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Allens Arthur Robinson

Food Update – August 2003

Welcome to Allens update on food legislation, policy, news and cases.

Feature article: Is fast food the new tobacco?

In brief: Australian food manufacturers and distributors could find themselves facing large-scale litigation from people alleging that unhealthy food is the cause of their obesity. Partner Peter O'Donahoo (view CV) and Articled Clerks Andrew Stumer and Tami Dower report.

Introduction

Recent cases in the US have raised fears that fast food operators may face a fresh wave of 'tobacco-style' mass litigation. Class action lawyers in the US - led by former tobacco litigator John Banzhaf - are preparing their legal artillery for multi-million dollar law suits against major food chains. The claims, which try to lay blame on fast-food manufacturers for obesity, could potentially be fuelled by new research on the alleged 'addictive' qualities of fats and sugars.

The recent focus on this issue raises two significant questions.

  1. What exactly has the research said about addiction to fats and sugars?
  2. How have manufacturers and government responded to the issue?

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The research: fat and sugar as addictive as drugs?

The February 2003 edition of New Scientist reported on two strands of experimental research that probed the bio-chemical and physiological responses caused by consumption of fats and sugars.

(a) Fats and hormones

The first set of experiments, conducted by scientists in New York City, studied the impact of a high-fat diet on hormones associated with weight control and appetite. Laboratory tests showed that rats fed a high-fat diet lost almost all of their ability to respond to the hormone leptin (which sends signals to the brain indicating the status of the body's fat reserves), causing the rats to keep on eating well after consuming a normal quantity of food.

Extrapolated to humans, the results suggest that people who eat large amounts of high-fat food become desensitised to leptin. Thereafter, an abnormally large concentration of leptin is required to produce a feeling of satiety, leading to an increased tendency to overeat.

b) Sugar and addiction

The second series of studies focused on the impact of large doses of sugar on the reward centres of the brain. Activities such as eating, sex and strenuous exercise trigger the release of endorphins and enkephalins, the brain's natural opioids, giving a feeling of reward or well-being.

Research by John Hoebel, a psychologist at Princeton University in New Jersey, suggests that eating large amounts of sugar produces a reward response capable of leading to addiction. Hoebel fed rats a diet containing 25 per cent sugar and observed that when the sugar was removed the rats exhibited symptoms such as chattering teeth and shaking, similar to those experienced by people suffering from nicotine or heroin withdrawal. Hoebel concluded: 'The brain is getting addicted to its own opioids as it would morphine or heroine. Drugs give a bigger effect, but it is essentially the same process'.

The outcome of both sets of research seems to be that while a diet that is high in fats and sugars may be habit forming, the effect is not nearly as pronounced as that produced by for example, certain illicit drugs.

At one level, the research merely provides a scientific explanation for well-recognised truths – that people who have a high-fat diet are more likely to become overweight, and that eating sugary foods is pleasurable'.

At another level it shows that the addictive qualities of fast food may be more real and more potent than previously thought, a factor that will no doubt loom large in any litigation against food suppliers.

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Industry responses: 'Would you like fruit with that'?

Some food suppliers are taking positive steps to address and allay public concerns about the foods they distribute.

Kraft Foods, the largest food company in the US, recently announced plans to create a global council of advisers drawn from experts in obesity, nutrition, physical activity and public health to establish guidelines for portion size and nutritional content.

McDonald's in the US is testing a Happy Meal with an option to replace french fries with a bag of fresh, sliced fruit. Consumers will also have the option to substitute fruit juice for soft drinks. In Australia, McDonald's has undertaken a massive campaign aimed at promoting the precise nutritional content of all its meals.

McDonald's and the Frito-Lay division of PepsiCo have announced plans to remove saturated fats and trans fatty acids from french fries, chips and other products in response to concerns about their link to high cholesterol, heart disease and diabetes. In addition, the CEO of PepsiCo has stated that at least half of its new foods and beverages will be aimed at nutrition-conscious consumers.

Kellogg is to expand its product lines, announcing its purchase of Kashi, whose organic cereal line has no highly refined sugars or preservatives.

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US regulatory response: trimming trans fat

On July 9 2003, after more than a decade of debate, the Food and Drug Administration announced that it would require food processors to include the amount of artery-clogging trans fatty acids on nutrition labels. The new requirement takes effect in 2006. Trans fats are created when hydrogen is added to vegetable oil, solidifying it and increasing the shelf life of products. They were introduced in the 1980s as a substitute for unhealthy saturated fats, but it is now believed that they carry as much health risk as saturated fats – and perhaps more.

In the US, as in Australia, regulations governing nutrition labelling do not apply to food sold in restaurants, including fast food outlets. This has been identified by some nutritionists as a gap in the regime of information about the contents of food that could expose restaurant operators to potential legal liability.

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Australian regulatory response: food marketers beware

The recent obesity debate in Australia has largely centred around food marketing aimed at children. No regulatory action has yet been taken, but Larry Anthony, Commonwealth Minister for Children & Youth Affairs, has warned advertisers that 'junk' food commercials targeted at children will be hit with tougher regulations unless advertisers act responsibly to help stem childhood obesity.

