FoodLegal

By Jenny Awad (FoodLegal Co-Principal) and Blake Weinberger (FoodLegal Consultant)

© Lawmedia Pty Ltd, September 2023 

Food Standards Australia New Zealand (FSANZ) has been conducting a review of the regulations relating to formulated supplementary sports foods (sports foods), with a particular focus on the marketing and advertising of these products. This article addresses the possible implications for businesses wanting to market sports food products in Australia and New Zealand.

Background to the review into sports foods

The Food Standards Australia New Zealand (FSANZ) Proposal P1010 review into Formulated Supplementary Sports Foods (P1010) was initiated in 2019 to review Standard 2.9.4 of the Australia New Zealand Food Standards Code (Food Standards Code) which regulates formulated supplementary sports foods (sports foods).

Standard 2.9.4 of the Food Standards Code imposes compositional permissions and marketing restrictions, especially regarding nutritive substances such as vitamins, minerals and amino acids. The first component of P1010 was focused on ingredients, and consultation closed on 9 March 2023. The submissions received by FSANZ as part of this initial consultation mainly referred to ingredients of interest (such as caffeine) and other innovative ingredients which may only be used if an application is made to amend the Food Standards Code (which is typically a costly and time-consuming process). The submissions also raised concerns about whether the definition of a sports food is fit for purpose, whether new one-day quantity restrictions need to be implemented, and whether mandatory warning and advisory statements need to be made clearer.

The marketing conundrum created by the current sports foods regulations

Sports foods are defined in Section 2.9.4-2 of the Food Standards Code as foods which have been specifically formulated to assist sports people in achieving specific nutritional or performance goals. However Section 2.9.4-7 states that - unless it is a high carbohydrate supplement, protein energy supplement, or energy supplements – a sports food is prohibited from making an express or implied representation that relates any property or proposed use of the food to enhanced athletic performance or beneficial physiological effects. In addition, under Standard 1.2.7 and Schedule 4 of the Food Standards Code, sports foods are not eligible to make pre-approved general level health claims on behalf of vitamins and minerals.

The conflicting interaction between the definition of a sports food, the broad prohibition on health-related representations, and the pre-approved health claim conditions results in a significant challenge for food businesses wishing to communicate the unique health benefits and purpose associated with their innovative sports food formulations. This marketing conundrum also raises concerns around sports foods containing traditional food ingredients and sold in traditional food formats being inadvertently captured as therapeutic goods.

FSANZ shifts its focus to sports food marketing

On 24 July 2023, FSANZ published its second consultation paper seeking stakeholder comment on various questions relating to the marketing of sports foods, especially regarding nutrition and health claims. The deadline for making submissions on the second consultation paper closed on 4 September 2023.

FSANZ did not suggest a regulatory approach in the second consultation paper, but instead raised a wide variety of questions for stakeholder comment, including:

·         Whether the broad prohibition in Section 2.9.4-7 on representations about improved athletic performance or beneficial physiological effects should be retained?

·         Whether Standard 1.2.7, which regulates health and nutrition content claims on other foods, should also be applied to sports foods?

·         Whether sports foods should be permitted to make “good source” nutrition content claims about vitamins and minerals?

·         Whether sports foods should be permitted to make high-level health, self-substantiated general level health claims and endorsements?

·         Whether the exemption from meeting the nutrient profiling scoring criterion (NPSC) should be retained for sports foods?

How the FSANZ review into sports food marketing can impact your products

The outcome of the current FSANZ consultation is likely to have a significant impact on the future regulation of sports food marketing.

For example:

·    If the definition of a sports food becomes more restrictive, this could impact the labelling, marketing and distribution of products currently available on the market which are being consumed by sports people as well as the general population.

·   If Standard 1.2.7 is applied to sports foods, additional labelling obligations could be triggered when communicating health effects resulting in the need to update existing labelling.

·  If sports foods are permitted to make self-substantiated health claims, there could be new and exciting ways for businesses to communicate the unique benefits of innovative ingredients, which could in turn drive new product development.

·   If the exemption from needing to meet the NPSC is removed, some sports foods may need to be reformulated.

FoodLegal can support you in staying up to date with the latest developments on the FSANZ review into sports foods. FoodLegal can also support you in achieving compliance by providing internal training, label assessments and advice on product formulation changes.

This is general information rather than legal advice and is current as of 11 Sep 2023. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.