Confusing FSANZ responses to food additive issues

By Joe Lederman and John Gao © Lawmedia Pty Ltd, September 2007
Australian Lawyers and Consultants

Two recent events have raised concerns over the laws governing certain food additives and ingredients to foods in Australia. We comment on each issue.

(1) Links between artificial colours and preservatives and childhood hyperactivity

On 6 September 2007, Food Standards Australia New Zealand (‘FSANZ’) announced that it is examining a study, published in the British medical journal The Lancet which concluded that artificial colours or sodium benzoate in the diet of young children is likely to result in increased hyperactivity. FSANZ, however, has not stated whether or not a review of the safety of any food additives in Australian foods will be conducted.

The study appears to confirm concerns linking artificial additives with hyperactivity in children which were first raised by American doctor, Dr Ben Feingold, in the 1970’s and which were given considerable publicity on Australia’s public broadcaster, ABC, on numerous occasions over the past 3 decades.

In its announcement, FSANZ commented that adverse reactions to foods and food additives occur in a small proportion of the population suggesting that there may be a presumption from FSANZ that the issue may not be serious enough to warrant any change to the Australia New Zealand Food Standards Code.

In a similar response to a study in 2006 concerning the links between sodium benzoate in soft drinks and benzene contamination (which may be a carcinogen), FSANZ conducted a study on the prevalence of sodium benzoate in Australian soft drinks and the amount of consumption by Australian consumers. FSANZ concluded that while benzene is present in beverages in Australia, its low prevalence has ‘a very small impact on overall benzene exposure’.

Companies should note, however, that regardless of whether or not FSANZ takes any action on changing Food Standards regarding the acceptability of some food additives, there may still be legal liabilities for product liability should it transpire that there is any long-term harm resulting from the use of a harmful food additive. The legal defence of claiming "state of scientific knowledge", which is a defence that may be used in a product liability case or in a case brought by someone claiming negligence by the food company, would be weakened by the existence of scientific evidence against the use of a harmful additive.

In court cases involving smoking and asbestos, it should be noted that companies such as British American Tobacco and James Hardie were required to defend legal battles over personal injury claims brought by people who suffered harm as a result of using products that were legally acceptable and not illegal when produced, and yet claims for substantial damages or compensation settlements have been successful.

(2) Isomaltulose: FSANZ approves first, then asks questions

On 13 August 2007, Food Standards Australia New Zealand (‘FSANZ’) released a media release warning of the dangers of isomaltulose for consumption by those with disorders in fructose metabolism. Isomaltulose is a low Glycaemic Index sugar replacement product which was approved for use as a “Novel Food” following gazettal of Application A578 on 2 August 2007. The Final Assessment Report for Application A578 had been released on 23 May 2007.

In its Final Assessment Report, FSANZ recognised that Isomaltulose causes health problems in individuals that are intolerant to fructose or who lack the enzyme isomaltase for breaking down isomaltulose.

However, FSANZ’s conclusion was that it did not feel there was any need for food companies to issue mandatory warnings to consumers but, instead, that an education campaign be conducted to warn medical practitioners to pass on to such consumers, it being assumed that they might be regular visitors to a medical practitioner.

This conclusion was reached despite concerns in the Final Assessment Report that suggested that people who may be sensitive to fructose are unlikely to recognise isomaltulose as a harmful substance.

The Food Standards Australia New Zealand Act 1991 states in Section 18(1) that the primary objectives of FSANZ in developing or reviewing “food regulatory measures” are:

(a)    the protection of public health and safety; and
(b)    the provision of adequate information relating to food to enable consumers to make informed choices; and
(c)    the prevention of misleading or deceptive conduct.

FSANZ admitted in its Final Assessment Report on page 14 that ‘the effectiveness of this approach [only notifying medical practitioners] in relation to previous similar circumstances (e.g. in the approval of D-tagatose) has not been specifically evaluated’. The effectiveness of FSANZ’s safety plan which only indirectly informs vulnerable consumers through their medical practitioners and does not give adequate transparency to consumers might well deserve a query.

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.