Industry groups AFGC, National Foods, Pauls, Cerebos, CMA, Nestlé, Unilever, CCC USA, NZGMA, Natural Products and consumers Helleur and Horseman specifically opposed the prohibition of ‘fat free’, noting that:
there are no significant health issues with small tolerances;
it is inconsistent with ‘free’ claims for gluten and lactose and with Codex and international criteria;
while fair trading in New Zealand has set a legal precedent that ‘free’ is absolute, the Trade Practises legislation in Australia appears to rely on the principle of ‘average consumers’ comprehension’ and that consumers are not being misled or deceived by tolerances of 0.15% fat.
It was stated that prior correspondence from the ACCC to an Australian dairy company indicates that ‘no fat’ claims on dairy foods do not appear to be causing confusion to consumers and previous market data provided to ANZFA show consumer acceptance and understanding of the concept;
it is not cost-minimising. For example the cost to the dairy industry in the milk and yoghurt segments is estimated at $A167.9 million, when their annual growths are 3.9% and 20% respectively;
consumers can view the mandatory NIP for the actual fat content;
it removes the opportunity for consumers to easily identify ‘fat free’ foods;
claims that are consistent with requirements of the NZCC and ACCC will be prohibited;
it is more prescriptive legislation.
AFGC, Nestlé and CMA proposed that Codex criteria apply, while Natural Products stated that ‘fat free’ should be permitted with zero tolerance. Dairy Farmers advised ANZFA that ‘no fat’ has become more widely used and that the criteria for ‘fat free’ should therefore also be applied to ‘no fat’ and ‘not fat’.
Only four submitters specifically supported the prohibition (Griffins, NZ Beef and Lamb, MoH NZ, NZ Nutrition Foundation).
VERY LOW FAT
While Coles, CHC, SA Dept Human Services and MoH NZ agreed with using the current ‘fat free’ criteria in CoPoNC for ‘very low fat’ claims, CMA, CCC USA, Danisco USA, Natural Products and NZDA did not, on the basis that no other country provides for ‘very low fat’ claims, it would be confusing for consumers, consumers requiring such a diet should seek professional assistance and the claim may enhance consumption of low fibre, carbohydrate rich foods. AFGC only supported the claim if ANZFA maintains its position on ‘free’ claims. Griffins noted that ‘extra low fat’ and ‘very low fat’ claims are already being used by some manufacturers and are easily understood by consumers. Pritikin recommended that in addition to the fat criterion, products should contain <10% energy and SA Dept Human Services supported the inclusion of a statement about the actual fat content.
% FAT FREE
A large number of submitters provided comment on ‘% fat free’ claims, with opinions ranging from recommendations to prohibit the claim to requests for permission to apply the claim to more than just ‘low fat’ foods.
A mixture of industry and public health agencies supported the criteria (Coles, Paradise Foods, NHF Australia, MoH NZ) as it ensures consumers are not misled. NHF Australia cited their consumer research, which indicates that consumers understand the claim and prefer it to any other nutrition content claim.
A few other submitters supported aspects of the criteria. HWA and AFGC agreed with the proposed ‘low fat’ criteria but opposed the declaration of actual fat content in conjunction with the claim, on the basis that it is overly prescriptive because the mandatory NIP has such information and is inconsistent with other claims where there is no requirement to state the actual value in conjunction with the claim (the only similar requirement is for ‘no added sugar’, ‘no added salt’ and ‘unsweetened’ claims where reference must be made to the NIP, not the actual amount). HWA believed that if a reference is necessary then their preference was for an asterix to be used next to the claim. In contrast, Diabetes NZ specifically supported the declaration of actual fat content.
A large group of public health agencies, a health professional and a consumer organisation recommended that the claim should be prohibited (CHC, SA Dept Human Services, Diabetes Australia, DAA, Pritikin, Rosemary Stanton, ADHB, NHF NZ, NZDA, NZ Nutrition Foundation, NZ CI) on the basis that:
it has the potential to mislead consumers. It implies that some percentage of the food has no fat as the emphasis is on ‘free’ rather than ‘% fat’ (i.e. a product containing 2% is not ‘free’ of fat). Also, as it is not comparable to a reference food, it can be misinterpreted, especially in relation to energy content;
it does not provide any additional useful information to the ‘low fat’ claim;
a ‘fat free’ product would be able to make a ‘100% fat free’ claim;
it contributes nothing to nutrition or health;
there are many ‘x% fat free’ foods in the marketplace that have flouted the CoPoNC ‘low fat’ criteria. This has led to a great deal of confusion among consumers as ‘97% fat free’ does not sound very different to ‘94% fat free’;
it is consistent with ANZFA’s prohibition on all ‘free’ claims, ACCC and NZCC’s zero tolerance policy and with UK legislation.
CHC requested that if the claim is not prohibited then they preferred a ‘% fat’ claim. NZ CI supported ANZFA’s criteria in such a case, while Pritikin suggested that criteria should be included for energy content. A consumer, Geoff Wilson, argued that when 3% fat is calculated as a percentage of total energy the value far exceeds 3% and thus makes a mockery of the 3% fat claims. Consumers R. Kemp, Twigg Weight Watchers WA and Ronnie McKennery expressed similar frustrations with the claim.
