Food experts call for stricter law enforcement on “natural” and “superfoods”

Posted by Daniel Palmer on 25th August 2009

Usage of the food descriptors ‘natural’, ‘superfood’ and ‘antioxidants’ has been debated by six leading food experts at the recent FoodLegal symposium, with calls made for tighter enforcement of such claims.

Leading food nutrition academic, Dr Peter Williams – Associate Professor in nutrition and dietetics at the Smart Foods Centre of the University of Wollongong, delivered a presentation of a descriptive pilot study entitled “How is ‘naturalness’ in food perceived by Consumers, used by Manufacturers, and regulated by food authorities?”. He indicated that regulatory guidelines on the meaning of the term ‘natural’ might be difficult to convey because of differing understandings by consumers and regulators.

The complexities arose from a lack of consensus on the level of processing of ingredients in a product purporting to be ‘natural’. The particular study, which also discovered a link in consumer perception of ‘healthy’ and ‘natural’, will be published in the September 2009 issue of the AIFST journal ‘Food Australia’.

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FoodLegal Managing Principal, Joe Lederman, who is also Adjunct Professor of Food Law at Deakin University, gave a detailed legal analysis of the proscriptions against ‘misleading and deceptive conduct’ and ‘false or misleading’ representations in Part V of the Trade Practices Act. Professor Lederman analysed recent court cases highlighting the regulatory tests being taken by the Australian Competition and Consumer Commission (ACCC) under Sections 52 and 53 of the Trade Practices Act and explained how these might apply to ‘natural’ and ‘superfood’ and ‘anti-oxidant’ claims. Such legal analysis was reinforced by the findings of consumer advocacy group CHOICE, whose senior policy officer, Clare Hughes, challenged the position taken by the ACCC to accept various claims being made in relation to an enhanced water product.

It was suggested that the ACCC had displayed an inconsistency or, at least, created market uncertainty in the nature of its subjective approach to enforcement of the law on misleading claims in relation to a variety of products supplied by some of Australia’s largest food companies.

Ms Hughes also contested the notion that ‘natural’ processed foodstuffs in the healthfood sections of Australian supermarkets are healthy. Her illustrations at the symposium included a popular yoghurt-coated fruit and nut bar which CHOICE had found to contain more fat than fruit and “had more saturated fat than a cheeseburger”, as well as a healthfood aisle potato chip brand that had fat levels higher than the more well-known conventional brands.

Food Standards Australia New Zealand (FSANZ) representative Jane Allen, Manager of Labelling and Information Standards at the government food standards agency, provided delegates with an update on the proposed Nutrition and Health Claims Proposal P293. The latest draft (of proposed Standard 1.2.7) is currently being reviewed with further input by stakeholders sought following a decision by the Food Regulation Ministerial Council to not accept the existing draft released as part of its March Consultation Paper.

FL Symposium

There have been at least 3 drafts over the past 4 years and the future timing of the introduction of a new Health Claims Standard for Australia and New Zealand remains unclear.

The Food Regulation Ministerial Council chaired by the new Federal Parliamentary Secretary for Health, Mark Butler, whose appointment carries responsibility for FSANZ, is responsible for determining the final outcome for the new Standard.

Antioxidant regulation
Several speakers highlighted that the update to the Standard will have an impact on antioxidant claims – which are partially regulated by the current Standard. At this point in time, the amount of the antioxidant needs to be specified and, where a reference value (e.g. daily intake) exists for the particular antioxidant, that reference value would need to be referred to along with the amount.


Under the new proposed Standard, the type of health claim would need to be specific and explicit. If there was not a relevant reference value for a particular antioxidant, then no minimum amount of such an antioxidant could be prescribed on the labelled food, so that descriptors such as ‘rich source of’ would not be permitted. The Trade Practices Act requirements currently also require full substantiation of any antioxidant claims to avoid being ‘misleading or deceptive’.

Health benefits
World-renowned scientific expert on antioxidants Dr Dilip Ghosh spoke on the subject “Antioxidants: Good, Bad or Indifferent for your Health”. He presented scientific and technical analysis of research of the comparisons being cited in antioxidant claims for different products and for different antioxidants. Dr Ghosh presented a detailed analysis of the peer-reviewed scientific literature and data that had compared assays or antioxidant reactions or the actual human effects for either the short term or long term in relation to a variety of antioxidants.

Richard Stenning, a food technologist from food company GNT International, presented a case study of the EU regulatory position for his company’s natural colouring foodstuffs. His presentation highlighted the distinctions drawn between artificial colour additives and natural food-based colourants, and the contrasts between different forms of processing such as water-based processing in comparison with artificial or chemical-based solvent usage.

Around 100 people from most of Australia’s leading food companies and retailers as well as representatives of government agencies attended the symposium at Sydney’s Menzies Hotel. FoodLegal lawyer, Charles Fisher, who chaired the symposium and hosted the interactive forum, said there had been considerable positive and constructive feedback to each of the presentations.

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