Why is caffeine regulated more strictly than alcohol in Australia?
By Charles Fisher
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, October 2013
In the wake of the August 2013 Food Regulation Policy Options Paper released by the Food Regulation Standing Committee examining the regulation of caffeine in foods, it is time to take a good hard look at how caffeine in food is regulated in Australia. Is the regulation of caffeine in food and beverages in Australia likely to get stricter? This article examines some of the important issues and implications that need to be considered with care by policy-makers and regulators.
The Regulatory Options Paper
The Food Regulation Forum (the Forum) is a collection of ministers (from mainly health and primary industry portfolios) from the various jurisdictions of our bi-national food law system. The Forum sets policy to be followed by the creators of food regulation in Australia and New Zealand (mainly Food Standards Australia New Zealand – FSANZ) or by the enforcers of the regulation (the food authority in each State and Territory and New Zealand).
In this role, the Forum released a policy guideline on the addition of caffeine to foods in 2003. Recently, the Ministerial Council has decided to review this policy guideline out of community concern that caffeine consumption is increasing in Australia. Part of this review process is the development and release of the Food Regulation Policy Options Paper on the Regulation of Caffeine in Foods (the Policy Options Paper) by the Food Regulation Standing Committee (FRSC).
It is possible for any interested party to make a submission on this Policy Options Paper by 18 October 2013. FoodLegal strongly recommends that stakeholders do so, for the reasons discussed herein. FoodLegal will be submitting this article to the Food Regulation Secretariat as part of a call for reasonable and effective regulation of the food industry.
How caffeine is regulated in Australia
Currently, caffeine is regulated as a food additive in Australia. This is despite the fact that caffeine is more commonly added to food products for its stimulating effect on the human body than it is for its technological function in the food product. By defining caffeine as a food additive, Australia regulations effectively ban the addition of caffeine to all food products except kola drinks and energy drinks. This has been the intention of the current regulations for caffeine, as acknowledged in the existing Policy Guideline.
However, this very strict set of permissions for the addition of caffeine to food has not slowed the increase of consumption of caffeine, nor the increase in sales of caffeinated products nor the increase in types of product that contain caffeine. Although the effect of these regulations is to prohibit the addition of caffeine to products such as corn chips or chewing gum, such products appear to have entered the Australian market due to gaps in both the Policy Guideline and in the existing regulation.
This is what appears to have prompted the Forum to reconsider the Policy Guideline: the fact that caffeine consumption is increasing notwithstanding the very strict limitations placed on it.
How the addition of caffeine is regulated overseas
While the Regulation Options Paper is correct in saying that other overseas jurisdictions also regulate caffeine as a food additive, it would be more accurate to say that it is regulated as a flavouring. Caffeine has GRAS approval as a flavouring in the US and is specifically listed as a flavouring in the EU. This results in a significant difference in regulation between Australia and these other jurisdictions, namely: many food products allowed to have flavourings are allowed to have caffeine added to them.
This is a far more lenient policy approach than the limitation to two solitary categories permitted for caffeination of foods and beverages in Australia. These jurisdictions do place additional burdens on products containing high amounts of caffeine. But these are generally labelling obligations informing the consumer as to the presence of caffeine.
In October 2011, Health Canada published a change in approach to regulating caffeine in energy drinks. The Canadian change in approach – yet to be implemented at the time of publication of this article – is to place a limit of 400mg/L of caffeine in energy drinks. Yet the Australian limit that has existed for 12 years is already 80mg/L less than this proposed change to Canadian law.
Likely outcomes of changes to policy
The Policy Options Paper recommends changing the Policy Guideline to express the following principle: that regulations should manage risks to vulnerable population groups such as children, adolescents, pregnant women and caffeine sensitive consumers.
First of all, the practical consequences of this on regulation or on industry are not very significant. This is a Policy Guideline, intended to help FSANZ in the development of the regulations contained in the Australia New Zealand Food Standards Code. It is not law. But it could be the beginning of what could become law.
Should FSANZ be forced to react to the Forum’s concern over caffeine consumption increase, FSANZ is only empowered by its enabling legislation to create or amend standards in the Food Standards Code. Even though industry and regulatoryand other stakeholders would be consulted over any proposed change to actual regulations, amending . the Food Standards Code is often not the most effective way to address a policy concern in the food space. Furthermore, amending the Food Standards Code is a time-consuming process.
Therefore, any practical consequences from amending the Policy Guideline may not come about for some years.
But if the actual regulations around use of caffeine in food were to be tightened, how could FSANZ do it? The addition of caffeine is already far stricter than most other modern Western jurisdictions.
