Health Claims Review Paper March 09

A submission to the

Council of Australian Governments and the Australia and New Zealand Food Regulation Ministerial Council

In response to: Issues Consultation Paper: Food Labelling Law and Policy Review

National Foods Ltd May 2010

National Foods Limited National Foods Centre, (Personal contact details deleted) Research & Development 737 Bourke St ABN 65 004 486 631 Docklands Victoria www.natfoods.com.au Australia 3008

1 Preface

Lion Nathan National Foods brings together two great companies – Lion Nathan, a leader in the production, distribution and marketing of alcoholic beverages in Australia and New Zealand, and National Foods, one of Australasia’s largest food and beverage groups. The company was formed in October 2009, when Kirin Holdings Company Limited completed its purchase of Lion Nathan and merged the business with National Foods – which it has owned since 2007.

Today, Lion Nathan National Foods employs more than 8,000 people across Australia and New Zealand and boasts a portfolio of market-leading, household-name brands in beer, wine, spirits, milk, fresh dairy foods, juice, cheese and soy beverages. These include Yoplait, Dairy Farmers, Tooheys, PURA, James Boag, COON, Hahn, Wither Hills, King Island Dairy, Berri, Speight's and Vitasoy, to name a few.

In addition to direct employment, we make a significant contribution to the Australian and New Zealand economies. We are one of the region’s largest purchasers of agricultural goods and an integral component of the retail, hospitality and tourism industries.

We are committed to doing the right thing for the long term by investing in our core strategic assets – our people, our brands, and our production facilities – and in the sustainability of our business. In line with our core purpose – bringing more sociability and wellbeing to our world – we believe it is our responsibility to play a positive role in the community and lead by example in the management of our social and environmental footprint.

While our head office is in Sydney Australia, our footprint stretches far and wide. National Foods has operations in every Australian state as well as New Zealand, Singapore, Malaysia and Indonesia, while Lion Nathan spans Australia and New Zealand with eight major breweries, one craft brewery, two distilleries, seven wineries and 46 liquor outlets (NZ only).

National Foods has suppliers in every major dairy region in Australia and also operates in the soy beverage market through a joint venture with Vitasoy International Holdings of Hong Kong. A production plant in Wodonga, Victoria supplies ESL and UHT soy drinks to the Australian and New Zealand markets.

National Foods is committed to investing in local communities and actively supports a range of sponsorships for sporting groups, sports role models and community services in Australia and New Zealand.

Since 2001, National Foods under its Pura Milk brand in Australia has been the major sponsor of the children’s mentoring organisation, Big Brothers Big Sisters of Australia.

National Food’s head office is located at 737 Bourke Street, Melbourne, Victoria, Australia.

2 Introduction

National Foods is pleased to provide comment to the Council of Australian Governments (COAG) and the Australia and New Zealand Food Regulation Ministerial Council (MC), regarding the Issues Consultation Paper: Food Labelling Law and Policy Review.

We have consulted with the Australian Food and Grocery Council, and Dairy Australia, and our views align where possible.

The submission is written on behalf of National Foods, acknowledging we are a business unit of Lion Nathan National Foods.

We consent to the author’s name and organisation being included in the summary report, as well as our submission appearing on the website.

National Foods – Discussion Points

Overarching comments

. Support for an overarching Food Labelling Policy

National Foods is supportive of an overarching Food Labelling Policy. There are a number of labelling items unresolved and this Consultation Paper endeavours to provide clarity, direction and alignment. Such items include nutrition and health claims, front of pack labelling (FOPL), minimal labelling requirements, the role of the food label in consumer education and inturn the responsibility of the food industry and government in consumer education and health promotion.

We acknowledge this is an Issues Consultation Paper, and will be used to develop the Policy document. National Foods submission therefore raises a number of key items of concern when addressing the relevant questions in the Consultation Paper.

. Best practice and evidence based information to guide development of the Policy

National Foods emphasises the need for evidence based or fact based information to guide all aspects of regulatory decisions and recommendations.

International evidence can provide the foundation of labelling issues to be considered but must be validated within the Australian context. Front of pack labelling would be an example.

We also caution against the use of inappropriate information for key decisions. For example, use of the National Heart Foundation tick as evidence to support FOPL is both misleading and inaccurate, as this is a paid endorsement, with large consumer awareness and understanding1.

3 . Regulatory enforcement aligned to risk of public health and safety, and evidence of market failure

National Foods is supportive of a well managed, comprehensive regulatory framework that promotes consumer confidence and trust, maximises consumer understanding and provides fairness and opportunity for the food industry.

Regulation should only be imposed where there is a risk to public health and safety or to correct market failure.

This aligns with the Council of Australian Governments (COAG) principle for minimum necessary regulation that recommends regulation should be commensurate with the level of risk.

. Support for self-regulatory industry codes

National Foods supports the continued use of self-regulatory industry codes. There is good evidence of voluntary industry codes working successfully. For example, the food industry’s Code of Practice for Nutrient Claims in Food Labels and in Advertisements.

Mandatory regulation should only be imposed where self-regulation has proven to fail.

This aligns with the National Preventative Health Taskforce report (June 2009), for a ‘responsive regulation’ system that begins with voluntary regulation and moves to mandatory regulation only as needed/ demonstrated through good evidence2. From the Report, ‘responsive regulation’ is recommended as an ideal approach for managing such areas as food labelling.

. Defined role of a food label in public health and safety, and in health promotion

The intent of public health education and promotion is to reduce chronic disease and promote good health and wellbeing. For successful outcomes, a comprehensive, multi-level, multi- sector approach is needed. Food labels are but one medium of many.

Labels can, and do, carry information to protect consumers where there is a risk to public health and safety or to correct market failure. We do not believe the evidence supports mandating the use of food labels for the purposes of health education and promotion.

However, we support the use of current voluntary labelling codes and schemes that promote broader public health objectives. Greater reliance should also be placed on other mediums of consumer education – i.e. point of sale, website – as well as greater government ownership in consumer education on food labels.

