDA, Coles, GWF, CHC, Diabetes Australia, DAA, Griffins, Natural Products and Cerebos were all in support, principally because of the need to maintain consistency with the provisions for other nutrition content claims and to improve consumer information. Several submitters also pointed out that such claims are being used by industry without definition and therefore have the potential to mislead.


GWF did not believe disqualifying criteria would provide value for consumers, given that the fat, sugar and dietary fibre content are listed in the NIP when such claims are made.
Coles suggested that ‘complex carbohydrate’ be defined, whilst Nestlé did not want ‘carbohydrate modified’ defined because the term was required for some foods in Volume 1. Manufacturers have continued using the term for consistency.
Many submitters opposed carbohydrate claims (AFGC, FTA Vic, SA Dept Human Services, Nestlé, Unilever, ADHB, CPH, MFD, NHF NZ, NZDA, MoH NZ, InforMed Systems) on the basis that there is no scientific rationale to justify their inclusion, there is no evidence of market failure, they are not regulated internationally as nutrition content claims and carbohydrate claims for sports foods are already regulated. Health professionals pointed out that such claims could confuse consumers further as there is large variation in the types of carbohydrates and their Glycaemic Index values.

LOW (IN) CARBOHYDRATES

In addition to the general support for carbohydrate claims, Horleys specifically supported a ‘low carbohydrate’ claim because of its relevance to sports food products and because there are already a number of such products with the claim on the market. Their recommended criterion was <10% for solid foods.

Horleys also believed that there is scope for a ‘very low carbohydrate’ claim from a sports food perspective and recommended criteria of <5% for solid foods. CMA recommended the same criteria but for ‘low carbohydrate’ claims in order for consistency with the criteria for ‘low sugar’ claims.
The NZGMA stated that ‘low carbohydrate’ claims might be useful for consumers seeking to reduce their energy intake. In contrast, SA Dept of Human Services specifically opposed the claim because of recommendations to consume a high carbohydrate diet and to allay the popular myth that weight loss is achieved by a low carbohydrate diet.

HIGH (IN) CARBOHYDRATES

In addition to the general support for carbohydrate claims, Griffins specifically supported this claim on the basis that the Glycaemic Index is based on a high carbohydrate diet. Horleys supported the claim because of its relevance for endurance sports food products and because there are already a large number of such products with the claim on the market. The NZGMA also argued that the claim might be useful, given emerging evidence of a positive effect from the consumption of carbohydrate diets.


Horleys and Diabetes Australia did not support restrictions on the sugar content as the former stated that simple sugars are often required in sports foods for rapid absorption, while the latter argued that many high sugar foods like fruit have a low Glycaemic Index and contain significant amounts of dietary fibre, vitamins and minerals. Dietary fibre and energy density were therefore considered more suitable disqualifying criteria. Horleys argued that sports food are not formulated with the intention of providing fibre and may even be detrimental to sports performance, so did not support disqualifying criteria for dietary fibre. Griffins and Coles thought consideration could be given to both sugar and dietary fibre. The former thought that the type of sugar as well as the level was important.
SA Dept Human Services specifically opposed the claim, given the absence of a dietary guideline to change the consumption of carbohydrates. FTA Vic noted that high carbohydrate claims could be misleading.

SUGAR

Several submitters generally supported the proposed claims and criteria for sugar (Coles, Dairy Farmers, FTA Vic, CHC, Natural Products, NZ Nutrition Foundation, Diabetes NZ). Sugar Australia strongly supported the proposed changes except for ‘no added sugar’. Sugar Australia also strongly criticised ANZFA for several statements, which they believed were scientifically unsubstantiated. The Draft Assessment Report stated that ‘caution is advised given the evidence that diets high in sugar are associated with obesity and dental caries, particularly in children’, whereas Sugar Australia’s argued that:




  • dental caries incidence has declined dramatically over the last few decades in most highly developed countries while sugar consumption has changed very little;

  • DMFT (decayed, missing or filled teeth) scores have tended to rise in 90 countries with sugar consumption, there was no evidence of a relationship when 29 industrialised nations were analysed separately;

  • the FAO/WHO Report on Carbohydrates concluded that sugar intake has no adverse health effects except for dental caries. Their recommendation however is that ‘prevention programs to control and eliminate dental caries should focus on fluoridation and adequate oral hygiene and not on sucrose intake alone’;

  • there is no direct causal relationship between sugars and overweight in children or adults.

In contrast NZDA contended that sugar has for a long time been linked to the development of dental caries and an excess intake of sweetened drinks has been implicated in the growing overweight and obesity problems in children.


Sugar Australia also took issue with the statement that ‘foods that are high in refined sugars are energy dense but do not provide vital nutrients’, arguing that a high simple carbohydrate diet is not a greater risk for inadequate intake of certain micronutrients than a high complex carbohydrate or a fat rich diet in overweight subjects and added sugars between 5-16% of energy do not appear to have any detrimental effect on micronutrient intakes. Lastly Sugar Australia criticised the statement that ‘in the context of knowledge that foods high in sugar are often chosen instead of more nutritious, necessary foods’, by providing references, which suggest that over half of the sugars consumed in Australia come from food groups promoted as nutrient dense (i.e. milk, fruit, vegetables and cereals) and foods high in sugar are not in practice replacing more nutritious necessary foods as nutrient quality would reduce as the proportion of sugar increases.
National Foods specifically opposed the sugar claims on the basis that legislating on the levels of sugars in foods fosters the myth that ‘sugar is bad’. It was concluded that communication should be in the context of total diets and not that ‘all sugar is bad’. CCIWA considered the allowable sugar claims too complex and preferred a more simple generic based classification of claims.