In response to these admonitions and the threat of impending litigation, food marketers are being strongly advised to avoid blatantly targeting kids with product promotions, and to rethink the way they package and promote certain food products. Under this new approach to food advertising, smaller portions are now the order of the day, and those who continue to push 'super-sizing' could be headed for trouble.

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Schools get tough

The campaign against fast food is also being fought on the education front. In the US, the New York City Education Department has banned candy, soda and other sugary snacks from school vending machines. Similar moves may take place in Australia, with the National Obesity Taskforce recently releasing preliminary recommendations involving strict guidelines for school canteens and vending machines. The taskforce is due to make its full report in November

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Conclusion

Although we are yet to see a successful claim for 'wrongful obesity', the storm clouds are gathering. The US experience and the apparent eagerness of some Australian lawyers to pursue class or multi party actions means that the potential for such claims must be taken seriously. This threat extends not only to that of adverse legal rulings but, of equal importance, to product and corporate reputation.

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Legislation update

Australia and New Zealand Food Regulation Ministerial Council agree on new policies
Review of GM labelling standards

When the Ministerial Council agreed to new labelling regime for GM foods in December 2000, Australia and New Zealand were one of the first countries to implement the GM labelling standards. The Council therefore has requested a review of the Australian and New Zealand requirements in the next three years to take into account the international position. The review will be conducted by Food Standards Australia New Zealand and will follow the following guidelines:

  • review international GM labelling regulations with particular focus on the EU, US, Canada and APEC countries;
  • compare Australian and New Zealand requirements with international regulations in relation to GM food labelling;
  • assess attitude of consumers in relation to labelling and acceptance of GM foods in Australia, New Zealand and overseas;
  • summarise changes in the Codex requirements in relation to GM food labelling; and
  • summarise implementation of GM food labelling standard in Australia and New Zealand and report on compliance and enforcement of standards to date.

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Maximum residue level

The procedures for setting maximum residue level under the Australian Pesticides and Veterinary Medicines Authority and the Food Standards Code will be harmonised in an aim to establish one set of MRLs that regulate food safety as well as chemical use in agriculture.

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Ban on ethylene oxide

The phasing-out of the use ethylene oxide for treatment of herbs and spices in Australia is now complete. All food sold in Australia other than those of small producers and importers (which make up only 1 percent of trade by volume, and will be made aware of their responsibilities relating to the ban) are no longer treated with ethylene oxide.

[Food Standards Australia New Zealand]

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News

Proctor & Gamble olestra health warning not required

Mon 4 Aug – The US Food and Drug Administration has lifted its ruling on compulsory labelling of Proctor & Gamble's fat replacer, olestra. The sale of olestra was approved for sale in 1996 and is often used in 'health' snacks to replace fat, but the FDA required the replacer to be labelled to warn consumers of a possible cramps or diarrhoea. Recently, it has been found that there is negligible difference upon consumption of olestra in food.

[Source: justfood.com]

GM crops call for moratorium in Queensland

Mon 4 Aug – Growers and industry players in Queensland have expressed their growing concerns of cross-contamination of their non-GM crops which they have said, is likely to damage their position in the market. The group has called for a moratorium on GM crops in the state in line with the provisional ban on GM food production in the other states.

[Source: ABC News]

New food labelling laws allow manufacturers to use creative descriptions

Tue 12 Aug – Australia's food regulator, Food Standards Australia New Zealand has introduced new labelling laws that compel manufacturers to specify the percentage of 'characterising' ingredients in their products. This means that manufacturers may adopt creative labelling as long as they comply with this new percentage labelling requirement – apple and raspberry cordial can be described as such as long as the product label states that the product contains the percentage of raspberry and apple contained in the product. At the same time however, FSANZ has abolished the minimum standards for some food products and manufacturers have, as a result, reduced the level of key ingredients of some products. For example, the previous standard required canned fish to contain no less than 51 per cent fish, however since the abolishment of the standard, some canned fish have been found to contain only 46 per cent fish. Other examples include yoghurt no longer requiring minimum content of 5 per cent fruit, wholemeal bread requiring 90 per cent wholemeal flour. The Trade Practices Act however still plays a major role in catching manufacturers who deceptively label products.

[Source The Age]

Schools to introduce health regimes to children

Fri, 1 Aug – The National Obesity Taskforce, a government initiative, has put forward its recommendations to the Federal government in help alleviate Australia's increasing obesity problems. The proposals included requirements for child care centres and schools to follow health guidelines such implementing exercise regimes and imposing food standards for canteens and vending machines. The taskforce will make its full report in November this year.

[Source: The Age]

US files case at WTO – EU stands by its labelling and traceability laws

Mon, 11 Aug – The European Union is standing by its recently passed policy on compulsory labelling and tracing of all genetically modified food as the US files a case against the it at the World Trade Organisation. The US, in its filing last week, claimed that the that new EU regulations would act as a trade barrier and in effect EU should accept new GM crops.

[Source: Europa Online]

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Events

Global Food Safety – Safety on the shelf

Exploring the relationship between food safety and the global food market
Department of Agriculture Fisheries & Forestry – Australia

  • 28 August 2003 Brisbane
  • 29 August 2003 Adelaide
  • 2 September 2003 Sydney
  • 3 September Hobart
  • 4 September Perth

Email: food seminar@affa.gov.au
Phone: 02 6272 3317

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For further information, please contact: