Gluten-free debate as AFGC pushes for change
By Joe Lederman
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, June-July 2013
The Australian Food and Grocery Council is proposing that Food Standards Australia New Zealand alter the definition of ‘gluten-free’ in Australia. This article looks at the issue.
The Australian Food and Grocery Council (the AFGC) is proposing that Food Standards Australia New Zealand (FSANZ) alter the definition of ‘gluten-free’ in Australia. The AFGC wants FSANZ to allow a food to contain up to 20 milligrams of gluten per kilogram to still be called ‘gluten-free’. This would bring the Australian regulation of ‘gluten-free’ claims in line with British and European standards. Some argue that 10 milligrams per kilogram would be safer for coeliacs.
In Australia, gluten is treated as an allergen under the Australia New Zealand Food Standards Code (the Food Standards Code). Under Standard 1.2.3 of the Food Standards Code, a food business must declare the presence of any gluten in its food product.
Additionally, where a food product’s label claims that the product is ‘gluten-free’, the Food Standards Code stipulates that ‘the food must not contain detectable gluten’ (in Standard 1.2.7).
Australian regulators take a strict view on the regulation of allergens. Both the Australian Competition and Consumer Commission (the ACCC) and the New South Wales Food Authority (the NSWFA) have maintained a strict interpretation of ‘gluten-free’ and require that it must be absolutely non-detectable. The consequence of a false claim for gluten-free’ can be a food recall.
The Food Standards Code does not stipulate a threshold or a specific testing methodology for ‘-free’ claims, beyond the definition of ‘gluten-free’ requiring that gluten be ‘not detectable’. Currently, there is no regulation on the testing methodologies used for gluten.
Trying to measure small amounts of material can be tricky. When testing products, some analytical services refer to a Limit of Detection (LOD) whereas others refer to a Limit of Quantitation (LOQ). The LOD is the level at which something can be detectedwith a level of certainty, while the LOQ is the level at which the amount of that something can be measured with a level of certainty.
As food analysis technologies are constantly evolving, the levels of detection and quantitation are becoming more finite. On the one hand, this allows more certainty in measuring the presence of smaller quantities of a substance in a food product. However on the other hand, testing methodologies have been known to be so finely tuned that the presence of gluten in the air of a testing facility may be picked up as being present in the food product when in fact that might not be the case. In such situations, certainty could be diminished.
There are important commercial and legal ramifications for the food industry if ‘gluten-free’ claims continue to be defined by lack of detection.
If the AFGC moves were to succeed, some food companies that manufacture ‘gluten-free’ foods may lose their higher price premium for products being marketed outside of the mainstream food market.
Alternatively, a new definition may give coeliacs a wider food choice and do away with unnecessary food recalls. Some coeliacs may nonetheless be concerned that 20 milligrams per kilogram is too high and that a lower amount of gluten would be preferable if the definition in Standard 1.2.7 is changed.
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.