In May 2001, the then Australia New Zealand Food Authority (ANZFA), now Food Standards Australia New Zealand (FSANZ) raised a proposal, Proposal P234, to review nutrition content and other related claims. The review was to consider the most appropriate regulatory mechanism for managing nutrition content and other related claims and to review the criteria that should apply to making such claims.
At the 31 July 2001 meeting of the former Australia New Zealand Food Standards Council (ANZFSC), Ministers decided to refer health and related claims to the Food Regulation Standing Committee (FRSC) for policy development and to include nutrition content claims in the scope of the policy framework. In response to that decision, FSANZ changed the scope of Proposal P234 with the objective to only review the criteria and conditions for nutrition content and related claims. Following the release of the Draft Assessment Report in March 2002 and public consultation, Ministers decided on a broad approach for nutrition, health and related claims in May 2002. FSANZ suspended work on Proposal P234 while awaiting the outcome of the policy development process as it was clear that the criteria for nutrition content and related claims needed to be considered alongside health and other related claims.
In December 2003, the Australia and New Zealand Food Regulation Ministerial Council (the Ministerial Council) agreed to a Policy Guideline for Nutrition, Health and Related Claims (the Policy Guideline), identifying a set of high order and specific principles which aim to ensure that the health and safety of the public is protected, whilst still allowing for food industry innovation and trade. These principles will be considered by FSANZ during the development of a Standard and guideline for nutrition, health and related claims. In May 2004, the Ministerial Council further discussed aspects of the Policy Guideline, particularly in relation to the regulation of biomarker maintenance claims. The Ministerial Council determined biomarker maintenance claims would be treated in the same way as biomarker enhancement claims and consequently would be considered a type of high-level claim.
The regulatory options proposed by ANZFA in the Draft Assessment Report for Proposal P234 were made prior to the development of the Policy Guideline. In view of the need to consider criteria for nutrition content and related claims in the context of other health and related claims as provided in the Policy Guideline, FSANZ considers that Proposal P234 should now be rejected. Relevant issues raised by P234 will be considered as part of Proposal P293 – Nutrition, Health and Related Claims.
The new proposal for nutrition, health and related claims allows FSANZ to undertake a two-stage consultation process, maximising stakeholder input on the new options and minimising stakeholder confusion. Relevant issues that were raised in Proposal P234 have been taken into consideration in the Initial Assessment Report for Proposal P293.
Currently most nutrition content claims are managed in Australia by the Code of Practice on Nutrient Claims in Food Labels and in Advertisements (CoPoNC). In New Zealand, similar claims were regulated under the New Zealand Food Regulations 1984 (NZFR) until December 2002 when they were repealed. In addition, there are provisions for some nutrition content claims in Standard 1.2.8 - Nutrition Information Requirements and Standard 1.3.2 -Vitamins and Minerals of the Code. Current provisions for nutrition content claims will be retained until the new Standard for the regulation of nutrition, health and related claims has been developed.
1.1 Nature of Proposal
On 24 November 2000, Ministers adopted the Australia New Zealand Food Standards Code. At that time a number of outstanding matters were identified for review during the two-year transition period. One of these was the review of the provisions for nutrition content and related claims and, as a result, Proposal P234 was raised.
The overarching aim of Proposal P234 at Draft Assessment was to determine the most appropriate criteria and conditions for making specific nutrition content claims whilst ensuring consistency between Australia and New Zealand. Important components of the review were to consider the national nutrition policies of both countries and to develop labelling information that is accurate, essential, unambiguous, meaningful and easy to use for consumers, does not impose unnecessary costs on manufacturers and is consistent with international and Codex criteria.
2. Regulatory Problem
2.1 Current Labelling Requirements
Regulation of nutrition content claims is currently determined in a number of ways. In Australia, the majority of nutrition content claims are managed through CoPoNC. Similar claims were regulated in New Zealand under the NZFR until these were repealed in December 2002. They are now therefore solely regulated under fair trading law. In addition, there are provisions for some nutrition content claims in Standard 1.2.8 – Nutrition Information Requirements and Standard 1.3.2 – Vitamins and Minerals of the Code.
In Australia, CoPoNC sets out the various terms and conditions for content claims about specific nutrients and ingredients such as ‘lite’, ‘high fibre’ and ‘no added sugar’. CoPoNC does not have legal force and does not apply to imported foods. CoPoNC is not recognised in New Zealand.
A review of nutrition content claims is necessary because of the need to develop a joint approach to manage these claims in Australia and New Zealand, in accordance with the Agreement Between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Standards (the Treaty). In addition a number of limitations have been highlighted in relation to the current approach to nutrition content claims including:
potential inconsistencies between current regulatory measures (CoPoNC) and fair trading laws; and
inconsistency in relation to imported foods.
These limitations are a potential source of confusion for consumers and could potentially result in an uneven playing field for industry. It is therefore necessary to examine the criteria and conditions for making specific nutrition content claims.