LOW (IN) SUGAR(S) and REDUCED (IN) SUGAR(S)

Three submitters specifically supported the claims (AFGC, SA Dept Human Services, NHF NZ) while the ADHB opposed ‘low (in) sugar(s)’. NHF Australia and NZDA recommended that ‘reduced in sugar (s)’ claims should include a reduction of at least 25% energy. While the NZ Nutrition Foundation supported the reduced claim, they preferred criteria of at least 33% reduction rather than 25%.



NO ADDED SUGAR(S)

Diabetes Australia and the DAA both supported a prohibition of the claim, arguing that it causes a great deal of confusion for people with diabetes and their caregivers. InforMed Systems preferred a prohibition for similar reasons. In contrast NZJA argued that the claim helps support public health advice to consume only moderate amounts of products containing added sugars.


Industry opinions was divided on the proposed disclaimers alerting consumer to the declaration of sugars in the NIP and the presence of natural sugars for ‘no added sugar(s)’ and ‘unsweetened’ claims. The AFGC, ASDA, National Foods, Sugar Australia, CMA, Nestlé, Unilever, NZJA opposed them, while with GWF, Coles, Dairy Farmers, FTA Vic and Griffins supported them. Reasons for opposing the disclaimers were that:

  • they amounts to double labelling and will result in enormous re-labelling

  • consumers are well aware of NIPs as demonstrated in ANZFA’s qualitative consumer research

  • there is no evidence that consumers misunderstand the claim

  • CoPoNC criteria are already equivalent to or are stricter than those used in other countries.

Sugar Australia also took issue with ANZFA’s statement that ‘studies show that extrinsic rather than intrinsic sugars are the most damaging to teeth’, providing references including a WHO report, which suggest that the two types of sugars are indistinguishable and intrinsic sugars are not necessarily safe for teeth.


In contrast health professionals and a consumer group supported the proposed disclaimers (CHC, SA Dept Human Services, Diabetes Australia, DAA, NHF Australia, ADHB, CPH, Diabetes NZ, NHF NZ, NZDA, NZ Nutrition Foundation, NZ CI). Tatua stated that the drafting provides clarity for the consumer. Diabetes Australia and DAA proposed the specific wording be ‘This product contains natural sugars. See nutrition panel for total sugars content’. In addition, they supported the inclusion of sugar alcohols in the list of sweeteners for the criteria, given that they are a source of energy and cause confusion amongst consumers. The NHF NZ noted that the form of starch and its degree of processing are as important as the natural sugar content in food.
ASDA, NZJA and HWA did not support concentrated fruit juice being a prohibited added sweetener for ‘no added sugar(s)’ claims. They argued that it differs from the other prohibited sweeteners because it is mostly used to prepare juice products. They also noted that a fruit juice product prepared from juice rather than concentrate would be able to make the claim but a comparative product made from concentrated juice would not, even though the products would have equivalent sugar levels. They therefore considered this unjustifiable. The NZJA also added that it is important for manufacturers to be able to use the claim to distinguish 100% fruit juice made from concentrate from sweetened juices and fruit drinks. Furthermore HWA stated that the consequences of the proposed drafting might be a trend to replacing fruit juices with sugar as it is more cost effective for manufacturers. They noted that they presently sweeten many of their infant foods with fruit juices instead of sugar. Similarly Natural Products sweeten their fruit preserves by adding apple juice concentrate. As they believed that consumers normally associate sugar with white sugar, they proposed that the claim be permitted for products where no extra white sugar is added.
Finally, HWA noted the differences between concentrated and deionised fruit juice. Deionised fruit juices are highly refined, lack fruit flavour volatiles and contain little more than fructose, whereas concentrated juices are not as highly refined, contain flavour volatiles and vary in their nutritional content.

UNSWEETENED

While many submitters specifically supported the claim and the proposed criteria (Natural Products, Griffins, ADHB, NZ CI, NZDA, Diabetes NZ), one opposed the claim (SA Dept of Human Services) and several opposed the disclaimer for the reasons provided under the ‘no added sugar(s)’ claim (AFGC, ASDA, CMA, National Foods, Unilever). SA Dept Human Services did not consider the claim very meaningful in relation to advising the public about processed foods which are reduced in sugar.

CPH noted that there is inconsistency in that concentrated and/or deionised fruit juice is allowed in products that are ‘unsweetened’ but not in ones bearing a ‘no added sugar(s)’ claim. CPH also said that ‘no added sugar’ and ‘unsweetened’ are technically the same except for the allowance of artificial sweetener, so for clarification proposed that ‘ no added sugar and ‘artificially sweetened’ only be permitted.

SUGAR FREE

Many industry submitters, both within Australia and New Zealand and internationally, and a few consumers, specifically and sometimes very strongly opposed the prohibition on ‘sugar free’ claims (AFGC, Evan Confectionary, Foodsense, National Foods, Mandurah, NutraSweet, Snow Confectionery, Wrigley, Noelene Hay, Donna Horseman, CMA, Nestlé, Unilever, InforMed Systems, NZGMA, CCC USA, Danisco USA, EPA, ISA, Keller & Heckman, Isomalt Palatinit GmbH). The main reasons were:




  • residues of sugar left after processing of ingredients are of no dietary significance;

  • there is no opportunity for consumers to easily identify ‘sugar free’ foods to support public health advice to consume only moderate amounts of sugars;

  • inconsistency with regulatory approaches taken overseas (principle 6 of the review of P234) and with Codex which could result in a serious challenge under the WTO TBT agreement;

  • the belief that the proposed drafting is inconsistent with fair trading laws, which prohibit misleading or deceptive conduct, rather than ‘free’ claims and concern that ANZFA’s interpretation of fair trading law is unnecessarily technical and literal. It was noted that ‘free’ claims are only as good as the latest detection methods and limits and that the trace amounts of sugar are as close to zero as is possible;

