Food Standards (Proposal P1062 – Defining added sugars for claims) Variation

This instrument varies the Australia New Zealand Food Standards Code by repealing the existing table entry for “Sugar or sugars” in section S4‑3 of Schedule 4 (Nutrition, health and related claims) and substituting a new, more detailed entry. The mechanical effect is to redefine the conditions under which a food product may bear a nutrition content claim about sugars. The previous entry simply listed claim types without a definition of “added sugar”. The new entry sets out specific numerical thresholds and ingredient exclusions for each claim category: % Free, Low, Reduced or Light/Lite, No added, and Unsweetened.

The most significant change is the introduction of a statutory definition of “added sugar” for the purposes of the “No added” claim. That definition is exhaustive: it includes hexose monosaccharides and disaccharides, low‑energy D‑tagatose, starch hydrolysate, glucose syrup, maltodextrin and similar products, sugar‑refinery products (brown sugar, molasses, raw sugar, golden syrup, treacle), icing sugar, invert sugar, plant‑derived sugar and sugar syrup, honey, malt, malt extracts, and, unless the food is a prescribed beverage, concentrated or deionised fruit or vegetable juice. The instrument also imposes a new condition for the “No added” claim: the concentration of hexose monosaccharides and disaccharides in the food must not have been increased by hydrolysis of carbohydrates during production, unless that concentration does not exceed 1.5%. For the “Unsweetened” claim, the food must already meet the “No added” conditions and additionally must not contain any intense sweetener, sorbitol, mannitol, glycerol, xylitol, isomalt, maltitol, maltitol syrup, erythritol, or lactitol, nor any monosaccharide or disaccharide listed in the table to subsection S11‑2(3).

The variation includes a transition period of 48 months from its gazettal date (13 December 2023) during which a product may be sold if it complies with either the pre‑variation or the post‑variation Code. A further 24‑month post‑transition period allows products that were packaged and labelled before the end of the transition period to be sold under either regime. These transitional arrangements reduce the immediate compliance burden but impose a fixed timetable: after six years total, full conformity with the new conditions is required.

Nutrition content claim about sugar. The claims covered are those described in the table to section S4‑3: “% Free”, “Low”, “Reduced or Light/Lite”, “No added”, and “Unsweetened”. Each has its own gateway conditions that must be satisfied exactly as written. The claims are in the context of the “Sugar or sugars” row, meaning they relate to all sugars present, not just added sugars (except for the “No added” claim which specifically deals with lack of added sugars).

Added sugar is defined solely for the “No added” claim condition (e) as “any of the following derived from any source”: hexose monosaccharides and disaccharides; low‑energy D‑tagatose; starch hydrolysate; glucose syrup; maltodextrin and similar products; sugar‑refinery products (brown sugar, molasses, raw sugar, golden syrup, treacle); icing sugar; invert sugar; plant‑derived sugar and syrup; honey; malt; malt extracts; and, unless the food is a “prescribed beverage”, concentrated or deionised fruit or vegetable juice. This is an inclusive definition and does not apply to other claims (e.g., “Reduced” uses a comparison with a reference food regardless of added sugar). The definition is broad and catches many ingredients that consumers might not think of as “added sugars”, such as malt extracts and honey. The exclusion for prescribed beverages (brewed soft drinks, formulated beverages, juice blends, fruit drinks, fruit juices, vegetable juices, water‑based beverages) means that concentrated fruit juice used as an ingredient in those beverages is not treated as an added sugar for the “No added” claim if the beverage itself falls within the prescribed list. This creates an asymmetry: a fruit juice concentrate used in a fruit drink is not an added sugar, but the same concentrate used in a yogurt would be.

Hydrolysis condition. Condition (c) for “No added” requires that the food’s concentration of hexose monosaccharides and disaccharides has not been increased by hydrolysis of carbohydrates during production, unless that concentration is not >1.5%. This targets processes that break down starches or other carbohydrates into simpler sugars, effectively preventing a manufacturer from using hydrolysis to boost sugar levels without adding sugar ingredients. The 1.5% threshold is a practical de minimis.

