Regulatory confusion around diet products could become a lot clearer


Posted By on 25/11/21 at 3:22 PM

On 19 November 2021, Food Standards Australia New Zealand put out a call for comment in relation to Nestle Australia’s application to change the Australia New Zealand Food Standards Code (the Food Standards Code) so as to expressly allow for Very Low Energy Diet products (VLED – also known as Very Low Calorie Diet or VLCD products).

Submissions close on 17 December 2021 and it is very important for anyone who supplies products in this space to read how the law is proposing to change. The FSANZ Call for Submissions can be found here.

KHQ Lawyers - Diet products

Why does the law need changing?

Because technically this whole category of product is illegal and cannot be made in Australia without a change to the law.

Wait… what?

Australia has a regulatory category of food called formulated meal replacements (as regulated in Standard 2.9.3 of the Food Standards Code). This category of product (and the associated category formulated supplementary foods) are permitted to be fortified with a wide range of vitamins and minerals but have minimum protein and energy requirements, namely no less than 850kJ per serve.

The issue is that there is significant market demand for products that are still designed to replace a meal (and therefore need the vitamins and minerals) but contain less energy (as they are supposed to be Very Low Energy). When these products drop below the 850kJ per serve limit, they can no longer be classified as formulated meal replacements and therefore there is no express permission to fortify them with vitamins and minerals… arguably rendering the vitamin and mineral fortification non-compliant.

But haven’t they been on the market for years?

Sure have.

There are a number of historical reasons for this, such as:

  • There is an actual standard in the Food Standards Code that allows for VLED products… but only for products made in or imported into New Zealand… but which can then subsequently be imported into Australia from New Zealand… but not directly to Australia from other countries or be made in Australia;
  • Personal imports of overseas food products do not have to comply with the Food Standards Code; and
  • A draft version of the Standard for Foods for Special Medical Purposes allowed for such products, but this was removed before the Standard became law.

Another reason could well be that food regulatory enforcement agencies in Australia have had better things to do than to try and crack down on technical non-compliances in products that are safe and that Australian consumers want.

But changing the law is a good thing, right?

Yes, having some regulatory certainty and an expressly permitted direct import pathway into Australia are definitely good things.

But it is worth looking at the fine print.

This is a private application by Nestle Australia and Nestle New Zealand. It is not a proposal by FSANZ. While there is nothing in the Application that appears to benefit Nestle over any other Australian supplier of VLED products, Nestle has made a regulatory choice in its Application. Application A1230 seeks to have a category for VLEDs created in the Food for Special Medical Purposes Standard (2.9.5), not in Standard 2.9.3 with formulated meal replacements.

There is no doubt a number of excellent reasons why Nestle seeks to amend the Food Standards Code in this way. However, foods for special medical purposes have significant restrictions on where they can be sold (e.g. in pharmacies but not in supermarkets) and must be taken under medical supervision. This is in stark contrast to formulated meal replacements, which can be sold in supermarkets and do not need to be used under medical supervision.

If this sounds like unnecessary or overly burdensome regulation, this Call for Submissions is your opportunity to say so.

If you would like any assistance in making a submission to FSANZ or in reviewing the compliance of your products, please do not hesitate to contact KHQ Lawyers by emailing food@khq.com.au.

KHQ Lawyers - Charles Fisher

Charles Fisher Principal Solicitor

Since completing his Bachelor of Laws and Legal Practice and Bachelor of Arts in 2006, Charles has spent the entirety of his legal career staring at the Food Standards Code (among many other pieces... Read More