  • products that contain no sugar can not be promoted as ‘sugar free’

  • inconsistency with ‘lactose free’, ‘gluten free’, ‘lead free’ and ‘tooth friendly’;

  • signatories of the Code of Conduct for the Provision of Information on Food Products in Australia are currently required to comply with CoPoNC, so the costs of re-labelling are very significant, especially for manufacturers labelling for both domestic and export markets. This disadvantages the competitiveness of the local industry;

  • a prohibition would impose more prescriptive legislation, which is not cost minimising;

  • the confectionary industry has invested heavily in ‘sugar free’ claims based on the CoPoNC framework and on consumer demand. In Australia the value of the ‘sugar free’ confectionary sector in 2001 was approximately A$15.2 million. In addition, the ‘sugar free’ gum category in 2001 is estimated at A$150 million). It has become a recognised growth sector;

  • polyols have been developed for the ‘sugar free’ market. The small amounts of residual sugars that are not hydrogenated are technically unavoidable and are covered by polyol specifications for identity and purity;

  • the belief that the claim is a useful, simple and easily understood nutrition message as evidenced by the huge growth in sales. Noted that no consumer has complained to industry that the claim is false or misleading;

  • the belief that consumers are aware on reading the NIP that such products have a tolerance. The NIP can be viewed as a disclaimer;

  • an overwhelming amount of literature supporting the use of ‘sugar free’ gum to increase saliva flow and to promote stronger and healthier teeth;

  • innovation will be stifled.

The above submitters varied in their preferred criteria for a ‘sugar free’ claim, with the following alternatives being expressed:


  • less than 0.5 g per 100 g solids and 0.5 g per 100 ml liquids (Codex criteria);

  • no more than 0.2 g of sugars per 100 g of the food or 0.1 g sugars per 100 g of liquid food (CoPoNC criteria);

  • less than 0.5 g per serving;

  • ‘no detectable’ sugar based on standard method of analysis;

  • no sugar;

  • criteria being developed for foods that are of some health relevance (e.g. ‘sugar free’ chewing gum).

Nestlé also suggested a claim for ‘sugarless’, while several submitters accepted as their last preference an alternative term to ‘sugar free’ which conveys that sugar does not contribute significantly to the energy content of the food.


In contrast to the strong opposition above, a few submitters expressly supported the prohibition of ‘sugar free’ claims (Coles, Sugar Australia, SA Dept Human Services) because they considered the claim to be misleading and because it is inconsistent with other free claims such as ‘GM free’.

VERY LOW (IN) SUGAR(S)

Many industry groups and a few public health groups opposed use of the claim ‘very low (in) sugar(s)’ as a replacement for ‘sugar free’ claims (Foodsense, Mandurah, National Foods, NutraSweet, Wrigley, Natural Products, NZGMA, ADHB, CPH, NZDA, CMA, CCC USA, Danisco USA). Industry stakeholders argued that:




  • the claim would be false and misleading, as it would indicate a glycaemic effect when products would contain negligible amounts of sugar and have no glycaemic response;

  • consumers would not be able to identify sugar free products, resulting in high levels of confusion and scepticism, particularly amongst consumers who have been comfortable with ‘sugar free’ products for over a decade;

  • many consumers may assume that sugar has been added to products;

  • the claim is not consistent with Codex or the US and Canada’s regulations;

  • considerable costs would be required with regard to education.

The NZDA felt that the claim was unnecessary and argued that foods using this claim are likely to be high in fat or low in fibre.


In contrast to those that opposed the claim, SA Dept Human Services, Griffins and NZ Nutrition Foundation specifically supported it and the proposed criteria, given the rationale for prohibition of ‘sugar free’.

DIETARY FIBRE

AFGC, Arnott’s, Dairy Farmers, Goodman Fielder, MGC, Dunn, Son and Stone, Nestlé, Mainland Products, Natural Products, Tatua and NZ CI generally supported the proposed drafting with the belief that they agree with CoPoNC provisions and with the current Codex recommendations, which are being finalised. CMA and Unilever agreed with the exception of the proposed disqualifier (see ‘disqualifier to prevent high fat food making fibre claims’), while HWA were supportive except for the ‘enriched’ claim because it was not consistent with other nutrition claims.


The MoH NZ, NHF Australia and NHF NZ recommended that criteria for fibre claims be based on a g per 100 g basis, rather that g per serve because manufacturers may manipulate serving sizes in order to make the claim. NHF Australia recommended though that fruit and vegetables should be assessed on a per serve basis as certain claims would not be allowed on a per 100 g criterion. Natural Products believed the criteria should be expressed as a percentage for the same reasons. NZ Nutrition Foundation, ADHB and NZDA all wanted to see fewer claims for dietary fibre. NZ Nutrition Foundation and NZDA recommended ‘source of fibre’ and ‘high fibre’ claims while ADHB proposed ‘high fibre’ only. CCIWA considered the allowable fibre claims too complex and preferred a more simple generic based classification of claims.
FTA Vic and Dunn, Son and Stone expressed reservations about the fact that the definition for ‘fibre’ is only based on the method of analysis. Dunn, Son and Stone queried whether analysis could keep apace with the developing science, while FTA Vic did not believe that there is currently enough information about fibre and its effects and InforMed Systems believed that there is no such thing as fibre. MFD had serious concerns with the fact that the AOAC method is the prescribed method of analysis for dietary fibre, whereas the NZ Food Composition Database uses the modified Englyst method, thereby placing New Zealand food manufacturers at a distinct disadvantage to their Australian counterparts.
Finally FTA Vic recommended that the term ‘excellent’ be defined.

