Australian Laxity in Regulation of Trans Fat

By Joe Lederman
© FoodLegal, March 2006.

This article examines the recognized health risks of trans fat and the legal compliance implications for trans fat content for foods sold in Australia.

On 1 January 2006, it became compulsory in the USA for all food products sold in the USA to state the ‘trans fat’ content on their Nutrition Information Panels under a rule passed by the US Food and Drug Administration in 2003[1]. This USA change followed the introduction in Denmark in 2003 of laws requiring all foods to contain less than 2% trans fat.

In Australia, there is currently no limit on the amount of trans fat present in foods nor are there requirements to state the level of trans fat content unless nutrition content claims have been made in relation to fats or health claims have been made relating to cholesterol.

In Australia numerous margarines, biscuits, cakes and other baked products and various fried products may contain trans fat, but Australian laws do not require these to be always declared. Even worse, the proposed new standard for health claims and nutrition claims would allow products with such claims to include trans fat under some circumstances.

An increasing number of research outcomes have shown that the consumption of trans fat is bad for one’s health. As a result of such studies, manufacturers are voluntarily removing trans fat from their products and replacing them with fat replacements. For example, Nabisco has recently introduced a version of their popular Oreo biscuits with no added trans fat[2]. With such widespread concern about the presence of trans fat in foods, should FSANZ introduce standards to limit the presence of trans fat in our foods?

What is a trans fat?

Trans fat in the food processing industry has mainly replaced solid fats, because the latter had poorer shelf life and flavour stability. ‘Trans fat’ is defined in the Australia New Zealand Food Standards Code as “the total of unsaturated fatty acids where one or more of the double bonds are in the trans configuration acids and declared as trans fat"ANZFSC Standard 1.2.8 Clause 1. Trans fat is found naturally in milk or body fats of ruminants such a cows and sheep but also more commonly now appears in foods as processed fats sourced from the process of hydrogenation of vegetable oils and other non-animal oils. The process of hydrogenation is a reaction that adds more hydrogen atoms to a fat molecule, which has the effect of making the fat physically harder by increasing the melting temperature.

Many serious health effects have been linked to the consumption of trans fat. Apart from being linked to atherosclerosis and coronary heart disease, it has also been claimed that trans fat can lead to brain damage.[3] A United States Institute of Medicine report[4] in 2002 found that the consumption of trans fat is more harmful to one’s health than the consumption of saturated fats.

Inclusion of trans fats on Nutrition Information Panels

In the United States, the FDA introduced a rule[5] that after 1 January 2006, all foods must state their trans fat content on the Nutrition Information Panel. However, Australian law is not so stringent and only requires inclusion on Nutrition Information Panels where certain nutrition claims have been made. According to ANZFSC Standard 1.2.8 Clause 5(4), trans fat content only needs to be declared where there has been a claim regarding:

  1. Cholesterol;
  2. Saturated, trans, polyunsaturated or monounsaturated fatty acids; or
  3. Omega-3, omega-6 or omega-9 fatty acids.

The declaration of trans fat content will appear under fats in the Nutrition Information Panel.

Trans fat requirements for the making of health claims

The proposed draft of the new Health and Nutritional Claims Standard (Proposed Standard 1.2.7 for the making of nutritional and health claims in FSANZ Proposal P293) allows the making of health claims regardless of trans fat content.

High Level Health Claims

In order to make high level health claims, or health claims relating to serious diseases, the food simply needs to meet the nutrition requirements set out in the Table to Clause 6 in the Proposed Standard 1.2.7. Yet the presence of trans fat does not preclude the making of any high level health claim unless it relates to the reduction of blood cholesterol, in which case the food must meet the requirements of a nutrient content claim for low saturated and trans fat.

The trans fat content of a food affects the ability of a manufacturer to make a ‘low in cholesterol’ nutrient content claims under Clause 5(1) of Proposed Standard 1.2.7 regarding:

  1. Cholesterol;
  2. Saturated, trans, polyunsaturated or monounsaturated fatty acids; and
  3. Omega-3, omega-6 or omega-9 fatty acids.

All of these claims require that the saturated and trans fatty acid content meet the requirements of “low saturated and trans fatty acids” in Table to Clause 11 of Proposed Standard 1.2.7, which allows for a combined amount of saturated and trans fatty acids of 0.75g in 100ml of liquid food or 1.5g in 100g of solid food.

General Level Health Claims

For the making of general level health claims, there is no general requirement for trans fat levels. There are limits on sodium, saturated fat and sugars under Clause 5(2) of Proposed Standard 1.2.7 but there are no requirements for trans fat levels in order to make a general level health claim unless the health benefit claimed is directly attributable to the food property of low fat content.

No specific limit on trans fat

Unlike other countries, Australia does not prohibit or prescribe maximum prescribed level for trans fat. Denmark was the first country in the world to introduce a maximum trans fat content level of 2% and a motion by a member of the House of Commons in Canada for a Danish-style limit on trans fat was passed, although the eventual change in Canadian law resulted in the mandatory labelling of trans fat on Nutrition Information Panels[6]. As mentioned at the beginning of this article, the USA also requires compulsory labelling of trans fat content.

Where to for Australia?

Given the seriousness of problems that trans fat causes, it may be appropriate for Australia’s food regulator, Food Standards Australia New Zealand, to consider strengthening the position of the law. At the very least, trans fat content labelling on Nutrition Information Panels ought to be mandatory on all foods as is now the case in the United States.

This is general information rather than legal advice and is current as of 12 Dec 2015. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.