In a world changing move for those who are involved in the manufacture, labelling and advertising of foods and beverages, the regulation of nutritional content claims and health claims shifted to a new level on 18 January 2013, with the long awaited introduction by Food Standards Australia New Zealand (FSANZ) of a variation to the Food Standards Code (Variation). The Variation paves the way for the implementation of the new Food Standard 1.2.7 (Standard 1.2.7).
What does the Variation do?
Prior to the introduction of the Variation, a transitional standard, Standard 1.1A.2, was the sole standard governing the regulation of nutritional content claims and health claims. This standard is to be replaced by Standard 1.2.7, which comes into effect on 18 January 2016. The Variation provides that suppliers have a 3 year transitional period, commencing on 18 January 2013, in which to comply with the new Standard 1.2.7. During the transitional period, suppliers may comply with either the pre-existing transitional health claims standard 1.1A.2, or comply with Standard 1.2.7, but not both. However, all suppliers must comply with the new Standard 1.2.7 by 18 January 2016. There is no" stock-in-trade" period at the end of the 3 year period.
The Variation also amends a number of existing standards under the Code, including Standard 1.2.8, which concerns nutrition information requirements and nutrition information panels, and amends the definition of "claim" to provide that a claim can mean an express or implied statement, representation, design or information in relation to a food or property of food.
How does the new Standard 1.2.7 change the current regulation of health and nutrition claims on food and beverages?
The new Standard drastically changes the current food labelling and advertising regulatory system. Previously, under the transitional Standard 1.1A.2, there were general prohibitions in place on labelling or advertising foods using the word "health", or specifying weight-loss properties, or making therapeutic or prophylactic action claims, or medical advice claims. Suppliers could apply to FSANZ to have health claims approved on labelling or in advertising.
The changes under the new Standard include:
- A broad definition of health claim. A health claim means an express or implied claim which states, suggests or implies that a food or a property of food has, or may have, an effect on the human body. This can include an effect on physical performance, mental performance, biochemical or physiological processes or outcomes, growth and development.
- Standards and requirements which must be met when making nutrition content claims. Claims such as "low in fat", "diet", "no added sugar" must meet specific criteria listed in the Standard before they can be made.
- Standards and requirements which must be met when making health claims. Health claims may be general level health claims (e.g. calcium is good for bones and teeth) or high level health claims, which are health claims that refer to a serious disease or a biomarker of a serious disease (e.g. diets high in calcium may reduce the risk of osteoporosis in people aged 65 years and over). There are over 200 pre-approved food-health relationships in the new Standard which suppliers must comply with, and if they are not in the Standard, suppliers are required to self-substantiate and hold records in relation to the claims. Suppliers must only make high level health claims which are set out in the Standard. There are currently 13 preapproved food-health relationships for high level health claims in the new Standard.
- Introducing a nutrient profiling scoring criterion (NPSC). All foods and beverages with health claims must meet the NPSC score specified in the Standard. For example, health claims will not be permitted on foods with scores exceeding the permitted NPSC score, which can mean foods high in saturated fat, sugar or salt. "Bonus points" are provided for fruit and vegetable, protein and fibre content.
- Independent endorser bodies and endorsement requirements for food and health claims. Suppliers may only make endorsing statements on their food products if they are made with the permission of an endorsing body. An endorsing body, meaning a not-for-profit entity which has a nutrition or health-related purpose or function, must be independent and free from influence by the supplier of the food. This will mean, for example, that suppliers must not pay or provide donations to such a body, or have any other financial interest in the endorsing body. All endorsement documentation must be kept for up to 2 years after a product is last sold, advertised or available for sale.
What should suppliers do?
Suppliers should start preparing now for the introduction of the new Standard. However, suppliers should note that, regardless of whenever suppliers choose to comply with the new Standard in the transitional period, once that election is made all products must comply with the Standard, and not just new products.
The new Standard can be found in Attachment A of the Review Report into Proposal P293 dated 8 November 2012 - http://www.foodstandards.gov.au/foodstandards/proposals/proposalp293nutritionhealthandrelatedclai ms/p293reviewreport.cfm.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.