. Minimum labelling requirement to ensure public health and safety (i.e. allergen labelling, date marking)

To maximise compliance and consumer understanding, the mandatory information on a product pack should be simple and consistent, and limited to that which can directly impact a consumer’s safety.

4 Food labels should allow for product comparison at the point of purchase.

Information that further informs consumers about product characteristics – i.e. halal, kosher and natural – can be provided through other mediums such as point of sale (POS) materials, website, and company information hot-lines.

Any imposed labelling changes to current requirements need to demonstrate effectiveness, based on robust consumer-based evidence. Cost implications need to be considered not just for label changes, but for validation and compliance throughout the supply chain from the farmer, manufacturer/ supplier, to the distributor and retailer.

. Oppose mandatory Front of Pack Labelling

National Foods is opposed to mandatory FOPL without evidence of demonstrated effectiveness.

There is no solid research National Foods is aware of that clearly demonstrates any particular FOPL format is more effective than another in assisting consumers construct balanced diets or secure better health outcomes through food choices.

As mentioned in Attachment 3 to the 2007/2008 FRSC Front of Pack Labelling Working Group (page 11), “Many factors influence purchasing behaviours including price, taste, nutrition credentials and promotions. Therefore, the impact of FOPL is hard to gauge”3.

. Support evidence based health claims

National Foods is supportive of allowing evidence based health claims to be permitted on pack to further facilitate the provision of product information, and consumer understanding and education. This includes nutrition content claims (e.g. contains calcium), general level health claims (e.g. calcium is important for bone health), and high level health claims that describe a disease state (e.g. calcium and osteoporosis).

Manufacturers should be able to speak truthfully about their product benefits, aligned to the relevant level of supporting evidence.

. Support a Centralised Advisory Service for FSC interpretation

National Foods advocates a centralised advisory service for FSC interpretation to encourage consistency of advice provided to the food industry, consumer and health care professionals.

Who should fulfil this role needs to be determined, but they should have adequate authority to ensure the advice provided would be legally binding.

The successful development of a centralised advisory service requires all key stakeholders, including Food Standards Australia New Zealand (FSANZ), all state and territory jurisdictions and the food industry.

. Support a Centralised and Single Enforcement Agency for regulation

National Foods supports the development of a centralised and single enforcement agency.

5 We believe optimal compliance with food labelling laws and policies rely on consistent, effective approaches to the interpretation and enforcement of food regulation and legislation.

There is currently inconsistency across jurisdictions, both in relation to interpretation of the law and degree of enforcement. Without clear and accurate interpretation it is impossible for food manufacturers to ensure compliance with legislation and expect consumers to understand food labelling.

Responses to questions in the Issues Consultation Paper: Food Labelling Law and Policy Review

1. To what extent should the food regulatory system be used to meet broader public health objectives?

It is important to remember the primary purpose of the food regulation system. Food regulation is about food safety and enabling consumers to make an informed product choice at the point of purchase.

The vision of Food Standards Australia New Zealand (FSANZ) is to “provide a safe food supply which supports the health of people in Australia and New Zealand”4.

Whilst COAG has agreed to ‘tackle the burden of chronic disease’, as part of the prevention stream of work in the health policy arena, the relevance to the food regulation system remains in question.

The intent of public health education and promotion is to reduce chronic disease and promote good health and wellbeing. For successful outcomes, a comprehensive, multi-level, multi-sector approach is needed. Food labels provide one possible medium of many.

The Issues Consultation Paper defines public health as encompassing two elements: health safety and health promotion (page 3). We challenge the rationale for addressing both aspects of public health through a food label.

Labels can, and do, carry information to protect consumers where there is a risk to public health and safety or to correct market failure. We do not believe the evidence supports mandating the use of food labels for the purposes of health education and promotion.

However, we support the use of current voluntary labelling codes and schemes that promote broader public health objectives. Greater reliance should also be placed on other mediums of consumer education – i.e. point of sale, website – as well as greater government ownership in consumer education on food labels.

1 2. What is adequate information and to what extent does such information need to be physically present on the label or be provided through other means (e.g/ education or website)?

6 To maximise compliance and consumer understanding, product packaging information should be simple and consistent, and limited to that which can directly impact consumer safety.

This is consistent with the COAG principle for minimum necessary regulation and recommends that regulation should be commensurate with the level of consumer risk.

We believe the minimum requirements are: – Allergen statements – Mandatory warning and advisory statements – Use by/ best before dates – Directions for use/ storage – Supplier contact details – Product name – Lot identification details – Net weight – Country of origin – Ingredients list – Nutrition information panel.

National Foods believes that in addition to a product label, the materials in close proximity (i.e. point of sale material) can serve to inform a consumer, and consequently minimise the requirements for on pack product information. This should be considered when defining ‘labelling’ criteria.

Exemptions also need to be considered for products with practical limitations (i.e. small pack sizes).

Information that further informs consumers about the product characteristics – i.e. halal, kosher and natural – can be provided through other mediums such as point of sale (POS) materials, website, and company information hot-lines.

Any imposed labelling changes to current requirements need to demonstrate effectiveness, based on robust consumer-based evidence. Cost implications need to be considered not just for label changes, but for validation and compliance throughout the supply chain from the farmer, manufacturer/ supplier, to the distributor and retailer. It is also more cost- effective to maintain and update POS material as opposed to product packaging.

3. How can accurate and consistent labelling be ensured?

National Foods recommends that having clear, consistent criteria in either a voluntary industry code of practice or legislated standard can assist in maximising awareness, accuracy, consistency and product compliance. The regulations should be user-friendly, written in a common language, and be non-interpretive.

This should be supported by a centralised advisory service and a centralised monitoring and enforcement agency.

7 The labelling criteria needs to be regularly reviewed to ensure it reflects current industry practices, procedures (i.e. technical) and product opportunities (i.e. ingredients) – which would need to be actively supported by food industry.

Ongoing education to the food industry, health care professionals and consumers by the government, is imperative to provide further rigor to the regulatory system.