Prescribed beverage is a closed list: brewed soft drink, formulated beverage, juice blend, fruit drink, fruit juice, vegetable juice, water‑based beverage. The list is in condition (g). It does not include dairy drinks, plant‑milk alternatives, or alcoholic beverages (except that “brewed soft drink” may include some non‑alcoholic brews). This means that a manufacturer using concentrated fruit juice as an ingredient in a non‑prescribed beverage (e.g., a coconut milk beverage) would have to treat that concentrate as an added sugar for the “No added” claim.

Manufacturers of packaged foods and beverages are the primary targets. Any product that currently makes or may in the future make a nutrition content claim about sugars must be reformulated, re‑tested, or relabelled to meet the new conditions. Businesses producing yogurts, breakfast cereals, muesli bars, sauces, spreads, baked goods, confectionery, and beverages are directly affected. The definition of added sugar is broad enough to catch many small‑batch producers who use honey, malt, or fruit juice concentrates as natural sweeteners.

Small and medium enterprises face a disproportionate compliance burden. They may lack the in‑house regulatory expertise to verify whether their processes (e.g., hydrolysing carbohydrates) raise hexose levels above 1.5%, or to determine whether a particular concentrated vegetable juice is an added sugar. The transitional periods give some breathing room, but the ultimate cost of relabelling, reformulation, and laboratory testing is fixed and non‑trivial.

Importers of food products must ensure that overseas suppliers meet the Australian definitions. The added sugar definition may differ from other jurisdictions (e.g., the US FDA definition of added sugars, which excludes malt extract in many cases). This creates extra due diligence costs and the risk of holding non‑compliant stock.

Retailers (supermarkets, online sellers) will need to manage two sets of labels during the transition period. They may face questions from consumers about why the same brand has different claims under the old and new regimes. The 24‑month post‑transition period for existing stock means that products with old labels can still be sold alongside new ones, which could confuse shoppers and increase pressure on shelf‑space management.

Consumers are affected indirectly through changes in product formulation and labelling. The instrument’s stated objective (as per the pre‑variation process) is to help consumers identify foods with no added sugars. In practice, some products that previously bore a “no added sugar” claim may lose that claim if an ingredient like honey or fruit juice concentrate now counts as an added sugar. This could lead to either reformulation to substitute away from those ingredients, or removal of the claim from otherwise similar products. The effect on consumer choice is ambiguous: the claim becomes more meaningful but fewer products will carry it.

FSANZ and enforcement bodies (state and territory food safety agencies) must interpret the new definition and conditions, issue guidance, and conduct compliance checks. Agencies will need to assess hydrolysis processes and sugar concentrations, which may require laboratory resources.

Duty to ensure claims are accurate. Any person who sells a food bearing a nutrition content claim about sugars must ensure that the food meets all conditions set out in the new table entry. This is not a strict liability offence under the Code itself, but the Food Standards Australia New Zealand Act 1991 and state enforcement laws make it an offence to sell food that does not comply with the Code. The duty falls on the entity that places the product on the market, including importers and retailers if they are the ones making the claim (e.g., private‑label products).

Right to use transitional periods. The instrument gives businesses a right to choose between the old and new Code during the 48‑month transition period. This is a valuable flexibility. However, the right is not unbounded: if a product complies with the old Code during the transition, it must have been compliant with the old Code (which had its own conditions). A business cannot mix and match conditions from both regimes - compliance is with either the entire old entry or the entire new entry.

Right to sell existing stock post‑transition. A product that was packaged and labelled before the end of the transition period may be sold during the following 24 months even if it does not meet the new conditions, provided it meets the old conditions. This right attaches to the physical pack, not the product concept: a new production batch after the transition period ends must comply with the new Code. This creates an incentive to over‑produce and stockpile during the transition period, but only if the business believes the old claim is commercially valuable.

Duty not to misuse the “Unsweetened” claim. The conditions for unsweetened include the “No added” conditions plus additional prohibitions. A product that contains stevia or erythritol cannot be labelled “Unsweetened”, even if the sweetener is natural and zero‑calorie. The duty is to ensure all criteria are met; there is no option to disclaim by saying “Unsweetened but contains erythritol”.

Right to rely on ingredient declarations. For the “No added” claim, condition (b) requires that the food does not contain an added sugar “as an added ingredient”. A manufacturer can rely on its own ingredient list and formulation records to demonstrate compliance. However, the hydrolysis condition (c) adds a process‑based test that may require additional testing or process control documentation.

