By Joe Lederman, Managing Principal, FoodLegal This article is an edited version of a Speech delivered by FoodLegal’s Managing Principal Joe Lederman on 15 September 2009 to the Dairy Directions Conference organised by Dairy Australia and Dairy Innovations. The article highlights numerous regulatory issues and trends internationally and in Australia pertaining to fats and lipids, and the potential consequences and impacts on the dairy industry and other food industries. THE DIRECTION OF REGULATORY CHANGES FOR DAIRY FATS IN AUSTRALIA 15 September 2009 Ladies and Gentlemen, On 1st September 2009, the Federal Government’s Preventative Health Taskforce released Australia’s National Preventative Health Strategy. Part of this Health Strategy takes the Australian government further into the realm of telling Australians what they ought to be eating. The strategy, and the establishment of the Taskforce itself, is Australia’s own response to international moves that were initiated 5 years ago at the World Health Organization with the aim of addressing concerns about an epidemic of obesity and the consequent chronic health problems in developing countries – such as the growing prevalence of chronic heart disease, diabetes, and high blood pressure inducing strokes. Our food laws originated from concerns about food safety (such as preventing contamination from pathogens and chemical residues, or the excessive use of food additives or the use of dangerous substances in food). Our food laws and food standards are now being transformed with the purpose of becoming instruments for better preventative health outcomes. And so, this means governments have begun dictating what we must eat. A recent example is the mandatory fortification of bread now with folic acid, which became enforceable law last Sunday (13 September 2009) - even despite some real scientific concerns about the health downside for that particular mandatory fortification. Changes in food laws of governments, including international standards that are discussed by the international forum of the Codex Alimentarius Commission, are now being driven largely by research that is undertaken under the auspices of the World Health Organization. The international regulatory policy direction In May 2004, the international community endorsed the World Health Organization (WHO) Global Strategy on Diet, Physical Activity and Health. This obligated the WHO’s member States to develop national strategies to improve diet and physical activity and to draw up national dietary guidelines, and to take more proactive steps in their respective countries to impose greater regulation on food marketing, advertising, sponsorship, and promotion, as well as to improve systems of food labelling so as to reduce the prospect of misleading health claims for foods. It should be noted that even the breadth of the role of the World Health Organization has been extended from within the organization in recent years. Whereas, once upon a time, the WHO concentrated on preventative health measures to prevent communicable diseases, considerable resources of the organization are spent developing programs for government policies around the world aimed at reducing the incidence of non-communicable diseases such as coronary heart disease and the other obesity-related health consequences I have mentioned. While the World Health Organization and its impact on food regulatory policies in every country continues to grow, this also represents a major shift away from the dominance of the free market and free trade criteria in the development of food standards. Over the past decade or so, the Codex Alimentarius had become an instrument for implementation of free trade policies by the World Trade Organisation. By using the Codex Alimentarius standards as the benchmark for international standardisation and using the World Trade Organization dispute referral mechanism to bring into line countries whose food standards exceeded the Codex thresholds, the idea emerged that standardised national food standards could be set internationally to facilitate greater international trade. The development of a global strategic policy on diet and preventative health by WHO has not only reasserted the role of the WHO in food regulation but has coincided with a slowdown in international trade and signals a possible wind-back of the dominance of the WTO criteria in food standards development. The Australian regulatory policy directions New policies that are to be developed in the forum of the Codex Alimentarius Commission have the potential to impact in significant ways on fats in dairy because these policies will now include: Several clues to the way in which new government policies may well be implemented in Australia can be found in a list of recommendations appearing in a recent report issued in the name of the Inquiry of the House of Representatives Standing Committee on Health and Ageing into Obesity in Australia. This Report was tabled in June 2009 and was entitled “Weighing it up: Obesity in Australia”. The recommendations that the House of Representatives Report made for regulatory change to be implemented included the following recommendations: I intend in this presentation to discuss each of these recommendations, beginning first with the one that suggests government policies pushing in the direction of foods being reformulated. Reformulation Prescribing maximum fat levels in dairy foods One should note that the Australia New Zealand Food Standards Code already imposes some food composition requirements for many foods. For example, in the context of dairy, there are various prescriptive definitions in the food standards that actually specify the compositional and minimum fat requirements for particular foods such as that: - Butter must contain no less than 80.0% milk