New concerns are being expressed about the proposed introduction of a Health Claims standard into the Australia New Zealand Food Standards Code.

Having undertaken at least 5 draft versions of the proposed Health Claims Standard (apart from the existing Transitional Standard in the Code) since 2002, the government agency Food Standard Australia New Zealand (FSANZ) believes that it is near to finalising a new Standard that will balance all stakeholder interests.

At the recent FoodLegal-sponsored Symposium concerning the proposed new Health Claims Standard held in Sydney on 21 August 2012, FSANZ’s General Manager Mr Dean Stockwell emphasised that the Ministers’ meeting in June 2012 had continued to support key elements of the existing draft with regard to nutrition content claims, high level health claims, and the application of the nutrient profiling scoring criteria applying to general level health claims.

However, the meeting also confirmed a new working group to be established under the umbrella of the Food Regulatory Standing Committee, with key bureaucrats representing the Australian States and Territories. This working group is engaged in further stakeholder discussions about an alternative self-substantiation pathway that would allow room for some of the more innovative food companies to go outside the pre-approval regime for health claims.

Mr Stockwell outlined the key principles that would govern self-substantiation under this parallel regime. One of the key requirements would be that of a comprehensive scientific dossier.

A contentious issue raised in the presentation by FoodLegal’s managing principal Joe Lederman who expressed concerns that FSANZ’s proposed new definition of ‘health claim’ drew an artificial distinction with therapeutic claims. Mr Lederman said the current Transitional Health Claims Standard banned any therapeutic claim for food within the definition of a health claim. By contrast, the proposed new definition of a ‘Health Claim’ meant that Australia’s Therapeutic Goods Administration or New Zealand’s Medsafe could easily prosecute a health claim or even a nutritional content claim as a therapeutic claim. He gave the example of a product which might contain either a probiotic or antioxidant property.

Mr Lederman said that Australia suffered from one arm of government ignoring what another arm was doing. The food regulators were potential compounding the problem by not insisting on an adequate carve-out exclusion from the TGA.

Likewise, Mr Lederman said that Australia’s consumer protection watchdog the Australian Competition and Consumer Commission (ACCC) worked too independently of the regulatory framework of the Food Standards Code. He said that ignorance by the ACCC of the workings of the Food Standards Code created additional compliance risk exposure for food companies.

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