DISQUALIFIER TO PREVENT HIGH FAT FOODS MAKING FIBRE CLAIMS

A large number of submitters provided comment on the use of disqualifying criteria for dietary fibre claims, with the majority, who were mostly industry stakeholders, opposing it (Arnott’s, ADC & ADPF, AFGC, GWF, Goodman Fielder, MGC, National Foods, Pauls, CSIRO, Diabetes Australia, DAA, Fonterra, InforMed Systems, Tatua, MFD, CMA, Nestlé, Unilever). The arguments against use of disqualifying criteria for fat, saturated fat and trans fatty acids were that:




  • it is inappropriate and potentially misleading to prohibit a claim based on arbitrary disqualifying criteria for which ANZFA has not provided adequate scientific substantiation (e.g. on what basis was fat and saturated fat chosen? Why were salt and sugar not included?) Dietary fibre and fat do not share similar diet-disease relationships;

  • it creates a trade barrier as no other international regulations have a requirement for fat and saturated fat levels when making a dietary fibre claim;

  • it is inconsistent with other recommendations (except for omega fatty acids);

  • it withholds potentially useful information when the disqualifying criteria may not be relevant to an individual’s needs (e.g. fibre is recommended for constipation. A low fat diet is inappropriate for elderly people who are malnourished and who have constipation. Other vulnerable groups may include pregnant and breastfeeding women);

  • foods that are currently recommended in dietary guidelines for their fatty acid profile, such as seeds and nuts would not be able to make a fibre claim, despite being an excellent source and despite their link to protection against heart disease. Diabetes Australia and InforMed Systems therefore only supported disqualifying criteria for foods that are high in saturated fat;

  • dairy based beverages with a fat content of 1.5% (i.e. low fat) which have oligosaccharides and fibre added would be prevented from making a claim;

  • information on total fat and saturated fat are given in the NIP;

  • all saturated fatty acids are not ‘bad’. For instance naturally occurring trans fatty acids in dairy fats have potentially beneficial physiological effects and stearic acid in cocoa butter does not raise blood cholesterol, nor increase risk of heart disease;

  • choice of foods is reduced because the criteria do not recognise mixed foods (e.g. muesli yoghurt) and discourages innovation such as fortifying foods with certain fibres.

Fonterra, NHF Australia and NHF NZ queried the scientific basis for determining the maximum level of energy from fat and saturated fat, while AFGC considered that dietary modelling should be conducted to determine what desirable food categories would be prevented from carrying useful fibre claims. GWF proposed that the criteria should be increased to maintain consistency with the fatty acid claims in Standard 1.2.8 (i.e. that total saturated and trans fatty acids comprise no more than 28% of the total fatty acid content).


There were some submitters who supported the concept of disqualifying criteria (Coles, SA Dept Human Services, Griffins, NHF NZ, NZ Nutrition Foundation), although a few disagreed with the criteria proposed. NHF NZ considered that more information is required before finalising the proposed disqualifying criteria; SA Dept Human Services advocated that sugar should be included in addition to ANZFA’s proposal and NHF Australia and NHF NZ supported a restriction on foods that are very high in energy, in addition to ANZFA’s proposal.

SOURCE OF FIBRE

All but one submitter who provided comment on this claim supported it (SA Dept Human Services, Natural Products, NZDA, NZ Nutrition Foundation) although two supporters advised that criteria should be 3 g of fibre per 100 g of food, as recommended by Codex and prescribed in UK requirements (NZDA, NHF NZ). DAA and Diabetes Australia felt that the value for meal type products is too high and therefore recommended 1 g per 100 g or trebling the value for individual foods on a per serving basis (i.e. 4.5 g per serving). ADHB opposed the claim.



HIGH FIBRE OR GOOD SOURCE OF FIBRE

Five submitters supported the claim (SA Dept Human Services, Natural Products, ADHB, NZDA, NZ Nutrition Foundation). There were, however, differences expressed on the criterion.

MoH NZ preferred criterion with a higher value than the proposed 3 g per serve or 4 g per 100 g for main dishes and meal type products, as did NHF NZ, ADHB, and NZDA who all supported criteria of 6 g per 100 g as is required in the UK. In contrast DAA and Diabetes Australia supported a lower value (2 g per 100 g) or trebling the value for individual foods on a per serving basis (i.e. 9 g per serving). NZDA also wished to have disqualifying criteria of less than 10 g fat per 100g as recommended by Codex.

VERY HIGH FIBRE OR EXCELLENT SOURCE OF FIBRE

SA Dept Human Services supported the claim, while AFGC and Nestlé opposed the increase in the criteria from 6 g per 100 g for meal products (as prescribed in CoPoNC) to 8 g on the basis that there was no justification. Nestlé stated that the net weight of meal products is generally 300-400 g, which means that 24-32 g dietary fibre per serve (or 80-106% of the reference value in Standard 1.2.8 for dietary fibre) would be required to make the claim. DAA and Diabetes Australia also felt that the criterion for meal type products was too high and suggested 4 g per 100 g or trebling the value for individual foods on a per serving basis (i.e. 18 g per serving).



INCREASED FIBRE, FIBRE ENRICHED AND HIGHER FIBRE

While SA Dept Human Services supported the claim, ADHB did not. Natural Products advised that the criteria should be modified to at least 25% more fibre than the reference product, with a statement of comparison with the reference product and meals must contain more than 4 g fibre per 100 g.



SALT AND SODIUM

Several submitters supported salt/sodium claims (Dairy Farmers, FTA Vic, CHC, SA Dept Human Services, Tatua, HWA) on the basis that intakes are high and low salt or salt reduced products need promoting. Nestlé and Unilever generally agreed with the claims too, although Unilever opposed the disclaimer for ‘no added salt’ and they both opposed the prohibition of ‘salt free’ claims.