fat (Standard 2.5.5, Clause 2(1)); OR - Ice-cream must contain at least 10% milk fat. (Standard 2.5.6, Clause 2) Now you will note the irony that these prescriptive composition requirements set requirements for minimum – not maximum - milk fat content. This is because in the good old days, food standards were about protecting consumers by giving them the creamy quality they wanted and not allowing food companies to reformulate and water-down, or aerate or dilute the quality of a food below that which a consumer would expect in order to call the food “butter” or “ice-cream”. However, it would be just as easy for new food standards for any dairy food to impose a maximum fat level. Also, bear in mind that the food standard for milk already imposes a requirement that products sold as “skim milk” must contain not more than 1.5% milk fat. What steps should be considered by the dairy industry in light of all this? I suggest, first of all, the Australian dairy industry might need to consider becoming proactive in considering new definitions that will allow greater flexibility in the Food Standards Code, such as to avoid the prescriptive imposition of either minimums or maximums in any dairy food definition or compositional requirement. I now want to discuss the particular food composition issue of trans fat. Restricting trans fat Following a number of studies in the 1990s, including one co-authored by Australia’s own Dr Peter Clifton (who has since acquired more popular fame in Australia as a co-author of the CSIRO Diet), trans fatty acids were found to be a causative factor of higher blood LDLs (popularly known as ‘the bad cholesterol’). This follows on other studies of saturated fats as far back as the 1960s and 1970s (such as the ‘Finnish Mental Hospital Study’ 1979) which had focused on the effect of cholesterol-lowering diets in reducing heart disease. Australian approach to trans fat In Australia, there are currently no mandatory restrictions on the proportion of trans fat allowed in food. A group known as the Australia New Zealand Collaboration on Trans Fats was established in early 2007 with its membership comprised of representatives from the respective National Heart Foundations of Australia and New Zealand, the Dieticians Association of Australia, and the Australian and New Zealand food industry groups and government agencies, with a view to encouraging the reduction of trans fat in foods. Notwithstanding this objective, FSANZ’s own scientific review in May 2007 found that the contribution of trans fatty acids to energy intakes in Australia and New Zealand was already below the goal of 1% set by the World Health Organization and therefore trans fat did not require special attention in the food standards. Approach to trans fat in other countries Internationally, more proscriptive measures to eliminate trans fat from foods were taken such as the New York City ban on trans fat being present in foods sold by fast food outlets. This followed a range of different regulatory changes against trans fat in other countries such as Denmark, Canada and Argentina. The Codex approach to trans fat A series of studies were commissioned by the World Health Organization over the past few years and these were recently published in the European Journal of Clinical Nutrition, volume 63 (2009). One of these papers entitled ‘Approaches to removing trans fats from the food supply in industrialized and developing countries’ co-authored by Dr Mary L’Abbé, provides a thorough summary of various regulatory approaches of different industrialised and developing countries to remove trans fat. This paper also set out, in a table formula, a summary of all the recommendations made by a Canadian government trans fat taskforce for substitution of trans fatty acids with other oils or fats, sorted by the type of food applications, the characteristics required for the food, and the relative health benefit of each substitute substance. What is important for the dairy industry to take note of is that the Canadian report made repeated recommendations against the use of butter in its preferred recommendation on the choice of various substitute oils or fats and the table set out alternative fats and oils to be preferred instead. While this was happening, a study commissioned by the European Parliament’s Committee on the Environment, Public Health and Food Safety (ENVI) released in February 2009 found that there was a sufficient difference in the health effects of industrially-produced trans fat and natural dairy sourced trans fat, enough of a difference to push for the idea that any laws banning trans fat ought not be applied to the naturally-occurring trans fat. However, this ‘good news’ finding of the Europeans for dairy industry trans fat to be excluded from restricted regulation does not mean that the dairy industry has got itself off the hook in Europe or anywhere else, or not as yet! This is because the 32nd session of Codex Alimentarius, which met in July 2009, made a recommendation that trans fatty acid intake from all sources should be restricted to under 1% of total energy dietary intake. Given that the Codex Alimentarius recommendation will lead to an international standard, it is important that the Australian dairy industry consider whether it may find itself bound, scientifically and legally, to reduce the total trans fat of Australian dairy products including the natural trans fat content of dairy products. Food Labelling The National Preventative Health Strategy Report, which I mentioned was issued on 1st September 2009, has recommended the concept of introducing a new national system for food labelling to support healthier choices. Whatever new labelling system is chosen, it is desired that it be more simple than the current labelling information system but that it