4. What principles should guide decisions about government intervention on food labelling?

National Foods recommends the following principles be used to guide food labelling: – Protection of health safety – Regulation commensurate with level of consumer risk – Evidence-based or fact-based information to guide labelling decisions – Labelling criteria relevant to current industry practices and capability – Consistency with international regulation.

5. What criteria should determine the appropriate tools for intervention?

National Foods suggests there is not one tool for intervention but many, and recommends that intervention be aligned with the level of risk to safety.

Labelling items with a high impact on safety require mandatory intervention and therefore a prescribed standard. Those with a lower impact on safety would be best managed by a self- regulated voluntary code with clear objectives, criteria and explanations.

For example, ‘allergens’ pose a higher risk to health safety versus a nutrition content claim such as ‘low fat’ health claim, which is associated with a low risk.

6. Is this a satisfactory spectrum for labelling requirements?

Yes, as the current level of intervention is aligned with the perceived risk to health safety, National Foods believes the spectrum for management of labelling requirements is sufficient.

7. In what ways could these misunderstandings and disagreements be overcome?

As stated above, National Foods recommends that misunderstandings or discrepancies in interpretation of labelling requirements be minimised if criteria and terminology is consistent, comprehensive and aligned with all aspects of the food regulatory system where appropriate. Allergen labelling is one example.

The labelling criteria and terminology needs to be regularly reviewed to ensure it reflects current industry practices, procedures (i.e. technical) and product opportunities (i.e. ingredients) – which would need to be actively supported by the food industry.

8 Education provided to the food industry, health care professionals and consumers by government, will endeavour to provide further rigor into the food regulatory system, and encourage consistency.

A centralised advisory and enforcement agency may also help to reduce misunderstandings and disagreements, as further discussed in questions 29-31.

8. In what ways can food labelling be used to support health promotion initiatives?

Health promotion has been defined in the Issues Consultation Paper “as activities designed to inhibit chronic disease by the promotion of healthy eating” (page 3).

As stated above, National Foods believes that mandatory food labelling must meet the requirements necessary to adequately inform the consumer to ensure food safety. This is, and should remain, the primary function of a product label. Any decisions to mandate changes to label requirements should be on the basis of impact to health safety and not on meeting particular public health objectives – which should be left to voluntary initiatives.

For successful health promotion outcomes, a comprehensive, multi-level, multi-sector approach is needed.

Packaging messages supporting health promotion should be optional to include on a product label, at a manufacturer’s discretion. As quoted from Williams P (2005), “folate health claims on food alone cannot adequately address the need for consumer education; they are better thought of as a means of easily identifying foods rich in folate once the target group is informed of their existence and the reasons for consuming them”5.

Current regulatory restrictions limit manufacturers from freely communicating many product health benefits. For example, current prohibitions do not permit claims in relation to any disease state (i.e. osteoporosis; heart disease) or physiological condition (i.e. cold; constipation). The food industry should be permitted to communicate product attributes aligned to the level of scientific evidence. The area of nutrition and health claims is further addressed in question 10.

9. In what ways can disclosure of ingredients be improved?

National Foods recognises that ingredient labelling can be confusing to the consumer. Current options permit certain ingredients to be listed via a common versus scientific name or a food additive number. Consumers may be unaware ingredients are listed in descending order of ingoing weight.

Suggestion could be to reduce the number of options an ingredient can be declared on pack, or to adopt a similar approach to ‘compound ingredients’, whereby ingredients are declared only if they appear as more than 5% in the final product or are considered ‘characterising’.

We believe, however, the underlying issue to understanding ingredients is consumer education. The government must commit time and resource to this.

9 10. To what extent should health claims that can be objectively supported by evidence be permitted?

National Foods is supportive of allowing evidence based health claims to be permitted on pack to further facilitate product information and consumer understanding and education – be these nutrition content claims (NCC), general level health claims (GLHC) that describe a nutrient and its health benefit, or a high level health claim (HLHC) that describes a disease state.

Manufacturers should be able to speak truthfully about their product benefits, aligned to the level of supporting evidence, on a voluntary basis.

The proposed Nutrition, Health and Related Claims Standard recommends GLHC be substantiated at a ‘convincing level of evidence’ – changed from earlier recommendations for a ‘probable’ level of evidence. Nutrition and health claims should be substantiated by the ‘weight of scientific evidence’ or ‘consistently agreed evidence’ (terms adopted to replace ‘probable levels of evidence’ – as per the Final Assessment Report for Nutrition, Health and Related Claims).

National Foods provided comment to FSANZ in response to Proposal P293 Nutrition, Health & Related Claims Consultation Paper for First Review, Proposal P234 Issues Paper in 2002, the Initial and Draft Assessment Reports for Proposal P293 in 2004/ 2006, and the Consultation Paper in 2008. Refer to Appendix 1 for details on National Foods position on nutrition and health claims, and specific issues.

1 11. What are the practical implications and consequences of aligning the regulations relating to health claims on foods and complementary medicine products?

National Foods notes there are differences in current permissions for food and health claims in the Food Standards Code versus complementary medicines and the Therapeutics Good Act (TGA) 1989.

A range of health claims – including reference to ‘serious disease’ – are permitted under the TGA that are not currently allowed under the Food Standards Code – despite both foods and complementary medicines being available in similar retail outlets.

To ensure prohibitions on labelling and promotion of foods are not made any more restrictive, and to promote a more even playing field amongst foods and complementary medicines, National Foods recommends the types of claims permitted on food be expanded and substantiated accordingly to the ‘weight of scientific evidence’.

The TGA uses risk-based pre-market assessment procedures for ingredients/ claims on complementary medicines. Efficacy for high risk ingredients/health claims only is determined by examining data from controlled clinical trials. However, where adequate information is available on each active ingredient, and it is well described in standard textbooks/guidelines, this can be used to support efficacy.

10 The advertising of therapeutic goods in Australia is also subject to the advertising requirements of the Act.

Alternatively, for food, the Food Standards Code and the Code of Practice for Nutrient Claims in Food Labels and in Advertisements (1995) outline current permissions for nutrition content claims and health claims. Only one high level health claim is currently is permitted in Australia (i.e. folate and neural tube defects). These regulations apply to claims both on packaging and in advertising.