Two public health agencies in New Zealand supported fewer salt claims. ADHB proposed that only ‘reduced salt/sodium’ be permitted, while NZ Nutrition Foundation supported low and reduced claims only, with a criterion for reduced claims of one third less than the normal counterpart.
NZDA recommended that consideration be given to including a total salt level as a criterion because consumers are confused about the relationship between salt and sodium.

LOW (IN) SALT/SODIUM

There was little comment provided in relation to this claim. SA Dept Human Services, MoH NZ and Natural Products supported the criteria while ADHB opposed the claim. Mainland Products believed that consideration should be given to allowing ‘low salt’ claims on bacon and ham products were significant salt reduction (e.g. 60%) have been achieved compared to the reference food.



REDUCED (IN) SALT/SODIUM

Again there was very little comment provided on this claim. SA Dept Human Services, Natural Products, ADHB and MoH NZ agreed with the proposed recommendations, while NZDA stated that the claim is unhelpful because products that are relatively high in salt can still make the claim.



NO ADDED SALT/SODIUM

Three public health agencies specifically supported this claim and the disclaimers (SA Dept Human Services, NHF Australia, NHF NZ) as did the NZ CI). In contrast four industry groups opposed the disclaimers (AFGC, Cerebos, Unilever, Natural Products) as they argued that consumers are well aware of NIPs, the disclaimers duplicate labelling and have huge cost implications in terms of re-labelling. Cerebos noted that the criteria are inconsistent and more imposing than the ‘no added sugar’ claim and therefore recommended the drafting state ‘a reference to the declaration of sodium in the nutrition information panel is made in conjunction with the claim’. ADHB opposed the claim.


NZDA, InforMed Systems, Dr Trevor Beard and Pritikin all had concerns about the sodium content of the foods. NZDA proposed that the NIP must contain a statement on the total sodium content of the food as well as a statement on the front label stating the natural sodium content. Dr Beard, however, recommended that the criteria should mean that no sodium compound has been added and the sodium content should be 120 mg per 100 g unless the claim includes the words ‘but note the sodium content’, which should be printed in the same font and size as the claim. Criterion of 120 mg per 100 g was also recommended by Pritikin and is consistent with InforMed System’s suggestion that ‘no added salt’ should only be permitted for foods naturally low in sodium. Dr Beard stated that his recommendation would:


  • bring the claim into line with ‘low (in) salt’, which limits sodium even when sodium is not mentioned;

  • allow flexibility in that the other 43 sodium compounds permitted as food additives can be used, yet their use is limited to moderate amounts;

  • permit every unprocessed food in the Australian food tables to make the claim with the exception of eggs and kidneys. Processed eggs and kidneys tend to have a sodium content of 120 mg per 100 g;

  • prevent seafood stored in refrigerated sea water from making the claim. (Pritikin also noted that ‘tuna in spring water’ with ‘all natural ingredients’ would be prevented from making a claim as the sodium content is 260 mg per 100 g);

  • prevent processed plants from the beet family from making a claim (e.g. canned beetroot);

  • provide for simple labels whilst also serving the preventive approach for regulating salt and sodium.



SALT/SODIUM FREE

Six industry submitters specifically opposed the prohibition of ‘salt/sodium free’ claims (AFGC, ASA, NZGMA, Natural Products, Nestlé, Unilever). Arguments were that the claim is permitted internationally, it supports the draft Australian Guidelines (2002) and the criteria in CoPoNC are equivalent to other countries. Suggested criteria for a claim in order of preference were:


Pritikin did not believe that claims for ‘salt/sodium free’ should be permitted.


VERY LOW (IN) SALT

SA Dept Human Services specifically supported the claim while ADHB and Natural Products opposed it. Natural Products pointed out that the claim would confuse consumers.



GLUTEN

Industry groups, Dairy Farmers, FTA Vic, HWA, Natural Products, HWA and Unilever agreed with the existing criteria in Volume 2, although Unilever noted the inconsistency between the allowance of ‘gluten free’ claims with ‘no detectable gluten’ and a prohibition on other ‘free’ claims. CHC also noted the inconsistency, adding that the criteria are contrary to the advice from the ACCC and NZ Commerce Commission. Mainland Products believed that ‘gluten free’ is the only claim that people who are intolerant to gluten can use.


In contrast, however, a number of public health agencies strongly disagreed with the criteria for ‘gluten free’ and ‘low gluten’ claims. New Zealand submitters were especially concerned for the following reasons:


  • the criteria are inconsistent with the new proposed Codex criteria (NZDA);

  • food choices for people with coeliac disease are even more restrictive than before (NZDA);

  • the emphasis is not on evidence based scientific research (MFD, MoH NZ, NZDA). NZDA pointed out the December 2001 issue of The Journal of the American Dietetic Association concluded that there is little available research to make gluten claims more restrictive. MFD and MoH NZ both referred to their submissions made in P254 (Minor Amendments Omnibus) and MFD also noted submissions made by Lyn Gillanders through the NZ Food Composition Steering Committee.

The following recommendations were made by predominantly public health agencies in New Zealand and Australia:




  • in order to allow for use of malt from rice or other gluten free grains, criteria for ‘gluten free’ should be ‘no detectable gluten, oats or malt or malt products derived from gluten-containing grains’ (DAA, Diabetes Australia);

  • align ‘gluten free’ with Codex criteria (ADHB);

  • ‘no detectable gluten’ for ‘gluten free’ claims should be based on standard methods of analysis (CMA, Nestlé, CHC);

  • replace ‘gluten free’ with ‘very low gluten’ with the criterion of limiting gluten to 3 mg per kg in accordance with what is acceptable to the Coeliac Society (CHC);

  • possibly align ‘low gluten’ criteria with a ‘very low gluten’ claim for consistency with other nutrient claims (Tatua);

  • in order to allow for use of malt from rice or other gluten free grains, criteria for ‘low gluten’ should be ‘no more than 20 mg gluten per 100 g of the food and no oats or malt or malt products derived from gluten-containing grains’ (DAA);

  • prohibit ‘low gluten’ claims because coeliac disease is an autoimmune disease that requires complete removal of gluten from the diet. Low gluten diets are not recommended (Diabetes Australia);

  • to reassess the inclusion of oats in the criteria for gluten claims because avenin in oats is different from gluten and there is now sufficient evidence demonstrating that it has no effect on sufferers of celiac disease (InforMed Systems);

  • to reassess the inclusion of oats and malt for gluten claims as ANZFA has not done adequate analysis (MoH NZ).



