The prevalence of ‘no added sugar’ claims on food labels has led Food Standards Australia New Zealand (FSANZ) to make some key changes to the Food Standards Code, aimed at ensuring consumers are well informed about the sugar content of food products they purchase.

Late last year, FSANZ (through FSANZ Proposal P1062) amended the definition of what actually is an ‘added sugar’… but only for when making voluntary ‘no added sugar’ marketing claims. Quite separately to Proposal P1062, FSANZ is also exploring introducing mandatory Nutrition Information Panel (NIP) labelling of ‘added sugar’ through FSANZ Proposal P1058. This article explores how these two different regulatory changes may conflict with each other and queries whether FSANZ’s staggered approach in addressing ‘added sugars’ is achieving its desired outcome of assisting consumers to make more informed and healthier choices.

Why has FSANZ chosen to introduce these two regulatory changes separately?

The Administrative Report for the amendment to the definition of ‘added sugars’ for the purposes of making voluntary ‘no added sugar’ claims was published by FSANZ on 22 August 2023. This was over a year after the Administrative Report for P1058 (listing ‘added sugars’ in the NIP) was published.

So why was this work done separately and not rolled together? In the Approval Report for P1062, FSANZ repeatedly stated that this work was ‘staggered’ and referenced certain challenges presented by the separate project in P1058:

In July 2023, FSANZ provided an update to the Food Ministers’ Meeting (FMM) about its assessment to date of P105812. The assessment identified complexities and challenges which indicate the proposal may not achieve the desired policy outcome. Ministers discussed alternative approaches to stage the delivery of this work, including the option of incorporating a definition of added sugars in the Code that aligned with dietary guidelines and then, through appropriate consumer testing, considering whether and how best to incorporate added sugars information in the NIP. Ministers also agreed to FSANZ undertaking consumer research on alternative labelling approaches to providing contextual information in addition to consumer testing added sugars in the NIP. FSANZ is progressing the consumer testing and research work under P1058 and expects to complete this in 2024. FSANZ intends to review the outcomes from P1062 in light of its assessment and findings in Proposal P1058, including its consideration of the consumer evidence available at that time.[1]

The fact that Proposal P1062 was started after P1058 and completed first is testament to FSANZ’s decision in this instance. FSANZ has further indicated that the transition period to amend labels to comply with the new requirements for “no added sugar” claims was set so as to align with potential future changes under Proposal P1058 (among others).

However, it is clear that this staggered approach has had unintended consequences, in particular how a conservative definition of “added sugars” for the purposes of a voluntary marketing claim cannot possibly completely align with a future definition of ‘added sugars’ for mandatory inclusion in the NIP. As FSANZ itself summarised:

Stakeholders had diverse views about particular aspects of the proposed approach and generally were not supportive. A key issue raised by all stakeholder groups was the interrelationship of P1062 with P1058 and the potential for the approach under P1062 to have implications for P1058, especially in relation to the definition of ‘added sugars’.[2]

Changes to requirements for voluntary ‘no added sugar’ claims

In the submissions to FSANZ on Proposal P1068, there was a clear battle between health advocates and the food industry.  Health advocates wanted to broaden the definition ‘added sugars’ to stop products containing high levels of sugar from claiming ‘no added sugar’; whereas industry wanted to ensure consumers could still distinguish between refined sugars and naturally-occurring sugars (i.e. the very point of making a ‘no added sugar’ claim):

Most industry submitters supported the proposed approach based on the addition of ingredients but did not support inclusion of the list of fruit ingredients in the conditions. Submitters noted fruit juice and dried fruits were core foods in the Australian Dietary Guidelines and are used for reasons beyond sweetness such as colour, texture and flavour. They considered the inclusion of fruit ingredients would not allow differentiation between products with fruit ingredients and products with fruit ingredients plus added sugars, potentially confusing consumers and not supporting informed choice.[3]

It would be fair to say the health advocates won, in particular on the contentious decision to prohibit ‘no added sugar’ claims on products which exceed a certain sugar threshold, regardless as to whether those sugars were added or not. For the sake of completeness, these thresholds are now:

• 10.0g/100g for solid food
• 7.5g/100 mL for liquid food

FSANZ was met with criticism by industry stakeholders, arguing that fruit juice and dried fruit are whole/core foods in dietary guidelines and contribute beneficial nutrients. Yet many of these foods will be precluded from making these ‘no added sugar’ claims. For instance, many fruit bars and fruit ball snacks comprised of dried fruit and fruit pieces will not qualify to make a  ‘no-added sugar’ claim because of their high natural sugar content, where they otherwise could have distinguished their product from other products on the market that add cheaper refined sugars, glucose syrups and artificial ingredients (which largely also lack fibre and micronutrients), but still fell below these thresholds.

How can this definition of ‘added sugars’ possibly apply to mandatory NIP listing

While the details are not finalised, P1058 is expected to mandate displaying the amount of added sugar separately in the NIP, which will likely be alongside the total sugar content and potentially the amount of naturally occurring sugars.

However, differentiating between naturally occurring sugars in fruits and added sugar can be challenging. Even if single ingredient fruit juices and purees were allowed to make these claims, manufacturers sometimes add concentrated fruit juices or purees, as opposed to chopped fruit. This can blur the lines and make it tricky for consumers to accurately assess sugar content which could potentially mislead them.

With the conservative approach taken by FSANZ in Proposal P1062, if that same definition of added sugar were applied to foods above the prescribed thresholds of total sugar content, then either:

• Foods with high levels of naturally-occurring sugars would have to declare themselves as 100% added sugar in the NIP; or
• More likely, these foods would have to declare that they have no added sugars… but would still be banned from telling consumers this fact.

Whilst the Approval Report P1062 states that there will be coherence between these two proposals, P1058 is still in the process of determining how ‘no added sugar’ would best be defined or presented, for the purposes of NIP labelling. Therefore, it is still unclear how compatible these regulatory changes are with each other, creating ambiguity for food manufacturers.

And that’s assuming that the work scheduled for P1058 is actually completed within the transition time for everything to be re-labelled in compliance with P1062 …

If you have any questions about these amendments under development and how they may apply to you, please contact our Food & Beverage team to discuss either via our dedicated email address (food@khq.com.au) or call us on (03) 9663 9877.

[1] Food Standards Australia New Zealand, Approval report – Proposal P1062, Page 8

[2] Food Standards Australia New Zealand, Approval report – Proposal P1062, Page 13

[3] Food Standards Australia New Zealand, Approval report – Proposal P1062, Page 13