Nutrition and health claims on food are also regulated by the Trade Practices Act (TPA) – enforced by the Australian Competition and Consumer Commission (ACCC).

The draft Nutrition, Health and Related Claims Standard has proposed three categories of claims based on the level of risk, with the level of substantiating evidence increasing accordingly. It is proposed, GLHC require a ‘convincing’ level of evidence and HLHC are pre-approved, with only nine suggested to date.

12. Should specific health warnings (e.g., high level of sodium or saturated fat per serve) and related health consequences be required?

National Foods is opposed to the inclusion of specific health warnings on product packaging without evidence of benefit to public health and safety or evidence of market failure.

Healthy eating patterns should be based around the inclusion of a balanced range of foods and beverages, as opposed to a focus on less desirable or ‘negative’ nutrients. Suggestions to include warning statements could over-ride the positive nutritional contribution of a product – the population are already facing difficulty in meeting certain nutrient requirements, such as calcium.

The nutrition information panel is a mandatory requirement on product packaging once a nutrition or health claim is made. This allows consumers to understand the nutrition profile of a product, and compare two or more products.

With appropriate consumer tools and consumer education, consumers can learn how to translate product information into practical eating recommendations. This should be the primary focus of government, not implemented through restrictions that impose warning statements on product without evidence of consumer benefit.

13. To what extent should the labelling requirements of the Food Standards Code address additional consumer-related concerns, with no immediate public health and safety impact?

The Issues Consultation Paper: Food labelling Law and Policy Review lists ‘additional consumer-related concerns’ as those items that extend beyond public health and includes examples such as environmental sustainability, animal welfare (i.e. free range), and methods of production – genetic modification, irradiation, nano-technology.

Food labelling must meet the requirements necessary to adequately inform the consumer to ensure health safety. Such items were listed in the response to question 2.

11 The benefit of listing ‘additional consumer-related concerns’ on product packaging, is unsubstantiated. Any imposed labelling changes to current requirements need to demonstrate effectiveness, based on robust consumer evidence.

National Foods recommends information relating to ‘other’ product characteristics, or what is being referred to as ‘additional consumer-related concerns’, should be a voluntary inclusion on a product pack, or provided through other mediums such as point of sale (POS) materials, website, and company information hot-lines.

1 14. What criteria should be used to determine the inclusion of specific types of information?

Any imposed labelling changes to current requirements need to demonstrate effectiveness, based on robust consumer evidence.

National Foods proposes that inclusions of specific items on a product be aligned to immediate food safety concerns (i.e. allergens), product identification (i.e. manufacturer details, lot number) and nutrition information (i.e. nutrition information panel and ingredients list).

Information beyond this, or what is classified as ‘additional consumer-related concerns’, should remain optional.

Mandatory inclusion of additional consumer-related concerns could lead to a clutter of information resulting in health-safety messages becoming ‘lost’. Another consideration is the resultant increase in packaging size to accommodate label information would be costly and environmentally detrimental.

15. What criteria should determine which, if any, foods are required to have country of origin labelling?

The current regulations for country of origin label are sufficient, and no changes are required.

16. How can confusion over this terminology in relation to food be resolved?

No comment

17. Is there a need to establish agreed definitions of terms such as natural, lite, organic, free range, virgin (as regards olive oil), kosher or halal? If so, should these definitions be included or referenced in the Food Standards Code?

As outlined in the Issues Consultation Paper terms such as natural, organic, free-range, kosher or halal would be considered as ‘additional consumer-related concerns’.

The definition for some of these terms already exists, for example, ‘free-range’ and ‘Lite/ Light’. Other terms, whilst defined, require greater clarity to minimise confusion and application, for example, ‘natural’ and ‘pure’.

The responsibility for development or revisions of such definitions should involve expert committees or organisations, and not FSANZ alone.

12 Definitions for ‘additional consumer-related concerns’ do not need to be included in the Food Standards Code but included in the respective industry codes – such as the Code of Practice for Nutrient Claims in Food Labels6 or the Food and beverage industry Food descriptors guidelines to the Trade Practices Act (TPA)7 [or combined into a new industry guideline].

Note, such terms are also governed by the TPA/ ACCC to ensure they are not misleading.

Consumer education needs to accompany product labelling – a government led initiative.

18. What criteria should be used to determine the legitimacy of such information claims for the food label?

No comment

19. In what ways can information disclosure about the use of these technological developments (i.e. genetic modification, irradiation, nano-technology) in food production be improved given the available state of scientific knowledge, manufacturing processes involved and detection levels?

As such technologies are validated through health safety risk assessment, information is fact-based. Disclosure of information should be aligned to the level of safety risk.

20. Should alcohol products be regulated as a food? If so, should alcohol products have the same labelling requirements as other foods (i.e., nutrition panels and list of ingredients)? If not, how should alcohol products be regulated?

Please refer to the Lion Nathan submission for a detailed response.

21. Should minimum font sizes be specified for all wording?

22. Are there ways of objectively testing legibility and readability? To what extent should objective testing be required?

23. How best can the information on food labels be arranged to balance the presentation of a range of information while minimising information overload?

24. In what ways can consumers be best informed to maximise their understanding of the terms and figures used on food labels?

National Foods collectively answers questions 21-24.

We restate the COAG principle for minimum necessary regulation and recommend that regulation should be commensurate with the level of consumer risk.

Without evidence of impact on health safety or evidence of market failure, National Foods does not advocate any proposed changes to font size, colour contrast, readability (font style, quality, line spacing) than currently outlined in the Food Standards Code.

A food label serves to provide adequate product information to the consumer to ensure health safety. Only minimum requirements should be mandated only. Both the product label, as well as materials in close proximity can serve to inform and educate the consumer.

13 The Food Standards Code moved away from prescribing font size. Minimum font size is only prescribed for mandatory warning statements. The Food Standards Code instead discusses legibility, contrast and product labelling to appear in English.