LACTOSE

HWA, Unilever, Dairy Farmers, FTA Vic, Mainland Products, NZDA, Diabetes Australia and Natural Products all supported the existing criteria for ‘low lactose’ and ‘lactose free’ claims, although Unilever and CCIWA noted that the ‘no detectable’ criteria for ‘lactose free’ is inconsistent with a prohibition on other ‘free’ claims. CHC also noted the inconsistency, adding that the criteria are contrary to the advice from the ACCC and NZ Commerce Commission and that ‘very low lactose’ criteria therefore need to be set. Tatua also supported a ‘very low’ claim for consistency with other nutrient claims. Natural Products and Diabetes Australia supported a ‘lactose reduced’ claim but NZDA did not as they stated that such products may still contain a significant amount of lactose and those with lactose intolerance are advised by dietitians to only consume a diet free or low in lactose.


Fonterra queried the scientific evidence to substantiate a cut off value of 0.3 g lactose per 100 g for ‘low lactose’ claims as they stated people with lactose intolerance are likely to be able to consume more than this without problem. Fonterra also queried the justification for not using the same criteria as a ‘low sugar’ claim (i.e. 2.5 g lactose per 100 ml beverages and 5 g lactose per 100 g for all other foods). A reference was provided to support this.
CMA and Nestlé preferred that ‘no detectable lactose’ for ‘lactose free’ claims be based on standards methods of analysis. Tatua stated that the limit of detection for lactose by gas chromatography is 0.1%, so for ‘lactose free’ claims, food need to be tested at a higher concentration than an ‘as is’ basis in order to quantify below 0.5%.

DIET

Some submitters who commented on ‘diet’ opposed it (InforMed Systems, NZ Beef and Lamb, ADHB, NZDA, SA Dept Human Services, Diabetes Australia, DAA) arguing that it:




  • is scientifically meaningless as it does not relate to any specific nutrient and is therefore potentially misleading (InforMed systems, NZ Beef and Lamb, DAA);

  • is not necessary because ‘low joule’ can be used and is preferred (Diabetes Australia, InforMed Systems); and

  • is simply a marketing ploy to encourage people to make short-term changes rather than long-term healthy food and lifestyle choices (NZDA).

Several submitters did however agree with the claim and the criteria (NZ CI, Natural Products, NHF Australia, CHC, Goodman Fielder, GWF, ASDA). In addition, three submitters who opposed the claim supported the ‘low joule’ criteria in the event that the claim is included (SA Dept Human Services, DAA, Diabetes Australia). SA Dept Human Services also preferred that the criteria include that ‘the words ‘low joule’ be stated in close proximity to the ‘diet’ claim in order to clearly associate the two terms’. Natural Products preferred that the criteria be expressed as a percentage.


Dunn Son and Stone, FTA Vic, Nestlé and Unilever opposed the claim being limited to the criteria for ‘low joule’. Nestlé, AFGC, Coles and Unilever noted that dairy dessert and yoghurts, which currently fulfil CoPoNC criteria would not be able to be made under the ‘low joule’ criteria, thus reducing choice and information for the consumer. AFGC pointed out that the net result would be significant costs in terms of re-labelling, reformulations and education. Nestlé confirmed this by estimating that 80% ($11 million) of its growing ‘diet’ business will be lost to competing brands. Nestlé therefore recommended the retention of ‘not more than 60% of the energy content of the same quantity of the reference food with an absolute reduction of at least 170 kJ per 100 g food when compared with the same quantity of the reference foods’.

LITE/LIGHT

This claim was very controversial in that many submitters commented on it and a wide range of strong opinions were provided. Those in support of the claim and the criteria were mainly from industry (CMA, Nestlé, Unilever, AFGC, Dairy Farmers, FTA Vic, GWF, Goodman Fielder, Paradise Foods, CHC, Natural Products, Mainland Products) arguing that they are consistent with Codex and are well established in the market place.


The majority of public health agencies and consumers, however, either opposed the claim or aspects of the criteria. ADHB, NZ Beef and Lamb, Karen Cashel and Helleur did not support the claim, principally because they viewed it as misleading. Karen Cashel further argued that:


  • use of the claim instead of standardised terms like ‘reduced’ are likely to breach the second and third primary objectives in the ANZFA Act;

  • there are alternative terms available (e.g. ‘reduced’);

  • consumers are likely to attribute beneficial nutrition attributes to ‘light/lite’ claims when they relate to non nutritional attributes;

  • adding a disclaimer to the ‘light/lite’ claim (e.g. ‘lite in fat’) will not assist consumers in interpreting ‘lite’ claims without a qualifier (i.e. those with a non nutritional attribute) as being possibly high in fat;

  • an approach that minimises misleading consumers should be the driving criteria for this claim;

NHF Australia, SA Dept Human Services, Diabetes NZ and NHF NZ supported a prohibition on the use of the claim in relation to non-nutritional characteristics such as colour. NHF Australia argued that research undertaken by them indicated that aesthetic ‘light/lite’ claims are misleading and confusing and that initial responses to the claim related to fat content, not to colour or texture. As an alternative Karen Cashel suggested prohibiting the claim when it relates to a nutrient or energy but permitting and defining the claim when it relates to non-nutritional attributes such as colour.