In contrast to the above, a large group of industry submitters objected to the criteria proposed by ANZFA (Nestlé, Cerebos, CMA, Unilever, GWF, Arnott’s, Dairy Farmers, ASA, Mainland, Natural Products, NZGMA). Nestlé, Arnott’s, GWF, Dairy Farmers, ASA and Mainland Products argued that:
a limit to 3 g per 100 g would limit consumer choice when such claims provide factual and useful information when comparing a product against a high fat counterpart. GWF suggested 5 g per 100 g while Mainland Product, Tegel Foods and Natural Products recommended 10 g per 100 g in line with the NHF NZ ‘Pick the Tick’ programme;
under fair trading law it would not be misleading to have ‘% fat free’ claims for foods that are not low fat foods;
it is inconsistent to allow a food with no fat to make a ‘100% fat free’ claim but not a ‘fat free’ claim;
it is inconsistent to allow ‘% fat free’ claims but not ‘% saturated fat free’, ‘% sugar free’, ‘% salt free’ and ‘% calorie free’ claims. In such cases advertisers are forced to make misleading statements by using the ‘very low’ claim;
it would have a significant impact on industry such as NZ Mainland Products meat business who make claims down to ‘90% fat free’ (e.g. for salami);
one of ANZFA’s objectives is the provision of adequate information for consumers to make informed choices. ‘Reduced fat’ claims for meat and dairy products are more confusing than ‘% fat free’ because of significantly varying fat contents in meat products and because consumers are required to read the NIP to interpret ‘reduced fat’.
In addition to the submissions made by AFGC and HWA above, Cerebos, CMA, Nestlé, Unilever, Natural Products, NZGMA objected to the declaration of the actual total fat content in conjunction with the claim on the basis that it:
does not provide for minimum effective regulation as required by COAG;
is inconsistent with P246 Labelling Omnibus, which proposed Std 1.2.10 be amended to avoid unnecessary duplication of nutrition information and characterising declarations that might confuse consumers;
contradicts other government policy to reduce packaging and minimise waste for environmental purposes.
Mainland Products suggested that in addition to its recommended increased leniency to a maximum of ‘90% fat free’, additional conditions could be applied, such as the product also meeting the criteria for ‘reduced fat’ and the actual total fat content following the ‘% fat free’ claim on the label (expressed as a percentage of the food). Mainland Products also believed there should be some provision for process variability such as +1/-1%.
Finally, in relation to other related claims, GWF proposed that a ‘moderate fat’ claim be developed with no more than 5 g per 100 g and disqualifying criteria for trans and saturated fat levels of no more than 28% total fatty acids or 1.5 g per 100 g. GWF stated that this would support the Australian Dietary Guidelines and also enable ‘95% fat free’ claims to be made.
NZDA stated that there is strong evidence of an association between a diet high in saturated fat and risk of cardiovascular disease and that data suggests the New Zealand population is consuming too much saturated fat. NZDA therefore believed that the goal of nutrition labelling and claims should be to encourage consumers to choose foods high in unsaturated fatty acids compared to saturated fatty acids. Accordingly, they and NHF NZ recommended a claim such as ‘proportionally low in saturated fat’. GWF suggested that consideration be given to a ‘very low in saturated fat’ claim for consistency with fat claims.
Nestlé noted that trans fatty acids are not a form of saturated fatty acids as stated in the Draft Assessment Report although some act like them in the body. They also noted that the definitions of trans fatty acids and saturated fatty acids in Standard 1.2.8 infer that they both have the same steric configuration. Furthermore, Nestlé stated that ANZFA is defining fatty acids and associated claims by their physiological similarities (i.e. cholesterol raising effect) rather than by their chemical structure and it should therefore ensure that those fatty acids, including specific saturated fatty acids that do not produce similar physiological conditions are not included in combination with those trans and saturated fatty acids that do produce the physiological effect.
For instance trans fatty acids in milk do not raise LDL cholesterol. ADC & ADPF argued in a similar way, concluding that in light of the increasing evidence indicating that not all trans fatty acids are detrimental to health, the inclusion of generic trans fats has the potential to mislead and may create consumer confusion. They cited epidemiological studies that trans fatty acids form hydrogenated oils and not ruminant fat is associated with heart disease as well as literature that indicates trans fatty acids in dairy fats (conjugated linoleic acid and vaccenic acid) have potentially beneficial physiological properties in relation to several types of cancer, heart disease, bone formation and immune function.
Dairy Farmers, FTA Vic, NHF Australia, HWA and Unilever supported the proposed criteria for saturated fat claims (with the exception of Unilever’s opposition to ‘saturated fat free’). Unilever argued that they reflect the increasing evidence of the impact of both saturated and trans fatty acid intakes and closely link with the draft Dietary Guidelines for Australians. Nestlé, however, pointed out that the proposed conditions are not consistent with Codex and therefore do not allow for a harmonised approach.