On 24 July, 2023, FSANZ published Call for submissions – Proposal P1049 asking for industry feedback on a proposal to amend the Australia New Zealand Food Standards Code (the Food Standards Code) to clarify exactly what nutrition content claims are – and allegedly are not – allowed on behalf of alcoholic beverages (Proposal P1049). This article explores whether current or proposed laws are fit for purpose, which in turn should impact whether industry makes submissions by the 4 September 2023 deadline.
What’s the current state of affairs?
Standard 1.2.7 of the Food Standards Code currently states that nutrition content (other than claims made about energy, carbohydrate, or gluten content) and health content claims cannot be made on alcoholic beverages containing more than 1.15% alcohol by volume.
Given that a “nutrition content claim” is defined quite broadly to include any claim about the presence or absence of any nutrient or biologically active substance (which in turn is defined as a substance other than nutrient with which health effects are associated), this prohibition ought to have pretty strictly limited the types of health-related marketing messages allowed in relation to alcoholic beverages. Which is the intent. In fact, the only reason claims regarding energy and carbohydrates were permitted was to encourage food companies to compete in reducing these particular nutrients.
But if the intent was to encourage alcoholic beverages to be healthier (without claiming to be healthy) for consumers, why were the permitted nutrition content claims limited to just energy, carbohydrates and gluten?
What has triggered FSANZ action here?
Regardless as to whether the current prohibition is fit for purpose, the result has been that the food industry has defined “carbohydrate” broadly. Given that sugar and sugars are in fact a subset of carbohydrates, there has been a proliferation of comparative sugar nutrition content claims on alcoholic products. This is likely because no food regulator would be willing to invest in arguing to a judge that (even though the Food Standards Code treats sugar and carbohydrates differently at numerous points) permission to make carbohydrate claims does not extend to permission to make sugar claims.
FSANZ is aware of the growing interest in consumers in health and wellness, including in relation to alcoholic intake. Over the last 20 years, alcoholic consumption in Australia and New Zealand has decreased, and is expected to continue to do so. The market has also seen a sizeable shift in the growing popularity of hard seltzers, owing to their marketability as lower energy (calorie) alternatives to the traditional beverages.
Proposal P1049 and the associated literature review note the poor consumer understanding of carbohydrate (and sugar) content in alcoholic drinks. Consumers tend to overestimate sugar content in alcoholic beverages. Consumer research highlighted the beneficial public health value in sugar claims being made on alcoholic beverages (in terms of consumer decision-making being governed by sugar reduction and more accurate information).
What is FSANZ proposing to change?
FSANZ published Proposal P1049 alongside a literature review of studies relating to consumer understandings of carbohydrates in alcoholic beverages. The current position of the Australian and New Zealand health and food authorities is to generally limit the intake of alcoholic beverages. FSANZ considers the proliferation of sugar-related claims on alcoholic beverages as antithetical to the prohibitions on health-related claims, and further clarity was needed.
In Proposal P1049, FSANZ has put forth the proposed amendment to the Food Standards Code. The new wording states that where a food contains more than 1.15% alcohol by volume, nutrition content or health claims cannot be made other than claims about:
- salt or sodium content of a food that is not a beverage;
- carbohydrate content;
- energy content;
- gluten content;
- sugar content; or
- sugars content.
The term sugar and sugars are defined in sections 1.1.2-3 and 1.1.2-2 of the Code respectively.
As you can see, the proposed amendment seeks to expressly expand the nutrition content claims permitted on behalf of alcoholic beverages and to give the industry confidence in making such claims. However, this expansion is strictly limited to the addition of sugar and sugars claims.
The effect of these proposals essentially affirms what was already becoming quite commonplace in market practice; claims such as “low sugar”, “lite/light”, or “sugar free” are allowed, subject to the condition you do not specify which sugars are/are not present.
So will certainty be achieved?
In relation to sugar claims on behalf of alcoholic beverages… yes. There will now be certainty and confidence.
And, if Proposal P1049 is implemented, there will be clarity on behalf of claims about all other subsets of carbohydrate as well. Just as was the case with sugars, claims on behalf of dietary fibre were also beginning to appear on the alcoholic beverages market. Now, dietary fibres are technically a carbohydrate, even though they are metabolised differently. In fact, when calculating carbohydrate content for nutrition information panel purposes, Standard 1.2.8 and Schedule 11 tells us to expressly exclude dietary fibre from carbohydrate content.
Notwithstanding the above, the previous permission to make claims on behalf of carbohydrate could be interpreted as permission to make claims on behalf of dietary fibre, just as was the case for sugar claims.
However, in Proposal P1049, FSANZ also wants to add the following:
A nutrition content claim about carbohydrate content of a food that contains more than 1.15% alcohol by volume must not name or refer to a component of carbohydrate other than sugar or sugars.
This amendment would strictly limit carbohydrate claims to just carbohydrates, sugar and sugars. No dietary fibre, inulin or prebiotic claims would be permitted if this amendment goes through.
But is this fit for purpose?
While the amendment will provide the industry with clarity, the underlying principles behind it must be questioned.
FSANZ itself acknowledges that alcohol consumption is dropping. The previous sugar claims were not expressly permitted by the Code but were a market-led response by the alcohol industry to provide “healthier” alcoholic beverages. Given that proliferation of sugar claims has now been endorsed by FSANZ, why limit nutrition content claims on behalf of alcoholic beverages at all? Why limit the market incentives to offer consumers “healthier” alcoholic beverages when such marketing messages have already been shown to not increase alcohol consumption (at least on a nationwide basis)?
If anyone in the food industry believes the proposed amendments to the Food Standards Code are not fit for purpose, then they ought to make a submission on Proposal P1049 before 4 September 2023. If you need further clarification on your position following this release from FSANZ, and how to respond as a stakeholder, please reach out to our Food & Beverage team at KHQ Lawyers.
This article was written by Jack Fitzgerald (Paralegal) and Charles Fisher (Principal Solicitor).
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