Kemp only wanted the label to relate to fat content, while SA Dept Human Services supported the claim when it related to energy or fat as prescribed in the US and Canada. The latter also added that the ‘low fat’ or ‘low joule/calorie/energy’ should be made in close proximity to the ‘light/lite’ claim so that consumers make the association between the two terms.
Several submitters objected to the criterion allowing reduced foods to make the claim because the foods may not reflect a nutritionally significant reduction in nutrient content (SA Dept Human Services, DAA, Rosemary Stanton). Tatua contended that it is potentially misleading when the claim may apply to very low, low or reduced. Rosemary Stanton pointed out that a margarine that is reduced in fat is not ‘light/lite’ in fat or kilojoules and Lawton similarly argued that reduced cheese that are ‘light/lite’ still have 20% saturated fat. DAA and Tatua stated that if the criteria permit the claim to be made on reduced foods, then a comparison statement should also be required in conjunction with the claim. In contrast NHF Australia supported the ‘reduced’ criterion but added that when the claim relates to ‘reduced’ total fat and sugar, a 25% reduction in energy content should also apply. NHF Australia cited findings from a review of energy intake and weight loss to support their additional criteria, which included:


  • dietary fat is not an independent risk factor for development and progression of overweight and obesity;

  • dietary fat reduction alone without energy restriction does not achieve weight loss in overweight and obese individuals;

  • energy intake rather than macronutrient composition is the most important determinant of weight loss in overweight and obese individuals.

NZDA and NHF NZ had a similar recommendation except that they suggested a 25% reduction in energy and/or fat content on all products with the claim (although NHF NZ believed that ‘light/lite’ claims in relation to salt/sodium should be exempt this additional criterion). NHF NZ also recommended that a statement of comparison with the reference food should be required and for claims that relate to salt, there should be a 25% reduction in salt and a statement of comparison with the reference food. NZ Consumers’ Institute supported qualification of the claim. HWA believed that clause 1.5 of the draft variations should include the claim ‘light/lite’.



REGULATORY FRAMEWORK

Nearly all submitters commented on the regulatory framework. Most submitters explicitly supported option 1, which was to adopt the proposed draft variation to Std 1.2.8 Nutrition Information Requirements contained in the Draft Assessment Report. The Australian supporters were Arnott’s, Dairy Farmers, CCAAC, Dunn, Son and Stone, SA Dept Human Services, NSW Health Dept, Karen Cashel, CSIRO, Diabetes Australia, NHF Australia. Cerebos was the only Trans Tasman group to support option 1 while New Zealand support came from ASA, CAANZ, Fonterra, Independent Fisheries, MPA, Mainland, Natural Products, NZGMA, NZTBC, NZ Veg & Potato, Tatua, CPH, MoH NZ, NHF NZ and PHS.

In addition, the NZ Nutrition Foundation supported Option 1 but had concerns about the proposed P250 Code of Practice given CoPoNC history and queried why FSANZ wasn’t looking at what the majority of submitters wanted (full regulation).
Three industry groups explicitly opposed Option 1 (CMA, who recommended amendments to the proposed draft variations be adopted), FTAWA and National Foods.
Some submitters did not supports Option 1 or Option 2 but provided comment on the regulatory framework. Seven submitters supported full regulation (CCAAC, ADHB, NZ CI, Diabetes NZ, Griffins, HWA and InforMed Systems). Another four supported ‘co-regulation’ (ADC & ADPF, PBG, CCIWA and CHC). Furthermore, the AFGC, PBG, FTAWA, MGC, and National Foods supported a ‘Code of Practice’. Pritikin explicitly stated that it did not support self-regulation.
Other variations on co-regulation were expressed. CCIWA, FTAWA, MGC and PBG supported the adoption of nutrition claims that are of public health and safety concern (e.g. gluten and lactose) in Standard 1.2.8, but recommended that all other claims be in an industry Code of Practice. Unilever supported a Code of Practice for all claims, except for those claims where a review demonstrated that they do not comply with Volume 2 in which case they should be moved into full regulation. It also requested that ‘free’ claims be controlled under food legislation or other relevant laws. In addition it supported the AFGC submission.
Lastly several submitters made reference to the development of policy guidance on health, nutrition and related claims. The ADC & ADPF, National Foods and Queensland Health suggested that P234 should not proceed until such time as policy guidance has been given.

OTHER SPECIFIC COMMENTS

Submitters raised a number of other specific issues as indicated below:




  • Bioavailability of iron and other nutrients (NZ Beef and Lamb). Submitters believed there should be a ‘source of iron’ claim with criteria relating to bioavailability and consideration given to claims for other nutrients for which bioavailability is variable such as zinc.



  • Glycaemic Index (GI) claims (SA Dept Human Services, HWA, Griffins). With the exception of SA Dept Human Services, submitters supported the development of GI claims because such claims are already in the marketplace and they are used in the nutrition management of people on weight reduction diets, on diets for diabetes and diets related to sports. References for determining criteria were provided, including Miller et al. The GI Factor – The Glucose Revolution, Hoddler, 2000.



  • Claims relating to biologically active substances (MLA, SA Dept Human Services, DAA, Griffins). Submitters wanted consideration to be given on a framework for assessing evidence based new claims in relation to biologically active substances. They are included in the definition of ‘nutrition claim’ in Standard 1.2.8 and are in the prescribed declarations in an NIP (Clause 5 of Standard 1.2.8). It has also been mentioned in the new draft Dietary Guidelines for Australia.