The focus should be on consumer education. Various consumer information and education tools can be effective in maximising consumer awareness and understanding, and allowing consumers to translate product choice into healthy eating patterns. Government needs to be at the forefront of consumer education, supported by the food industry.

25. What is an appropriate role for government in relation to use of pictorial icons on food labels?

National Foods believes the use of pictorial icons is adequately managed, and no further intervention is required.

National Foods acknowledges that the use of pictorial icons is currently captured within the definition of a ‘claim’ as defined by Standard 1.1.1 of the Food Standards Code. It reads: a claim means any statement, representation, information, design, words or reference in relation to a food which is mandatory in this Code. Thereby, from a health claim perspective the pictorial icon must be true and correct.

The TPA, enforced by the ACCC, works to ensure that consumer are not misled by communication materials – a second avenue to make sure that icons convey accurate information to the consumer.

Thirdly, registered icons operate within the parameters of the holding organisation, be it the National Heart Foundation tick or the Glycemic Index symbol.

Finally, voluntary icons – such as Percentage Daily Intake labelling – still have guiding principles in which to operate.

26. What objectives should inform decisions relevant to the format of front-of-pack labelling (FOPL)?

National Foods advocates that any change to FOPL needs to demonstrate consumer effectiveness. Evidence must be in the Australian context. Care should be taken not to oversimplify labelling as this can be misleading and misunderstood by the average consumer.

As stated in Attachment 3 to the 2007/2008 FRSC Front of Pack Labelling Working Group (page 11), “Many factors influence purchasing behaviours including price, taste, nutrition credentials and promotions. Therefore, the impact of FOPL is hard to gauge”.

National Foods supports the provision of adequate product information, to enable consumers to make informed choices at the point of purchase. The primary purpose of a food label is to ensure health safety.

We therefore oppose any consideration for mandatory FOPL.

14 National Foods is unaware of any research in Australia that clearly demonstrates that FOPL, or any particular FOPL format (i.e. non-interpretive or interpretive) is more effective than another in assisting consumers construct balanced diets or secure better health outcomes. This includes research undertaken both in Australia and overseas.

Front of Pack Labelling often adopts a generalised approach, trying to suit all genders and age groups. For instance, the ‘traffic light’ system is an interpretative approach to FOPL that can be misunderstood by consumers. Interpretation and subsequent consumer action can often vary, and may potentially deviate from the original intent.

Research conducted on the UK traffic light system indicated that the introduction of a system of four traffic light labels had no discernable effect on the relative healthiness of consumer purchases, with the recommendation of further research before this labelling format can be considered a ‘promising public health intervention’ 8.

Some front of pack labelling research compares ‘four’ traffic lights versus ‘seven’ or ‘eight’ thumbnails9,10. The comparison is not equal and therefore conclusions must be interpreted with care. In addition, when rating the ‘healthiness’ of a product, the methodology needs to include a control and keep the number of variables to a minimum. Without this, it is more difficult to draw meaningful conclusions.

Likewise, care should be taken with consideration of the impact of ‘existing’ front of pack symbols. For example, use of the National Heart Foundation tick as evidence to support FOPL is both misleading and inaccurate. The tick symbol has been in the marketplace since 1989, with over 1100 foods across more than 50 supermarket categories currently carrying the heart tick11. The National Heart Foundation tick is a paid endorsement, with large consumer awareness and understanding12. It merely serves as a point of ‘differentiation’ for manufacturers. Front of pack labelling research undertaking by the Heart Foundation states:

“the best labelling scheme for Australians is not one they prefer, but one that drives them consistently to make healthier choices”Error: Reference source not found.

It found similar effectiveness in all FOPL – where no one scheme worked well for all types of foods. ‘Consumer preference for a scheme’ does not necessarily mean that a consumer makes an accurate healthier choice’.

Internationally, FOPL remains in its development stages. A number of labelling initiatives have been employed to date, often resulting in consumer confusion. Research has considered the effectiveness of FOPL, consumer awareness and understanding using single versus multiple FOPL approaches.

For example, Pan-European consumer research from the European Food Information Council ‘In-store behaviour, Understanding and use of Nutrition Information on Food labels and Nutrition Knowledge’ found that Colour Coded Schemes (i.e. ‘at-a-glance’ labelling schemes’) were open to misinterpretation, with consumers tending to exaggerate the red light as messages to avoid eating the product, rather than “it’s fine to have this product occasionally as a treat”. Likewise, ‘amber’ could be interpreted as ‘should try not to eat this product’, rather than ‘this is okay most of the time’. The research also found that ‘calories’ was the information most frequently sought by shoppers13.

15 This demonstrates that ‘traffic lights’ may fail to help consumers consider foods in the context of a healthy diet, and may pose a health risk through misinterpretation. Focusing on negative nutrients such as saturated fat and sodium, without acknowledging the positive nutrients can skew a product choice. Simplifying to colour codes and nutrients does not provide context to consumers in how a food fits within the diet, nor assist with food selection and consumption.

Research from the UK Citizens’ forums on food: Front of Pack (FoP) Nutrition Labelling (2008) found that respondents had a broad awareness of front of pack (FoP) labelling schemes. This awareness varied widely in the extent that respondents had actually engaged with FoP nutritional information. As such, awareness did not always translate into full understanding or actual usage of FoP nutrition labels.

Usage varied due to a wide range of factors, including: whether the individual was doing their ‘weekly shop’ or buying food to eat on the go, time pressure, mood, and the type of products being purchased.

The traffic light colour scheme was popular as this was seen as a way to bypass the need to make any mathematical calculations. This demonstrates oversimplification of a labelling device, disempowering consumers to make informed product decisions.

In Australia, FOPL is a new initiative to Australia. The current system is voluntary, with Percentage Daily Intake (DIG scheme) being a food industry led initiative that was only introduced in 2006 and therefore is still in its infancy.

