All ten Australian submitters who provided comment on comparable claims (AFGC, Dairy Farmers, FTA Vic, Goodman Fielder, MGC, Sanitarium, SA Dept Human Services, Diabetes Australia, DAA, NHF Australia) supported ANZFA’s preferred criteria. Four New Zealand submitters (Fonterra, Natural Products, MoH NZ and the NZDA) and three trans-Tasman submitters (CMA, Cerebos and Unilever) also supported ANZFA’s recommendation. The NZ CI preferred the NZFR relative difference of 33%, but acknowledged that 25% is consistent with international standards.
Although the NZGMA noted that ANZFA’s preferred criteria would enable more foods to carry comparative claims in New Zealand, Mainland Products opposed the criteria on this basis, arguing that the current competitive advantage will be lost because it will be easier for international competitors to comply. The NZ Nutrition Foundation also opposed the recommendation because of concerns that consumers will be at risk of choosing a ‘reduced’ product with an 8% higher content. It therefore recommended a full education programme for New Zealand health professionals and consumers if the criteria are changed to a 25% relative difference.
Additional requests for variation to the preferred criteria were that:
all ‘reduced’ claims except those that relate to ‘reduced salt/sodium’ also include a reduction of at least 25% in energy when compared with a reference food (NHF NZ). The NHF Australia requested this too, but only for total fat and sugar claims;
criteria for reference foods be defined within legislation (NZDA);
specific comparable claims such as ‘reduced salt’ be prohibited (NZDA);
stock-in-trade provisions be given (Independent Fisheries);
definition of ‘in conjunction with’, as stated in the draft variations to the FSC be provided (Diabetes Australia and the DAA);
specification of minimum absolute differences be given, as is the case under CoPoNC, to prevent trivial differences being highlighted (Sanitarium);
that the terms ‘more than’ and ‘more’ be included to promote consistency and provide clarity (Sanitarium).
The issue of whether ‘free’ claims should be prohibited or not was extremely controversial. Eighteen submitters, who were mainly from public health agencies supported prohibition, while twenty-two submitters, all of whom were from industry, strongly opposed the prohibition.
There was support for the prohibition from Griffins, Mainland, Tatua, ADHB, CPH, MoH NZ, NHF NZ, NZDA, NZ CI, Coles, FTA Vic, MLA, SA Dept Human Services, Diabetes Australia, DAA, Pritikin, Rosemary Stanton and HWA. ASA also supported the prohibition but only when the claim is not ‘free’ of a nutrient. All of those who provided reasons for their support said that it was because of the need to conform to the interpretation of fair trading requirements, as given by the ACCC and NZCC. HWA and Coles therefore provided their support reluctantly. In addition, Coles and SA Dept Human Services supported an exemption for ‘free’ claims relating to gluten and lactose.
ADC &ADPF, AFGC, ASDA, Dairy Farmers, FBIA, Food Liaison, Foodsense, Goodman Fielder, Mandurah, MGC, Pauls, CMA, Nestlé, Unilever, CCC USA, Danisco USA, ASA, CAANZ, InforMed Systems, Natural Products, and NZGMA all opposed the prohibition for the following reasons:
the rationale is based on the ‘policy’ of the ACCC and NZCC rather than on protecting public health and safety or on preventing deception and fraud;
fair trading law prohibits manufacturers from misleading and deceptive conduct but does not prohibit ‘free’ claims (e.g. it would be misleading and untrue to say that a food with nil salt is ‘very low salt’). It is contrary to Section 14 of the NZ Bill of Rights Act 1990, which protects the right of free speech;
tolerance levels for nutrients that are not associated with allergy or intolerance, provide nutritionally appropriate and, from a responsible food manufacturers perspective, practical cut-offs;
consumers are not being misled because there is no physiological difference in consuming foods with insignificant amounts of a nutrient as opposed to equivalent foods with no nutrient;
there is no evidence of consumers being misled;
it is inconsistent with CoPoNC, Codex, the USA and the UK which all accept the concept of nutritionally insignificant rather than absolute absence. It therefore does not have regard to principle 6 in the Draft Assessment Report (‘consistency of preferred nutrient criteria with international and Codex criteria for nutrition claims. For the purpose of developing preferred criteria Codex criteria will act as an arbitrator’);
conflict arose when CoPoNC was first developed, but it was agreed that international practice would prevail. There has not been an issue since then and there has not been a challenge in the Australian courts despite ample opportunity;
it will stifle innovation.
AFGC, Goodman Fielder, CMA and Nestlé recommended that Codex criteria are adopted while Unilever and Danisco USA preferred retention of existing criteria. Goodman Fielder, Nestlé, CMA and Unilever stated that if their first preference is not adopted, then criteria should be based on ‘not detectable’ and in Nestlé’s case, preferably to a particular standard method. FBIA also supported ‘no detectable’ nutrient, while ASA and Natural Products supported zero tolerance.
Finally Goodman Fielder urged a resolution of the potential conflict between fair trading legislation and international practices for nutrition content claims at a whole-of-government and New Zealand level in order to avoid a WTO challenge.