Moreover, it is would be highly unlikely for FSANZ to get away with restricting foods that naturally contain caffeine, like coffee. In fact, most of the increase in caffeine consumption is not due to caffeinated corn chips or chewing gum or even energy drinks but rather is caused by a significant increase in coffee consumption. Both the Policy Options Paper and a study conducted by the Australiana Beverages Council show that the majority of Australian caffeine consumption comes from coffee (with energy drinks only accounting for 5% of total caffeine consumption, the same as chocolate). In fact, the Policy Options Paper noted that some espresso shots of coffee contain far more caffeine by volume than most other caffeinated products.
Given that regulation restricting the average Australian’s coffee intake is unlikely, all that is left to “manage risks to vulnerable population groups” would be labelling. Products that contain more than a certain amount of caffeine could be forced to declare their caffeine content and include warnings for vulnerable population groups.
Such labelling requirements could be seen as overkill considering most consumers are aware that coffee contains caffeine. For the novel caffeine-containing products (such as the chewing gums and corn chips), the caffeine content is the marketing distinction of the product and so would be already prominently displayed on the packaging. In short, consumers already know how much caffeine they are consuming. What they do not know are the potential adverse health effects.
It is not as if Australian consumers are being tricked into consuming more caffeine; they are just choosing to do so. Therefore to have any effect on caffeine consumption, resources ought to be invested in research, monitoring and education; not regulation.
Comparing regulation of caffeine and alcohol
If such labelling regulations were to be created, the labelling burden on caffeine would strongly resemble that of another naturally-occurring chemical: alcohol. When alcohol is present in any food (solid or liquid) above a certain amount, the food must declare its alcoholic content. For example, many fermented sauces such as soy sauce or rice vinegar have to declare their alcohol content.
But, unlike caffeine, alcohol can be added to any food product whatsoever. That food product then becomes re-classified as an alcoholic drink or a mixed food. There may be some exceptions to which products can have alcohol added to them (such as an electrolyte drink), but unlike caffeine these products are the exception rather than the rule. On the whole, alcohol could be added to almost any food product so long as the label declares its presence.
Given that alcohol arguably presents much more of a health risk than caffeine, one can only wonder why Australian consumers are trusted to drink as much alcohol as they want but not caffeine.
This article is not advocating that caffeine should not be the subject of further regulation. However, it seems odd that caffeine might be the subject of stricter regulation when it is already far more limited in its fortification permissions than alcohol.
The Policy Options Paper itself stipulates that the increase in caffeine consumption is mainly as a result of increase in coffee consumption. If the increase is not being caused by the increase in range of products containing caffeine, why are Australian manufacturers and Australian consumers being denied the choice of products that are available to them in the US, in Canada, in England, in Germany, even in New Zealand.
A call for effective regulation
One naturally-occurring chemical can be added to food products in almost limitless quantities so long as its presence is communicated on the label. This substance is alcohol, whose adverse health consequences are well-documented.
The other naturally occuring chemical is very limited in its permissions to be added to food but is able to be purchased anywhere by anyone in almost limitless quantities so long as the product is a “traditional” one such as coffee, tea or chocolate. This substance is caffeine. The few known adverse health consequences of caffeine are also well-documented and significantly less worrisome than those associated with alcohol.
Current regulation is not slowing caffeine consumption. Any tightening of regulation (unless it restricts coffee consumption) will also unlikely impact of caffeine consumption. So why are Australian regulations denying industry and consumers choices that most other modern countries are allowed to make?
If Australian regulations do change to require mandatory caffeine content labelling, the regulations ought to further change to align Australian laws with international laws and allow the wide fortification of food products with caffeine (within prescribed safe levels of course). So long as consumers are aware it is there, they should be able to choose to consume it. If this choice is being made too often to the point of having adverse health consequences, then consumers must be educated. As is apparent, restricting the form in which caffeine is delivered to consumers is not reducing the amount of caffeine they are consuming.
If the regulations were changed to allow broad fortification but mandatory labelling of caffeine, the changes would reflect the relative impacts of caffeine when compared to alcohol.
For discussion on the future regulation of biologically active substances and health claims, come to our Morning Symposium on Tuesday 12 November 2013: Food Health Claims Substantiation and Enforcement Issues. This symposium will feature top speakers from government regulators and a panel of experts who will answer questions from the floor. One speaker, Dr Anne Astin - Chairperson of the Food Regulation Implementation Sub-Committee, will speak on implementing national food standards and government nutritional policy frameworks. Registration forms are available here.
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.