The success of the DIG scheme can be seen in the recent reviews that the Australian Food and Grocery Council (AFGC) have conducted. In Australia, more than 70 companies have adopted the DIG scheme with over 2000 products carrying the ‘thumbnail’ icons. In 2008, research undertaken by the AFGC illustrated that two in three Australian consumers surveyed (66%) say that they believe Percentage Daily Intake is easy to read and understand, and that more than one in three Australian consumers surveyed (35%) have used Percentage Daily Intake to make a purchasing decision.

National Foods proposes that any consideration for label changes, including FOPL: – Provide ‘factual’ information to consumers to enable them to understand the total nutrient profile of a product, as opposed to interpretive and potentially ‘judgemental’ information on select nutrients only – Have regard for whole foods and balanced diets, recognising nutrients at risk of deficiency as identified by National Nutrition Surveys, such as calcium – Require validation within the Australian context, including intended consumer interpretation and action, and has a clear benefit and impact on FOPL objectives – i.e. a labelling system that leads to consumers purchasing healthier food choices, and better health outcomes. – Adopts a consistent approach – Is voluntary (not mandatory)

16 – Applies to all food types whether packaged, fresh, retail or institutional/quick food service – Considers a range of population sub-groups, including children – Is supported by education initiatives driven by government – Considers the potential cost impact borne by government, industry, and ultimately the consumer.

27. What is the case for food label information to be provided on foods prepared and consumed in commercial (e.g., restaurants, take away shops) or institutional (schools, pre-schools, worksites) premises? If there is a case, what information would be considered essential?

Mandatory health safety information should be included on pack. Refer to the response for question 2.

28. To what degree should the Food Standards Code address food advertising?

National Foods believes that food advertising is adequately captured in the Food Standards Code and no further intervention is required.

As stated in the Issues Consultation Paper, ‘food advertising’ is currently captured within the ‘general prohibitions’ as outlined in Standard 1.1.1 of the Food Standards Code.

Likewise, a claim is defined in the same Standard as any statement, representation, information, design, words or reference in relation to a food which is mandatory in this Code.

The self-regulatory industry Code of Practice for Nutrient ClaimsError: Reference source not found also addresses advertisements for foods in section 12, page 7.

Finally, the TPA (enforced by the ACCC), prohibits information in food advertising that is incorrect or misleading to the consumer.

29. In what ways can consistency across Australia and New Zealand in the interpretation and administration of food labelling standards be improved?

30. In what ways can consistency, especially within Australia, in the enforcement of food labelling standards be improved?

31. What are the strengths and weaknesses of placing the responsibility for the interpretation, administration and enforcement of labelling standards in Australia with a national authority applying Commonwealth law and with compatible arrangements for New Zealand?

National Foods collectively answers questions 29-31.

National Foods supports the development of a centralised advisory service and centralised enforcement agency. Whether the two services operate through the same agency needs to be determined.

17 The rationale is consistency in the information provided, and consistency in advice and compliance.

Training of jurisdictional enforcement should be as a collective, and not state or territory- based.

Funding of the central advisory service should be at a federal level. A fee-for-service structure, as proposed in the ‘Regulatory Impact Statement on food regulatory reforms: Centralised Interpretive Advice on Food Standards’, may deter use as responses to (general) enquiries would be made publicly available.

Development of a centralised advisory service should involve all key stakeholders, including Food Standards Australia New Zealand (FSANZ), all state and territory jurisdictions and the food industry.

The key concern in developing a centralised advisory service is the level of legal enforcement in the information provided. A centralised advisory service would achieve little in the absence of either ‘enforcement powers’ or ‘the provision of binding advice’.

Currently FZANZ is wholly owned & controlled by the Commonwealth. In order to provide a truly centralised approach to the establishment, interpretation and enforcement of food standards, the States & Territories should be included as joint owners of FSANZ. Such ownership would facilitate the delegation of enforcement powers by States and Territories to FSANZ.

A possible model for such a structure is the National Blood Authority (NBA) which is owned jointly by the Commonwealth and States & Territories. The NBA has a truly national approach as well as appropriate cost sharing arrangements.

32. If such an approach was adopted, what are the strengths and weaknesses of such a national authority being an existing agency; or a specific food labelling agency; or a specific unit within an existing agency?

33. If such an approach was adopted, what are appropriate mechanisms to deal with the constitutional limits to the Commonwealths powers?

34. What are the advantages and disadvantages of retaining government’s primary responsibility for administering food labelling regulations?

35. If a move to either: self regulation by industry of labelling requirements; or co-regulation involving industry, government and consumers were to be considered, how would such an arrangement work and what issues would need to be addressed?

National Foods supports the continued use of self-regulatory industry codes – which as a company we have adopted and are compliant. There is good evidence of voluntary industry codes working well. For example, the food industry’s Code of Practice for Nutrient Claims in Food Labels and in Advertisements.

Mandatory regulation should only be imposed where self-regulation has proven to fail, in relation to health and safety.

18 This aligns with the National Preventative Health Taskforce report (June 2009), for a ‘responsive regulation’ system that begins with voluntary regulation and moves to mandatory regulation only as needed/ demonstrated through good evidence14. The Report states that ‘responsive regulation’ should be considered as the ideal approach for food labelling policy and law.

Responsive regulation is an escalating approach which starts by using non legislative changes, such as self-regulation, codes of practice and incentive schemes. These are trialled, measured and assessed first, and only upon their failure to achieve desired outcomes – based on sound evidence – are more rigorous methods considered. This may escalate to the trial of co-regulatory approaches before full regulation and enforcement is used. Such an approach permits enforcement to be focused on priority areas, and reflects that policy drivers for mandatory laws differ from voluntary standards. It also aligns with the AFGC ongoing request for the use of Codes of Practice to deliver food policy outcomes, and past and present use of the:

. Code of Practice on Nutrient Claims in Food Labels and in Advertisements

. Responsible Children’s Marketing Initiative of the Australian Food and Beverage Industry

. Australian Food and Grocery Council, and the food and beverage industry’s voluntary front of pack labelling scheme ‘Daily Intake Guide Labelling Scheme’.

