Health claims can be either general-level or high-level, with different requirements for each
State and territory governments in Australia are responsible for compliance with the Food Standards Code
The Federal Court recently ruled against Heinz for making a misleading health claim
In Australia, manufacturers may voluntarily use two types of nutrition claims on their products: nutrient content claims and health claims.1
Nutrient content claims such as ‘low in fat’ or ‘good source of calcium’ must meet certain criteria set out in the Food Standards Code2 – for example a product claimed to be a ‘good source of calcium’ must contain at least the amount of calcium specified in the Code.1 Nutrition content claims are commonly used as a marketing tactic to increase a product’s appeal to consumers, but do not necessarily signify a healthier choice overall – for example, a product which is ‘low in saturated fat’ could be high in sugars.
Health claims refer to a relationship between a food and health, rather than simply a statement of content. There are two types, each of which have their own requirements for display set out in the Code:
- General-level health claims link the food, or a nutrient or substance in the food, with an effect on health. For example, ‘protein helps increase feelings of fullness’ or ‘nuts contribute to heart health’.3 Food manufacturers can base their claims on more than 200 pre-approved general-level health claims. Alternatively, food manufacturers can establish a new general-level health claim by following detailed requirements set out in the Code, including conducting a systematic review and notifying Food Standards Australia New Zealand.4
- High-level health claims link a nutrient or substance in the food to a serious disease or a biomarker of a serious disease. For example, ‘Diets high in calcium may reduce the risk of osteoporosis in people 65 years and over’ or ‘Phytosterols may reduce blood cholesterol’.1 There are 13 pre-approved high-level health claims set out in the Code with various restrictions on how they can be used. For example, the claim that a ‘diet containing a high amount of both fruit and vegetables reduces the risk of coronary heart disease’ cannot be used on fruit or vegetable juices, and only on foods that contain at least 90% fruit or vegetable by weight.5 FSANZ has a High Level Health Claims Committee that considers applications for health claims.6
Compliance with the Food Standards Code is the responsibility of state and territory governments in Australia, rather than FSANZ.7 The Public Health Association of Australia (PHAA) has argued that a ‘passive’ system of enforcement puts the onus for making complaints onto interested public health agencies and consumers, who do not have the capacity to systematically monitor and report breaches.8 The PHAA has argued that surveillance of food labels regarding compliance with the Code should be enhanced considerably, including via a dedicated monitoring and enforcement program.
In addition to complying with the Food Standards Code, fair trading laws in Australia require that food labels do not misinform consumers through false, misleading or deceptive representations. The Australian Competition and Consumer Commission (ACCC) is responsible for enforcing competition and consumer protection laws. In a recent example, the ACCC prosecuted a case in the Federal Court against H.J Heinz Company Australia Ltd (Heinz) for making a misleading health claim that its Little Kids Shredz products were a healthy and nutritious food for toddlers.9 The ACCC action followed a complaint by the Obesity Policy Coalition about the products, which had pictures of fruit and vegetables on the packaging together with statements such as ‘99% fruit and veg’ – when in fact the products were predominantly made from fruit juice, fruit concentrate, fruit paste or fruit puree and therefore contained more than 60% sugar and were high in energy and low in fibre.
In its judgement delivered in March 2018, the Federal Court found that Heinz made a false and misleading representation in the marketing this food to toddlers, specifically the claim that Shredz were beneficial to the health of children aged 1–3 years. Having established that the product packaging conveyed a representation that the products were a nutritious food and beneficial for the health of toddlers, the court determined that this was not the case due to the high levels of sugar they contained.10 In making this assessment, the Judge relied on two main grounds: he accepted the detrimental effects of sugar and found that consumption of that amount of sugar in a single snack could not be beneficial to the health of a child; and he accepted that dental caries were a major problem in children and a product of this type was not beneficial to dental health. In August 2018, the Federal Court ordered Heinz to pay penalties totalling $2.25 million for making a misleading health claim.11