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Australia; New Zealand: New Food Labeling Standard Requires Manufacturers to Prove Health Claims

(Apr. 11, 2013) On April 7, 2013, New Zealand’s Minister of Food Safety, Nikki Kaye, announced that she had signed into law a standard that will require food manufacturers to provide scientific evidence to support all health and nutrition claims made in relation to their products. (Press Release, Hon. Nikki Kaye, New Food Health Labelling a Win for Consumers and Exporters (Apr. 7, 2013), BEEHIVE.GOVT.NZ.) This action will give legal effect in New Zealand to new rules that were agreed to by the Australian and New Zealand governments in December 2012 as part of the joint Legislative and Governance Forum on Food Regulation, which oversees the Food Standards Australia New Zealand (FSANZ) system. (Press Release, Hon. Kate Wilkinson, Decision Paves the Way for Innovative Foods for Health (Dec. 7, 2012), BEEHIVE.GOVT.NZ.)

The rules are contained in the Australian New Zealand Food Standards Code – Standard 1.2.7 – Nutrition, Healthand Related Claims (COMLAW). According to FSANZ, “[f]ood-health relationships derived from health claims approved in the European Union, Canada and the USA have been considered for inclusion in the Standard.” (Nutrition, Health and Related Claims, FSANZ (Jan. 2013).)

The Australian and New Zealand governments have been discussing the development of approaches to “front of pack” health labeling since 2003. (Historical Development of Draft Standard 1.2.7 – Nutrition, Health and Related Claims, FSANZ (Jan. 2013); Editorial: Labelling Rules for Food Overdue but Welcome,The New Zealand Herald (Apr. 9, 2013).) Prior to the adoption of the new standard, in New Zealand the Commerce Commission had to prove that a health claim was misleading before action could be taken against the manufacturer. The agreed rules reverse this onus, requiring food businesses wanting to make “general health claims” (those which refer to a nutrient or substance in a food and its effect on a health function) on a product to “base their claims on one of the more than 200 pre-approved food-health relationships in the Standard or self-substantiate a food-health relationship in accordance with detailed requirements set out in the Standard.” (Nutrition, Health and Related Claims,supra.)

Businesses that wish to self-substantiate a food-health relationship must notify FSANZ of the relationship prior to making a general health claim on food labels or in advertisements. FSANZ will keep a public record of businesses that have chosen this approach. However, businesses will not be able to use a relationship already placed on this list by other companies as a basis for their claim – they must undertake their own systematic review and notify FSANZ of the relationship. (Nutrient Content Claims and Health Claims, FSANZ (Jan. 2013).)

Businesses that make “high level health claims” (those which refer to a nutrient or substance in a food and its relationship to a serious disease or to a biomarker of a serious disease) must base these on one of 13 pre-approved food-health relationships. (Nutrition, Health and Related Claims, supra.)

Under the rules, even if a company provides scientific evidence to support health claims, such claims will not be permitted on foods that do not meet the nutrition profiling scoring criterion (NPSC). This means that, for example, “claims will not be allowed on foods high in saturated fat, sugar or salt.” (Id.)

Food businesses in Australia and New Zealand have been given three years to meet the requirements of the new standard. (Id.)