National Foods has demonstrated successful compliance of voluntary regulation through the policy adoption and implementation of two important voluntary labelling codes; the Code of Practice on Nutrient Claims and the above mentioned Daily Intake Guide Labelling Scheme which we are currently implementing.

The Code of Practice for Nutrient Claims in Food Labels and in Advertisements (CoPoNC) was developed by an extensive and consultative process involving stakeholders from food industry, regulatory, health professional and consumer interest groups.

At that time, and still today, the CoPoNC remains a major cooperative achievement in gaining consensus on the criteria, guidelines acceptance and adherence to nutrition content claims.

National Foods has supported and complied with CoPoNC since its inception in 1995. National Foods submits that CoPoNC is minimum effective self-regulation, which is working.

As noted by FSANZ on page 18 of the P293 (Initial Assessment Report) that:

“The majority of manufacturers abide by the criteria in CoPoNC; therefore the nutrition claims on most products have a sound basis and help consumers make informed choices”15.

Independent research of over 6500 labels (with 4401 claims) of packaged foods sold in supermarkets, in August-September 2001, found 87% of label claims were compliant with either CoPoNC or with the (old) Food Standards Code16. The rate of non compliance for all CoPoNC claims was 14.7%, and 13.3% for Food Standards Code claims. This indicates that manufacturers comply similarly with both regulated and voluntary provisions.

19 In conjunction with the use of sound evidence to establish food labelling law and policy, ‘responsive regulation’ should help avoid the imposition of unjustifiable regulatory burdens on business. This is important as there are many practical considerations to implementing food labelling law, such as the cost to the whole of industry of label changes, practicalities of space on labels and packages, and the difficulties for ‘fresh’, food service and the restaurant sector.

36. In what ways does such split or shared responsibility strengthen or weaken the interpretation and enforcement of food labelling requirements?

37. What are the strengths and limitations of the current processes that define a product as a food or a complementary medicine?

Refer to question 11

38. What are the strengths and weaknesses of having different approaches to the enforcement of food labelling standards for imported versus domestically produced foods?

39. Should food imported through New Zealand be subject to the same AQIS inspection requirements?

Questions 36, 38-39 – Nil comment

20 Appendix 1

National Foods comments on the proposed Nutrition, Health and Related Claims Standard

National Foods supports the Ministerial Council Policy Guideline on Nutrition, Health and Related Claims. However, the draft Standard is significantly different from the framework described by the Policy Guideline, and in its proposed form National Foods does not support the introduction of the Standard for Nutrition, Health and Related Claims. It is overly prescriptive, difficult to enforce, and fails to deliver obvious benefits to the consumer. It has digressed from a focus on ‘whole of diet’, to individual nutrients.

We raise particular concern with the proposed Nutrient Profiling Scoring Criteria (NPSC) for GLHC, [and potentially NCC]. Under the proposed NPSC certain cheese, flavoured milk and white milks would not meet the scoring criteria and qualify to make general level health claims. These are core foods that add valuable nutrients to the Australian diet, and would severely restrict their communication potential to consumers.

We support retaining the claims and criteria currently in the Code of Practice on Nutrient Claims and the Food Standards Code – updated to reflect new scientific evidence and international scientific consensus.

The proposed Nutrition, Health and Related Claims Standard should be amended to allow HLHCs. This would reflect the principle of minimum necessary regulation.

Substantiation of health claims should be commensurate with the ‘level’ of risk for the claim17. National Foods proposes that health claims should require a ‘weight of scientific evidence’ or ‘consistently agreed evidence’ (terms used to replace ‘probable levels of evidence’), as opposed to a ‘convincing level of evidence’ – a position FSANZ has changed to despite earlier recommendations for a ‘probable level of evidence’.

As extracted from the Ministerial Policy Guideline on Nutrient, Health and Related Claims (2004)18:

The Policy Guideline explains that the level of evidence should be commensurate with the ‘level’ of the claim and Policy Principle 6 states:

“…contain a process of substantiation which aligns levels of scientific evidence with the level of claims along the theoretical continuum of claims, and at minimum costs to the community”.

That is HLHCs should require pre-market approval and be substantiated with convincing evidence.

GLHCs should be industry self-substantiated whereby manufacturers should be required to hold a dossier of evidence based on ‘consistently agreed’ or the ‘weight of the evidence’ criteria. This is described clearly by the Policy Guidelines:

21 “The level of a claim, as determined by the claims classification framework, will determine to what degree the claim is regulated, including the nature of the evidence required for substantiation. Only high level claims will be pre- approved, with approved claims being listed in the Standard.”

“General level claims are claims where the manufacturer has to make an assessment of the evidence supporting the claim prior to the product going to market, and to hold the evidence (to be produced at the request of enforcement agencies)”.

“For simple nutrient content claims, the manufacturer needs to hold evidence that the product contains the relevant component(s) in the amount(s) being claimed, and to meet any qualifying or disqualifying criteria specified in the Standard. For other general level claims, there are two alternative requirements: where the evidence is ‘consistently agreed’ or where there is ‘weight of evidence”.

“‘Consistently agreed’ evidence for a claim refers to the conclusion that there is a sufficient body of sound, relevant scientific evidence that shows consistency across different studies and among different researchers. This body of evidence permits the key determination of whether a change in the dietary intake of the substance will result in an outcome consistent with the claim being made. For ‘consistently agreed’ evidence the manufacturer is required to hold appropriate scientific evidence of why and where the claim is substantiated, as well as evidence that the product contains an adequate amount of the relevant component(s)”.

“‘Weight of evidence’ applies when the accepted scientific evidence for the claim outweighs any opposing evidence. Manufacturers will be required to hold this evidence in the form of a dossier consisting of:  copies of the relevant studies;  an outline of all the evidence available and a summary evaluation of the totality of evidence;  together with evidence that the product contains an adequate amount of the relevant component(s)”.

FSANZ have previously conceded that it is not necessary to have ‘convincing’ levels of evidence for GLHCs and that the level of evidence should be commensurate with the ‘level’ of claim.

