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Does mentioning a healthy ingredient constitute a health claim or a nutrition content claim?

Published: 13 Nov 2017

Does mentioning a healthy ingredient constitute a health claim or a nutrition content claim?

 

By Charles Fisher (Principal, FoodLegal) and Jenny Awad (Lawyer, FoodLegal)

© Lawmedia Pty Ltd, November 2017

 

Claims such as “rich in Vitamin C”, “low in fat”, “contains antioxidants” and “reduces the risk of heart disease” may be made in relation to certain food products. Are these health claims or nutrition content claims? It is important to comply with the prescribed rules in the Food Standards Code before making such claims to avoid breaching the Australian Consumer Law.

 

Health and nutrition content claims are regulated under Standard 1.2.7 of the Australia New Zealand Food Standards Code (Food Standards Code).

 

A health claim is one which states, suggests or implies that a food has or may have an effect on the human body. Such effects include biochemical, physiological or functional processes or outcomes. An example of a health claim is that a product “reduces the risk of heart disease”.

 

A nutrition content claim is a claim that only relates to the presence or absence of a biologically active substance (as per Section 1.1.2-9). A biologically active substance is defined as a substance, other than a nutrient, with which health effects are associated. Examples of nutrition content claims include “rich in Vitamin C”, “low in fat” and “contains antioxidants”. These claims do not imply a physiological effect on the human body and therefore are not considered health claims.

 

The majority of food products are strictly prohibited from making health claims unless they meet a nutritional profile called the Nutrient Profiling Scoring Criterion (NPSC) in Schedule 4 of the Food Standards Code. The NPSC profiles food products according to their sugar, salt, saturated fat, energy, fibre, protein and fruit and vegetable content.

 

Generally a food product is not required to meet the NPSC in order to make a nutrition content claim. However, there are some exceptions depending on whether the substances is listed in S4-3 of Schedule 4. For example, an “increased carbohydrates” claim may only be made if the food contains 25% more carbohydrates than in the same amount of a reference food.

 

The difficulty arises when mentioning the presence, absence or amount of a biologically active substance implies health benefits while technically satisfying the definition of a “nutrition content claim”.

 

For example, the claim “Bursting with probiotics!” reads as though it is a “nutrition content claim” as it simply mentions the presence, and arguably the amount, of probiotics in the food product. On the other hand, this claim may also be implying that the food product will promote gut health (a physiological effect on the human body commonly associated with the consumption of probiotics) and in that sense may also be considered a “health claim”.

 

On the other hand, a claim that a product is “Rich in Vitamin C” simply declares that the product contains Vitamin C. This claim states the presence of a biologically active substance, namely, Vitamin C, in the food product. This means the claim is a nutrition content claim. It does not imply a physiological effect on the human body and therefore it is not a health claim. Although consuming Vitamin C does have many health benefits, these benefits vary more greatly than the benefits associated with consuming probiotics, making it more difficult to show a connection between the food product and a specific health benefit.

 

Any products which are ineligible to make or incorrectly make health claims or nutrition content claims may mislead or deceive consumers. The Australian Consumer Law expressly prohibits engaging in misleading or deceiving conduct and the making of false representations with respect to composition. Where the ACL is contravened, significant penalties may be imposed by the Australian Competition and Consumer Commission.

 

FoodLegal’s principal, Charles Fisher, is running a Health Claims half-day workshop in Sydney (Tuesday 21 November 2017) and Melbourne (Thursday 23 November 2017). The workshop will explore how food businesses and companies can best harness the laws on health claims on nutritional claims and other marketing messages to convey the health message.

The workshop will address health message questions such as:

·         What health message opportunities are there for different kinds of products and marketing?

·         What limitations exist for the marketing claim of a functional food?

·         Will any of your products be ‘special purpose’ foods, and what are the marketing options?

·         How can all regulatory risks be addressed?

·         What short-cuts and opportunities are ‘high-risk’ or ‘medium risk’ or ‘low risk’?