provide more comprehensive information on trans fats and saturated fats as well as about the sugar and salt content, and that the new system standardize serve sizes. These recommendations want the information to be available not only for food for retail sale but also in relation to food purchased when eating out, and that all the information be publicly available even in settings such as restaurants, food halls and takeaway shops. There is currently an ongoing debate being conducted in Australia and in the UK and elsewhere, about the choices to be made for a new streamlined food labelling system for making consumer choices of better foods easier. Notwithstanding the attempt by the Australian Food and Grocery Council (AFGC) to introduce a pre-emptive labelling scheme based on percentage daily intakes for particular nutrients (commonly referred to as the “thumbnails” on a Kellogg’s cereal pack), the market researchers and consumer advocates favouring a “traffic light” system may already have got the upper hand with their campaign publicizing supportive research and a political clout from the support of consumer groups around the world. All food industries need to consider the consequences of a traffic light system of nutrition labelling, if this system were to gain a preference by government regulation over other industry-supported labelling schemes to promote healthier food choices. However, in readying itself, the Food industry ought to make governments more aware that, first of all, not all fats are bad and secondly, that in any rating scoring systems to measure nutrients such as fats, there ought to be a possible recognition of the additional scientific-based health differences between different types of fats. Furthermore, governments need to understand that a holistic approach to the food is also vital. Even if there is fat in a food, one needs to consider the whole food and not just the reductionist scientific approach that calls a dairy food a mixture of calcium with fats or a water-based emulsion. Advertising restrictions In relation to advertising foods to children, we already have some broadcasting restrictions as well as several voluntary codes of practice. The AFGC again sought to pre-empt the issue by introducing in early 2009 its voluntary Responsible Children’s Marketing Initiative scheme. By June 2009, the AFGC announced that 16 major food and beverage manufacturers had signed up to its scheme by which the companies publicly committed not to advertise to children aged under 12, unless the food product was one that promoted healthy dietary choices and a healthy lifestyle consistent with scientific standards. This AFGC scheme offered a mildly tougher approach than the existing voluntary Code of Practice of the Australian Association of National Advertisers. However, the Obesity Working Group of the National Preventative Health Strategy has been pushing for a blanket ban on all “energy rich, nutrient poor” food and beverage advertising before 9pm. Industry needs to be looking at all alternative marketing opportunities that do not breach the recommendations of the National Preventative Health Strategy and ought to consider how best the companies can play a leading role in implementing the National Preventative Health Strategy recommendations. Governments want to encourage more physical activity and physical education for children. There is a role that industry could play in this - with new ways for interacting with a wider cross-section of local communities beyond the supermarket and beyond the farm gate. Maybe, the dairy industry could link up with under-nourished or under-resourced social groups or connecting with young people who are disconnected and eating badly? Would it not be good to consider making it ‘cool’ to eat nutritious dairy foods as an alterative to drinking alcohol illegally? Other marketing restrictions In the ongoing saga of the development of a Health Claims Standard for foods in Australia under FSANZ proposal P293, there have been attempts in several of the drafts of the proposed Health Claims Standard to discriminate either for or against dairy products. There seems to be a difference of opinion amongst the regulators as to which direction to take in relation to dairy foods, and whether to treat cheese products as being the equivalent of energy dense foods that are to be penalised in a scoring system defining ineligibility to make a health claim or alternatively as a category which will not be discriminated against. The same issue arises in the context of milk being compared with water-based beverages rather than as a special category of more energy dense but nutritious liquid food. Taxation changes The Obesity Working Group of the National Preventative Health Strategy report also contained recommendations for taxing energy dense foods. The Henry inquiry into Federal taxation undoubtedly will also be reviewing this area and considering opportunities of a debt-ridden Federal government to raise more revenue from new sources. Governments are always seeking revenue but any attempt to impose a tax on the basis of nutrient density is fraught with political risk for its proponents. We’ve been through this before when the Goods and Services Tax was introduced and some exemptions were granted for whole foods or better healthier food options. Yet, any government that wishes to impose higher taxes on ice cream or chocolates will do so at its own peril. It is also difficult for governments to claim the moral high ground by discriminating against particular types of fats as bad fats because, first of all, the science has not been completely proven in many respects, and secondly any discrimination between fats will create a cumbersome and inefficient taxation system or will encourage avoidance by reformulation that does not necessarily mean healthier food. For example, in recent times, manufacturers of alcopops switched from drinks based on spirits to drinks based on beer to avoid the alcopops tax. In the 17th and 18th centuries, governments taxed glass windows which led to people avoiding the tax by bricking up their window spaces. A lot of good that did! Ironically, governments are now considering tax rebates around the world to encourage more solar-friendly houses with more windows! Finally, if governments want to tax people to change their diets, the analogy to discouragement of cigarette smokers should fall flat. And let’s remember the American Revolution began with the imposition of a tax on tea... Government subsidies and incentives The National Preventative Health Strategy report contained recommendations for governments to subsidize transportation of more fresh food to remote areas and to poorer socio-economic groups. Might this not be an opportunity to improve the cold supply chain for fresh products reaching more in remote areas or stimulate ways to improve distribution networks? Involvement in community-based programs could be a win-win situation for local communities, food companies and governments if these initiatives are financially negotiated with the right people in the right places. Some Observations I would like to conclude with some observations. In my experience as a food lawyer over a period of time, it has become obvious to me that our law-makers have a difficulty keeping up with science and the scientific consensus is always developing and changing. When it comes to fats and the dairy industry in particular, the goal posts seem to keep shifting. For example, 20 years ago, all cholesterol was considered bad. Yet, now we know what we didn’t know, and that is that we now know that there is a difference between different serum lipoproteins, that there is the so-called ‘good cholesterol’ high-density lipoprotein (HDL) blood serum and there is the ‘bad cholesterol’ known as low-density lipoprotein (LDL). Furthermore, another example of what we didn’t know was the actual knowledge that created the trans fat problem. History demonstrates that the food manufacturers were being encouraged down the route of producing food using trans fat because it was considered that this was the best way of using a monounsaturated fat, and the prevailing scientific view that this was a healthier option than saturated fat. It turned out that the process of hydrogenation of an unsaturated fat created the problem of trans fat, which was worse than the saturated fat that it had replaced in the processed foods. As governments now seek to discourage consumption of so-called bad fats, there will be choices that need to be made by governments to discriminate. How do we discriminate between the fats being good or bad? For example, does the law draw sufficient distinction between one type of monounsaturated oil that is consumed without cooking as against another monounsaturated product that has been heavily processed if the science shows that the so-called healthier product was actually more harmful than a saturated fat alternative? There are lots of other policy issues to be considered that may be relevant. For example: Should laws discriminate some fats from sugars even though they are all providing energy? Furthermore, does the law need to equate all sugars or should it draw distinctions between some types of sugars and others? If governments intend to impose taxes on energy-rich foods, will governments subsidise poor people to get their energy needs from elsewhere? If governments are telling people what to eat, have consumers lost their right to free choice? And, should any laws be introduced that ignore the need for consumer responsibility? And here is what I’m going to call the “dark chocolate conundrum”: Dark chocolate and raw chocolate have recently acquired a positive reputation for a healthy effect on the heart. This is possibly because cocoa powder is rich in polyphenols and these have been associated with a reduction of lipid peroxidation. There is also a scientific view that some saturated fats may not have the same adverse impact as other saturated fats. It is known that dark chocolate (even without milk) is comprised predominantly of saturated fat. The question that must be asked is whether the heart health beneficial effect of dark chocolate is attributable to a combination of the saturated fat with other components of the total food? Some scientists are now suggesting the good healthy heart result may be partially attributable to the particular form of saturated fat (in the form of the stearic acid in chocolate) having some special nutrient qualities or molecular structure and effect that distinguishes it from other saturated fats. This raises other very important questions: Should a food standard discriminate against all saturated fats as if they were one and the same? Should Labelling laws be allowed to discriminate against all saturated fats as if they are all the same? I conclude by pointing out that if any new food standard is introduced on the basis of incomplete science or for the wrong reason, there may well be an avenue for a legal challenge. If a food standard can be shown to be unreasonable or illogical or irrational or lacking a basis in findings or inferences of fact, a legal challenge might well have a good prospect for overturning bad law. This might be the case if there has been a misconception as to what is a bad fat. Further to this speech, please see related article "Food producers must confront National Health Preventative Strategy" in the September 2009 issue of FoodLegal Bulletin
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, October 2009
Sofitel, Collins St, Melbourne
Healthy Directions for Dairy
FoodLegal Consultancy
www.foodlegal.com.au