What does “Sugarfree” mean?

By Chris Preston

Principal Legal Counsel, Australia

ComplyANZ

 

I really am at a loss to understand the hate directed against sugar these days.  It is, after all, the body’s energy source of choice and an essential part of the human diet, either as saccharides or more complex carbohydrates.  I laugh, though, when my friends tell me they have quit sugar but have honey on toast for breakfast.

 

Still, I am not one to get in the way of marketing claims, provided they are truthful and accurate, and so it seems a good time to talk about what is meant by ‘sugar free”.

 

Internationally, the Codex Alimentarius Commission of the WHO and FAO Guidelines for the Use of Nutrition and Health Claims provides, in relation to the nutrient ‘sugars’ (plural), that the term “free” should be used only where the food contains no more than 0.5g sugars per 100g of solid food or per 100ml of a liquid food.  Seems simple, that amount is unlikely to be of dietary significance.

 

However, the Australian Competition and Consumer Commission take the view that ‘free’ means not detectable, a much more stringent test (refer to the ACCC Food Descriptor Guidelines) and the ACCC has a very big stick - fines of up to $1.1 million may apply for contraventions.  This has a number of consequences: first, obviously, that any substance that would analyse as ‘sugar’ is a problem for a ‘sugar free’ claim, but secondly that it can be highly problematic when looking at bringing overseas product (making claims according to Codex) into Australia if a ‘sugar free’ claim is made.

 

The ACCC, in fairness, is working with a law that says claims must not be false, misleading or deceptive.  While it may be true that the Codex permission to have dietarily insignificant amounts of sugar and still make a ‘free’ claim is not misleading or deceptive, the ACCC would argue that any detectable sugars makes the claim false, and that is enough to make it a contravention.

 

The legal test, though, is not based upon a scientific ‘chase the molecule’ examination, although that approach is implicit in the ACCC’s expressed views.  Rather, the test is whether the range of consumers at whom the representation is directed, taking into consideration all the circumstances, would be led into error, for example into believing that the product has characteristics or attributes that it does not have.  This is a much more consumer based approach that perhaps leaves open some room for the presence of trace amounts of sugar present, other than as an ingredient.  The downside is that it does tend to mean the courts deliver case-by-case outcomes rather than generally applicable ones.

So let’s consider some real world examples:

 

A product that has no detectable sugar is pretty much risk free: such a product fulfils the ACCC’s expectation for the claim. 

A product may contain some analysable sugars, but these are derived from, say, flavour or colour carriers rather than being intentionally added as an ingredient.  The sugar is present almost as a processing aid: it was used to deliver the colour or flavour to the food but serves no function (ie does not add perceptible sweetness) in the final food, and its presence is of no nutritional significance.  In my view, the legal test above gives some room to move on this, and the representation does not seem to me to lead consumers into error.  Sure, you can analyse molecules, but the Australian Consumer Law is about protecting consumers from dodgy claims, and it is hard to see the negative impact on consumers in such an instance.

 

A product may contain some amounts of added sugar, but less than the Codex 0.5 per 100g or 100ml, either added directly or through use as a sub ingredient.  Tough luck.  If sugar is intentionally present as an ingredient in the food, even at low levels, in my view the ‘sugar free’ claim is off the table, even though the claim may be valid in overseas markets.  Australia (and New Zealand for that matter) is a tough market for claims, and the fact that a claim may be allowed overseas doesn’t mean it is allowed here.

 

A product may contain nutritionally significant amounts of added sugar and still claim ‘sugar free’.  Don’t laugh, I have seen this sort of thing happen often enough.  There is no hope for such a product if the ACCC comes knocking on the door.

 

Finally, there are those clever people who (rightly) say that sugar (singular) is different from sugars (plural).  The former means just sucrose, while the latter extends to all hexose mono- and di-saccharides.  This approach has some basis in the ANZ Food Standards Code, and is the view of many “I quit sugar” devotees, but it is a dangerous game when it comes to claims.  Why?  Because it is something of a technical distinction, especially when all the dietary sugars (and also most soluble carbohydrate) end up as glucose in the gut after digestion anyway.  The Australian Consumer Law relies on the impressions created in the minds of consumers, both informed and uninformed, and so reliance on technical regulatory distinctions generally is not enough to get you over the line into safe territory.  If you want to go down this line, you might consider wording the claim so that it conveys ‘sucrose free’ rather than ‘sugar free’.  That may put you on less shaky ground.

 

So, what are the ‘sugar free’ claim take home messages from all this?

  • To be safe, the product should have no detectable sugar.
  • Detectable sugar unintentionally carried over from additive use that has no sweetness effect or nutritional significance is a more grey area that could depend on the circumstances of the claim.
  • Intentionally present sugar as an ingredient or sub-ingredient is a no go area.
  • Sugar free should be understood to refer to all sugars unless specially qualified to refer only to sucrose - there may be some wriggle room but failure to qualify the claim is a risk.

 

And by the way, I love sugar - just not in my coffee.