Specific issues in relation to the draft Nutrition, Health and Related Claims Standard (provided as examples):

– National Foods submits that ‘free’ claims should continue to be permitted to allow for minute residuals of nutrients that are physiologically, clinically and nutritionally insignificantly different to a zero percentage content of that nutrient. Allowing these minimal residual limits is consistent with international food standards and complementary to the objectives of food regulation.

22 – FSANZ has been selective in which ‘free’ claims should remain with criteria. For example, ‘cholesterol free’ and ‘fat free’ claims have been omitted but ‘gluten free’ and ‘lactose free’ claims are included because they pose public health and safety concerns.

National Foods proposes that the criteria for all ‘free’ claims currently in the market be included in the draft standard, not selective ones.

National Foods submits that both fat and cholesterol can also pose public health and safety concerns. Whilst saturated fat may be more detrimental to cholesterol levels, the National Heart Foundation of Australia still recommends that people with high cholesterol should restrict their intake of cholesterol rich foods19,20. The impact of high cholesterol accounts for more than 10% of all heart disease deaths, or more than 15,000 deaths in 200321. National Foods submits that dietary cholesterol can pose a public health and safety issue for people with high blood cholesterol levels. Dietary fat may also pose a public health issue with almost 60% of the adult population in Australia being overweight or obese22. For these people ‘fat free’ claims may assist them with monitoring their fat and energy intakes.

– ‘Light/Lite’ claims should also operate within the current CoPoNC criteria, with both ‘reduced’ and ‘low’ criteria permitted under this claim.

– National Foods strongly opposes limiting glycaemic index and glycaemic load claims to numeric values only. Both numeric values and ratings (i.e. low, medium and high) should be available for use.

– The Company submits that all levels of content claims for biologically active substances be permitted (i.e. ‘source’; ‘good source’), if scientifically substantiated. This promotes consistency and harmonisation of regulation.

– National Foods strongly opposes the introduction of disqualifying criteria to health claims. This opposes the COAG principles of ‘reducing the regulatory environment’. It has the potential to negatively influence dietary choices by precluding core foods such as milk, cheese, bread and fruits from making health claims.

– National Foods has provided market data to FSANZ to demonstrate the impact if the current claims criteria is changed. Based on data from 2006, we estimated this to be $3,000,000. Costs for redundant materials, education and resources, would be additional.

– National Foods advocates the introduction of scientifically substantiated HLHC, but raises concerns with the limited application and lack of consideration of scientific evidence. Only nine HLHC have been proposed to date.

– Related health claims, i.e. endorsements and trademarks, fall outside of the jurisdiction of FSANZ and should be excluded from this Standard.

23 References

24 1 National Heart Foundation of Australia (2009) Heart Foundation Tick – Two decades of helping Australians choose healthier foods http://www.heartfoundation.org.au/sites/tick/SiteCollectionDocuments/Credentials_A4_LowResForWeb_2009 _FINAL.pdf

2 National Preventative Health Taskforce (June 2009). Australia: the healthiest country by 2020. National Preventative Health Strategy – Overview.

3 Attachment 3 2007/2008 FRSC Front of Pack labelling Working Group http://www.health.gov.au/internet/main/publishing.nsf/Content/FF1FA0AAD23A3173CA2574E3001238A0/$Fi le/Consultation%20Paper%20-%20Att%203%20-%20Information%20from%202007-2008%20FRSC %20FOPL%20Working%20Group.pdf

4 FSANZ Vision, May 2010 http://www.foodstandards.gov.au/scienceandeducation/scienceinfsanz/

5 Williams P. (2005). Consumer understanding and use of health claims for foods. Nutrition Review. Jul; 63(7): 256-64. 6 National Food Authority (1995). Code of Practice for Nutrient Claims in Food Labels and in Advertisements, Commonwealth of Australia.

7 ACCC (2006). Food and beverage industry – food descriptor guideline to the Trade Practices Act, Commonwealth of Australia.

8 Sacks G et al. (2009). Impact of front-of-pack ‘traffic-light’ nutrition labelling on consumer food purchases in the UK. Health Promotion Int. 2009 Dec; 24(4):344-52.

9 Heart Foundation (2008). Australians and front of pack labelling – what we want, what we need.

10 Kelly B et al on behalf of a Collaboration of Public Health and Consumer Research Groups (2008). Front- of-Pack Food Labelling: Traffic light labelling gets the green light. Cancer Council: Sydney 2008.

11 National Heart Foundation of Australia (Jan 2010) National Heart Foundation Tick in the Supermarket. http://www.heartfoundation.org.au/sites/tick/consumers/Pages/Tickinthesupermarket.aspx

12 National Heart Foundation of Australia (2009) Heart Foundation Tick – Two decades of helping Australians choose healthier foods http://www.heartfoundation.org.au/sites/tick/SiteCollectionDocuments/Credentials_A4_LowResForWeb_2009 _FINAL.pdf

13 European Food Information Council (2008). Pan-European consumer research on in-store observation, understanding & use of nutrition information on food labels, combined with assign nutrition knowledge.

14 National Preventative Health Taskforce (June 2009). Australia: the healthiest country by 2020. National Preventative Health Strategy – Overview.

15 Proposal 293 Initial Assessment Report 11 August 2004: http://www.foodstandards.gov.au/foodstandards/proposals/proposalp293nutritionhealthandrelatedclaims/p29 3initialassessmen3500.cfm

16 Williams P et al (2003). Nutrition and related claims used on packaged Australian foods – implications for regulation. Asia Pacific Journal of Clinical Nutrition. 12(2): 138-150.

17 ANZFRMC, 2004. Ministerial Policy Guidelines on Nutrient, Health and Related Claims.

18 ANZFRMC (2004). Ministerial Policy Guidelines on Nutrient, Health and Related Claims. Pg 4.

19 Heart Foundation (1999). Dietary Fats Position Statement.

20 Heart Foundation (2004). Dietary Fats and Heart Disease.

21 Heart Foundation (2007). The burden of cardiovascular disease in Australia for the year 2003. 22 The Australian New Zealand Obesity Society (2009).