Food Standards Australia New Zealand (FSANZ) today called for submissions on its proposal to change the Food Standards Code to expand the range of claims that can be made about formulated supplementary sports foods (FSSFs), electrolyte drinks and electrolyte drink bases (EDs).

The proposed changes coincide with a recent article written by Charles Fisher, a food lawyer and Principal of leading consultants FoodLegal. In his article, Mr Fisher identified serious anomalies that limited the scope for health claims for electrolyte drinks and other beverages caused by the eligibility criteria requirements for making health-related marketing claims under the new Health Claims standard.

FSANZ Chief Executive Officer Steve McCutcheon said that “While these products can already carry some claims that are specified in the Code, the claims are very limited”.

“FSANZ is proposing to change the Code so that these products can carry a broader range of health claims related to their purpose and composition,” Mr McCutcheon said.

“The proposed change will more closely align the current permissions for claims about physical performance for FSSFs and EDs with the claims that are now permitted for general foods,” Mr McCutcheon said. “Formulated supplementary sports foods and electrolyte drinks are regulatory categories of food. Only a small number of products are in each category,” he said.

Under the proposed changes, regulation of electrolyte drinks would also be moved to the Formulated Supplementary Sports Foods Standard because they are a food related to physical performance.

The closing date for submissions to be made to FSANZ in relation to its Proposal is 30 September 2014.

How the new Health Claims standard impacts on the marketing of electrolyte and sports drinks

Mr Fisher’s article in the June-July 2014 edition of the FoodLegal Bulletin showed that the Australia New Zealand Food Standards Code (the Food Standards Code) defines a “sports food” and an “electrolyte drink” as follows:

• electrolyte drink means a drink formulated and represented as suitable for the rapid replacement of fluid, carbohydrates, electrolytes and minerals.
• formulated supplementary sports food means a food or mixture of foods specifically formulated to assist sports people in achieving specific nutritional or performance goals.

“The very legal definitions of these products require these products to have an effect on the body of the consumer,” Mr Fisher wrote. “In relation to electrolyte drinks, these products arguably by design and by legal requirement must replenish carbohydrates, electrolytes and minerals faster than would be the case by consuming just water. In the case of sports foods, the product must assist people in achieving performance goals (leaving aside the issue of what makes a person a “sports person”),” he said.

Mr Fisher’s article questioned whether such products were allowed to make claims about their beneficial effect on the human body under the new Health Claims standard, even though their legal definition required that they must have such an effect. He said that any claim that even implied that a food product may cause a biochemical process or outcome in the human body or that the product could affect physical performance now constituted a “health claim” under Standard 1.2.7.

“In order to legally make a health claim, a product must meet a Nutrient Profiling Scoring Criterion (which could limit some electrolyte drink products from making health claims at all),” Mr Fisher said.

Furthermore, Mr Fisher said that unless a health claim was expressly listed in one of the Schedules to Standard 1.2.7, a systematic review of the scientific literature must be conducted and FSANZ notified in order to make a claim.

“Clearly, the costs incurred in conducting such a systematic review could be significant,” Mr Fisher said.

In his article, Mr Fisher considered the term “rehydration” in relation to sports and electrolyte drinks. He suggested that the questions of whether “rehydration” was simply a nutrient claim, or whether it was in fact a health claim, could have major implications for industry.

The majority of electrolyte drinks and many sports drink products are designed to assist in rehydration. “Rehydration” broadly refers to the replenishment of bodily fluids. However, what separates electrolyte drinks and sports drinks apart is their ability to replenish other nutrients beyond simple fluids.

“If “rehydrate” and other common claims are actually health claims, this will mean that when compliance with Standard 1.2.7 becomes mandatory in January 2016, every single supplier of electrolyte drinks and sports foods will need to have conducted a systematic review for the scientific substantiation of their health claim to be used from that date,” Mr Fisher said. “This is obviously a large investment for individual companies that they have not had to make before and, when considered on an industry-wide scale, places a huge cost burden for a new regulation to be imposing on a food category for what is the currently acceptable market practice,” he said.

“So on the one hand, in order to manufacture and sell an electrolyte drink or sports food, the product must be designed to have an impact on the human body,” Mr Fisher said. “On the other hand, those very products may be prohibited from detailing what they have been legally designed to do without undergoing a significant compliance investment first,” he said.

Latest FSANZ Proposal could be ‘insufficient’ to address numerous other issues

Commenting on the latest FSANZ Proposal to consider amending the Food Standards Code, Mr Fisher said the new FSANZ Proposal may be insufficient to address all the relevant issues.

“It is clear that FSANZ Proposal P1030 is seeking to redress a glaring inconsistency and perhaps unintended regulatory burden on two categories of products,” Mr Fisher said. “However, this problem is not limited to just these products. There are further implications for numerous other food and beverage categories,” he said.

Mr Fisher said that energy drink products faced a similar problem as energy drinks were defined in the Food Standards Code as existing “for the purpose of enhancing mental performance.”

“Unless a similar Proposal is put by FSANZ targeting common “energy drink” claims, every single energy drink supplier in Australia will have to conduct a systematic review substantiating claims on behalf of caffeine, B vitamins, taurine, etc and especially in relation to enhancing mental performance despite these elements being legally required for such products,” Mr Fisher said.

Read the full FoodLegal Bulletin article here.