  • Wholegrains (GWF, DAA, Rosemary Stanton, NZ Nutrition Foundation). Submitters wanted the issue raised, especially as it has been mentioned in the new draft Dietary Guidelines for Australia.



  • Food prepared for consumption (Cerebos). A recommendation was made for a clause to indicate that claims should relate to food as consumed to ensure products such as gravy and sauce mixes, instant desserts and powdered beverages are not disadvantaged by the criteria. This is consistent with Standard 1.2.8 Clause 14(2).



  • Commencement/transition period/ stock in trade (AFGC, CMA, FTAWA, GWF, PBG, National Foods, CCIWA, Nestlé, Natural Products, NZGMA). Submitters requested a significant phase-in period (e.g. 24 months) to accommodate ‘stock in trade’ and to allow manufacturers to amend their labels.



  • Review mechanism (GWF, Cerebos, NZ Beef and Lamb, Tatua). Submitters stated provision should be made as part of the finalisation of P234 for regular reviews to reflect the progression of nutrition science (e.g. every three years).



  • Imported foods (FBIA, Nestlé, Unilever). Submitters noted that a move from CoPoNC to regulation means that imported food must meet the requirements under the Imported Food Control Act 1992 in Australia and the Food Act 1991 in New Zealand. It will remove the inconsistency between imported and domestic food.



  • Cost/benefit analysis (AFGC). AFGC stated that given the reference to it not being possible to obtain an exact cost of the impact of P234 as outlined in the Draft Assessment Report, ANZFA cannot therefore carry out an appropriate cost/benefit analysis, as required by the COAG principles, or fulfil its requirements to prepare a regulatory impact statement and must abandon the proposal given there are no monitoring mechanisms in place for either of the existing regimes.



  • Prescribed nutrient declarations (Dairy Farmers). It was proposed that cholesterol in the NIP should be retained as consumers regularly seek this information.



  • Foods intrinsically high or low in a nutrient (Coles). It was noted that little mention has been made around this issue but considered it is an important requirement in CoPoNC that ought to be retained.

  • Emotive claims (Pritikin). Claims such as ‘guilt free’ and ‘baked not fried’ should be prohibited, as they are misleading.



  • Method of analysis (Karen Cashel). Analytical methods appropriate for measuring food components reported on labels should be specified in the regulations.



  • Use of disqualifiers/declarations (Clover, DAA). DAA recommended that disqualifying criteria not be used for nutrient claims conditions as it is not appropriate to withhold potentially useful information based on criteria which may not be relevant to a consumer’s particular needs and the NIP will provide sufficient information. Declarations other than those proposed for ‘no added sugar’ and ‘no added salt’ are of limited value given there is sufficient information in the NIP.



  • DRV or %NRV (AFGC, Karen Cashel). AFGC consider %DRV an appropriate substitute for %NRV while Karen Cashel commented that the concept of ‘daily’ for nutrients has not been used in the terminology for RDIs for a long time and should not be re-introduced as it is confusing and misleading.. %NRV is also confusing.

    RDIs are made on the basis of gender and age and negative health outcomes can result if too much of some nutrients are consumed. P234 raises a complex nutrition debate that needs to be debated if dietary recommendations across the age spectrum and gender are to be seriously considered.





  • Education (FTAWA, PBG, CPH). Submitters requested an education campaign be undertaken to inform consumers about changes to nutrition content claims.



  • Drafting (AFGC, Food Liaison, DAA, Nestlé, Fonterra). Nestlé queried whether the ‘and’ between the different criteria for beverages or other liquid foods ‘and’ all other foods in clauses 16-20, 23(3), 23(4) and 24(2)-24 (4) should be ‘or’ as a food cannot comply with both requirements. AFGC suggested that clause 16(2) is not necessary as this is already required in clause 12(2). AFGC also suggested that clause 25(1) (a) should read ‘unsalted or contains no added sodium as the case may be; and…’ Food Liaison suggested it would be less confusing to repeal clauses 12-18 and insert the revised clause commencing from clause 19. DAA suggested:




  • inserting ‘or is free of a nutrient’ after ‘does not have a nutritional property’ (clause 14);

  • inserting ‘content or is low in saturated fat’ after ‘saturated fatty acid’ (clause 19);

  • inserting ‘or is low in polyunsaturated fat’ after ‘polyunsaturated fatty acid’ (clause 20);

  • it should be made clear if the abbreviations ALA, DHA and EPA may be used (clause 21(5)).

Fonterra stated that a reference should be included in Std 1.2.8 to the effect that the criteria and conditions for making a vitamin or mineral claim is covered under Std 1.3.2 or alternatively vitamin and mineral claims should be moved from Std 1.3.2 to Std 1.2.8. Fonterra also sought clarification on whether criteria apply to ‘as purchased’ or ‘as consumed’ or both. Tatua:




  • suggested amending clause 18(2) to reflect liquid foods and all other foods: ‘…0.15 g of fat per 100 ml for beverages and other liquid foods and per 100 g for all other food’;

  • believed the requirements in clause 18(3) are a duplication of other labelling requirements (i.e. duplication of fat content in the NIP) but has the clarification for consumers;

  • stated that sugar definitions should include ‘Sugars has the same meaning as in Standard 2.8.1’;

  • suggested amending sub-clause 4 of clause 23 from ‘...in sugar must…’ to ‘…in sugar(s) must…’;

  • suggested that the last statement of proposed sub-clause 2(b) become sub-clause 2(c) for consistency in drafting;

  • suggested amending sub-clause 3 of clause 23 to ‘…in sugar must…’ to ‘..in sugar(s) must…’;

  • suggested amending sub-clause 1(b) of the drafting to include ‘content’ immediately after sodium.

1 A biomarker is one indicator of a person’s risk of developing a serious disease (eg blood cholesterol is a biomarker for the risk of heart disease).







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