Pulp Friction Australian fruit growers crushed by Health Star Rating changes

What you need to know

• In November 2020, changes were made to the calculation of health star ratings (HSRs) for non-dairy beverages.
• These changes penalise non-dairy beverages for their sugar content and have resulted in some fruit juices being awarded lower HSRs than diet soda drinks.
• The changes have prompted fierce debate between stakeholders, including industry bodies and health professionals.

What you need to do 

• Familiarise yourself with the new rules for calculating product HSRs and ensure that your products comply with rules.

Introduction

On 15 November 2020, Australia and New Zealand implemented the ten recommendations arising out of the five year review into the HSR System (Review). We discussed the Review in our November 2019 edition of Food Law Update.

Recommendation 5 of the Review called for changes to be made to the calculation of HSRs for non-dairy beverages. The overriding aim was to better distinguish water (and drinks similar in nutritional profile to water) from high energy drinks. The recommendation recognised the significant contribution that non-dairy beverages make to total sugar intake in the diets of people in Australia and New Zealand.

In this article, we discuss the impact of the implementation of Recommendation 5, and the sharp criticism that it has drawn from many in the fruit juice industry in particular. So that Recommendation 5 can be understood in context, Table 1 provides a refresher on how HSRs are calculated.

A new table for calculating baseline points for non-dairy beverages

Recommendation 5 introduced a new points table for use in calculating baseline HSR scores for Category 1, i.e. non-dairy beverages.

The Category 1-specific points table (the Category 1 table) can be contrasted with tables used for other categories of food, as follows:

• baseline points are allocated based on the energy and total sugar content of products only. Unlike for other categories, sodium and saturated fat content are not taken into account; and

• a greater number of points are awarded per gram of sugar / mL, at least up to a sugar content of 44.2 grams / 100 mL. For example, following implementation of the new Category 1 table:
  
  • nine (9) points would be awarded to a Category 1 product with a sugar content of 12.5 g / 100 mL; whereas
  • two (2) points would be awarded to a Category 2 product with a sugar content of 12.5 g / 100 mL (or 100 g).

The impact of Recommendation 5 on fruit juice products

Fruit juice is well known to contain a high amount of naturally occurring sugars. It came as little surprise that the implementation of Recommendation 5 resulted in lower HSRs being awarded to fruit juice products.

What was more surprising was that Recommendation 5 resulted in many diet soda drinks being awarded higher HSRs than fruit juices.

Stakeholder reactions

Both outcomes outraged the Australian agricultural sector (and particularly the citrus sector), and prompted fierce debate between industry members, nutritionists and health professionals.

Industry bodies such as AUSVEG, Citrus Australia and the National Farmers' Federation opposed the modifications, particularly because fruit juices contain higher amounts of beneficial nutrients (e.g. vitamin C, potassium and folate), whereas diet soda drinks commonly contain artificial colours, flavours and sweeteners. For example, the President of NSW Farmers commented that it is:

"harmful and nonsensical to send a message that fresh, unsweetened fruit and vegetable juice is somehow worse for you than a synthetic drink like diet cola".

The Australian Beverages Council considered the outcomes to be inconsistent with the Federal Government's strategy of supporting Australia's 5000-job, $900 million juice industry.
Nutrition Australia and the Obesity Policy Coalition both supported the revised ratings for fruit juices as lining up with the science, while acknowledging that there may need to be further adjustment around soft drinks.

The Australian Dental Association also appeared to be supportive, citing the greater risk of dental erosion that accompanies fruit juice consumption.

Federal Agriculture Minister David Littleproud advocated for 100% fruit and vegetable juices to (like fresh fruit and minimally processed fruits) be awarded an automatic HSR rating of 5 stars. After this was unsuccessful, Minister Littleproud proposed an automatic rating of 4 stars. This proposal was also rejected.

Response to lobbying

Following months of industry lobbying, the Australia and New Zealand Ministerial Forum on Food Regulation announced further minor modifications to the calculation of HSRs for certain Category 1 products. One outcome of the modifications ensures that:

• fruit juices receive a HSR of no less than 2.5 stars and no higher than 4 stars; and
• diet soda drinks receive a HSR of no higher than 3.5 stars,

in each case depending on total sugar and energy content.

Whilst this has led to a slightly improved outcome for fruit juice products, industry members remain unsatisfied. Some industry bodies, such as Apple and Pear Australia Limited, are now strongly encouraging members to reconsider their use of HSRs on products. A number of fruit juice producers have stated their intention to remove HSRs from their product labels completely (at least whilst the HSR system remains voluntary).

What next?

Despite the industry backlash, Recommendation 5 has been implemented, and manufacturers of fruit juice products are now required to calculate any product HSRs accordingly.

A 12 month "stock-in-trade" exception will apply to products that were using the HSR system on packs prior to 15 November 2020, and have a shelf life of 12 months or longer.

Table 1: How are HSRs calculated?

Some products, such as plain and unsweetened flavoured water, whole fresh (i.e. unprocessed) fruit and vegetables, and minimally processed whole fruit and vegetables (e.g. cut, blanched, frozen without added salt, fat, sugar/sweetener) are awarded an automatic HSR.

All other products are allocated to one of the following six product categories:

Category 1: non-dairy beverages

Category 1D: dairy beverages and alternatives

Category 3: oils and spreads

Category 3D: cheese

Category 2D: dairy foods other than those in Categories 1D and 3D

Category 2: foods other than those in the above Categories

The HSR of these products is calculated according to the following steps.

Step one: Calculation of HSR "baseline" points

For Category 1D, 2, 2D, 3 and 3D products, the "baseline" score is allocated based on the content of each of the following, per 100 mL or 100 grams, with the higher the content, the greater the number of baseline points awarded:

• energy;
• saturated fat;
• total sugar; and
• sodium.

The same matrix table is used to allocate baseline points for Category 1D, 2 and 2D products. That is, the number of points allocated based on the amount of each of the four components above is the same.

A different matrix table is used for Category 3 and 3D products. This table allocates less baseline points based on saturated fat content.

For Category 1 products, the baseline score is allocated based on energy and total sugar content only (the matrix table contains two columns only). This table allocates more baseline points based on total sugar content than other tables.

Step 2: Allocation of "HSR modifying points"

HSR modifying points are then allocated, based on the following:

• percentage of fruits, vegetables, nuts and legumes (FVNL points);
• protein content (P points) ; and
• fibre content (F points).

A greater FNVL, protein or fibre content equates to a greater number of modifying points.

Category 1 products are not eligible for P points or F points.

Step 3: Calculation of HSR score

The HSR score is then calculated by subtracting the HSR modifying points from the baseline points, as follows:

Step 4: Assignment of HSR

The product is then assigned a HSR based on its overall HSR score. The higher the overall HSR score, the lower the HSR.

Authors: Melanie Kitchin, Senior Associate; and Stuart D'Aloisio, Partner.