In the US, the definition of healthy food is changing – how does this compare to Australia?
In September 2022, the United States Food and Drug Administration (FDA) proposed updating the nutritional criteria that apply when a food product wants to claim to be “healthy”, with the stated objective of encouraging US consumers to eat healthier food and – by extension – reduce incidence of chronic illness. This article considers how that proposed criteria aligns or differs with Australian regulations as to when a food product can claim to be “healthy”.
What are the proposed U.S. changes?
Nutritional science has come a long way since 1994, when the FDA first introduced the nutritional criteria for “healthy” food. The current proposal is an update of existing regulations which previously imposed limits on fat, saturated fat, cholesterol and sodium as well as minimum quantities of Vitamin A, Vitamin C, calcium, iron, protein and fibre before a food was eligible to claim to be “healthy”.
Why the change? Part of the problem with the existing approach is that – by applying a whole of diet paradigm to individual foods – many foods which nutritional science wishes to encourage were not eligible to claim to be “healthy”. For example, some whole raw fruits and vegetables did not meet the nutritional criteria and therefore could not be described as “healthy”. Furthermore, the focus on total fats ended up punishing some products that were naturally high in “healthier” unsaturated fatty acids.
As a result, the most significant change put forward by the proposal is a whole of diet approach (“emphasise healthy dietary patterns”) rather than focusing on individual nutrients.
The new approach requires a “healthy” food to contain a certain amount of ingredients from a recommended food group (namely vegetables, fruits, grains but at least half wholegrain, dairy, protein and oils) in addition to minimum nutritional profiles. In addition, added sugars are added as a negative weight on the nutritional criteria.
As an addition to changing the criteria, the FDA has announced that it is exploring introducing a front of pack visual representation of the “healthy” claim.
How does this compare with Australia?
The best point of comparison in Australian is the Nutrient Profiling Scoring Criterion (NPSC), introduced into the Australia New Zealand Food Standards Code as part of Standard 1.2.7 in 2013. The NPSC is the criterion that can apply (but not always) when a food product wishes to make a “health claim”.
In some ways, the new proposed FDA criteria is very similar to the NPSC. The NPSC is a pass/fail binary and, in assessing any individual product against the NPSC, it punishes food products for their energy, saturated fat, sugar and sodium content and rewards products for their protein, fibre and fruit and vegetable content.
Like the new FDA approach, the NPSC does not punish total fat and instead focuses on saturated fat (but leaves trans fats on the table). By way of contrast, the NPSC punishes total sugar content, rather than focusing on added sugar.
However, the biggest differences the new FDA approach takes when compared to the NPSC are that the FDA approach:
- sets minimum food group content and thus arguably encourages consumption of nutrient dense foods in a way that the NPSC does not; and
- sets its nutritional criteria differently depending on the food group from which the product comes.
The FDA approach reflects current nutritional science in a way that the NPSC fails to do. The NPSC sets its nutritional criteria for only three different categories of product: beverages, oil-based products such as cheese, butter, etc, and then everything else. This means that the same nutritional criteria apply to raw vegetables as to muesli bars or chocolate or potato chips or pasta or … I could go on. This lack of nuance in applying the NPSC to individual food groups means that some clearly unhealthy foods pass the criterion while some healthy foods do not, similar to the position the previous US framework found itself in.
In other words, the NPSC continues to broadly apply a whole of diet paradigm to individual foods, rather than encouraging better dietary patterns. By way of further contrast, the voluntary health star rating system (Australia’s own front-of-pack graphic to encourage healthier eating) includes far more food categories and gradations in scale than the legislated NPSC.
The Australian authorities would do well to follow the current approach being considered in the US.
Distinguishing between “healthy” claims and “health” claims in Australia
It is worth noting that, in Australia, the NPSC only applies when making a “health claim”, and not necessarily when claiming that a food product is “healthy”. While it would make sense to consider a “healthy” claim to be inherently a “health claim”, the legal definition of a “health claim” is a lot more limited than its name suggests.
For the NPSC to apply, a food product must imply that it has a “health effect”. A “health effect” is defined as:
an effect on the human body, including an effect on one or more of the following:
(a) a biochemical process or outcome;
(b) a physiological process or outcome;
(c) a functional process or outcome;
(d) growth and development;
(e) physical performance;
(f) mental performance;
(g) a disease, disorder or condition.
Does the claim “healthy” by itself actually imply a health effect on the human body? If so… what is it? What is the physical performance or biochemical outcome of a consuming a “healthy” food? What does the word “healthy” mean in and of itself?
The limit of the legal definition of a “health claim” was explored in the New Zealand Court of Appeal case in 2016 between the New Zealand Ministry of Primary Industries (the NZMPI) and the owner of the “Manuka Doctor” honey brand. In that case, the NZMPI was refusing to grant an export licence due to th “Manuka Doctor” trademark being a non-compliant health claim on behalf of the product. However, the Court of Appeal found that while the trademark “Manuka Doctor” implied “healthiness”, it did not imply a precise health effect.
As a result, it could be argued that in Australia no prescribed criteria apply to food products that claim to be “healthy” without implying a precise health benefit. However, consumer protection laws also apply, and therefore products must not represent “healthy” (or other) claims which are misleading or deceptive in breach of those laws (as famously happened when the ACCC successfully prosecuted Heinz Shredz for misleading consumers from 2006 to 2018 that a high sugar product was healthy).
Therefore, any food product wishing to claim to be “healthy” in Australia without meeting the NPSC ought to:
(a) avoid any other claims which could imply a precise health effect; and
(b) have some substantiation evidence as to how they are “healthy”.
It is worth noting that when Grill’d burgers was repeatedly assessed by AdStandards in 2021 for including “healthy” in their tag line, one of their proof points that the claim was not misleading was that many of their products actually met the NPSC.