The variation instrument itself does not create penalties; it amends the Code. Penalties are found in the Food Standards Australia New Zealand Act 1991 and in state and territory food legislation. Under the Act, a person who contravenes a provision of the Code is liable to a penalty not exceeding the maximum prescribed under the relevant state or territory law (typically up to $500,000 for individuals and $5 million for corporations for serious offences, though this varies). Further, the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010) may apply if a claim is false or misleading - for example, labelling a product “No added sugar” when it contains honey would contravene the new Code and also likely breach the prohibition against misleading representations about the composition of goods.

Enforcement is divided: FSANZ sets the standards; state and territory food safety agencies enforce them. A business found to be selling a product with a non‑compliant claim can face seizure, recall orders, infringement notices, and prosecution. The practical risk during the transition period is low because businesses can choose either regime, but after the transition period, the new conditions become mandatory.

The instrument’s definitional approach creates a structural enforcement challenge: determining whether a concentrated fruit juice is an “added sugar” depends on whether the final food is a “prescribed beverage”. An enforcement officer must decide the classification of the food. For borderline products (e.g., a fermented kombucha with fruit juice concentrate), the officer must determine if it falls under “brewed soft drink” or “water‑based beverage”. Disputes may arise, and a business that guesses wrong faces penalty.

The variation amends Schedule 4 of the Code, which is part of Standard 1.2.7 (Nutrition, health and related claims). That standard sets out general requirements for all nutrition content claims and health claims. The new sugar entry must be read together with the rest of Standard 1.2.7, including the overarching rule that claims must not be false or misleading (section S4‑2). A claim that is technically correct under the new conditions could still be misleading if presented in a way that implies the product contains no sugars at all when it contains monosaccharides from other sources (e.g., fruit puree that is not a concentrate but still contributes sugars). The interaction with general labelling requirements in Standard 1.2.1 (Application of labelling and other information requirements) is also relevant: the ingredient list must name any added sugar ingredient; the nutrition information panel must declare total sugars. The new definition of added sugar for claims does not change the labelling declaration requirements for added sugars in the nutrition panel (which is governed by Standard 1.2.8). That standard does not currently require a separate “added sugars” line, though there have been calls for such. The instrument therefore creates a definition for claim purposes only.

The instrument also interacts with Standard 1.1.1 (Preliminary provisions - Application, interpretation and general prohibitions). Clause 4 of the variation explicitly says that section 1.1.1‑9 (which relates to transitional provisions for variations) does not apply to this variation; the variation’s own transitional provisions take precedence. This means the default 12‑month transition under section 1.1.1‑9 is overridden by the 48+24 month periods.

State food acts typically incorporate the Code by reference. The variation is gazetted and becomes part of the Code from 13 December 2023. State enforcement agencies will need to update their compliance guidance and training.

The instrument also interacts with trade practices law: if a product bears a “No added sugar” claim in Australia but not in New Zealand (where the Code also applies, though New Zealand has its own enforcement), exporters must be aware of potential asymmetry. The instrument is made under the Food Standards Australia New Zealand Act 1991, which is a joint scheme; New Zealand is bound by the variation once gazetted. So the new conditions apply in both countries.

The variation is a single instrument that amends the table in Schedule 4. It does not contain any previous amendment history because it is the origin of the new entry. The pre‑variation entry for “Sugar or sugars” had been in the Code since the introduction of Standard 1.2.7 (around 2013). That earlier entry simply listed conditions for % Free, Low, Reduced, No added, and Unsweetened without a definition of added sugar. The new entry is the first formal definition of added sugar for claim purposes in the Code. There is no citation of any prior variations to this table entry; the instrument repeals the old entry in its entirety.

From a regulatory process perspective, this variation implements Proposal P1062, which FSANZ developed through a public consultation process. The explanatory note (not reproduced in the instrument) would describe the rationale. The instrument itself does not set out why the changes were made; it only states the new text. This is typical of Code variations.

No further amendments have been made to this entry since gazettal. Future amendments could arise from other proposals (e.g., P1064 or P1065) but are not part of this instrument.

As of the date of this analysis, there is no reported litigation in Australian courts specifically interpreting or challenging the new added sugar definition or any resulting claims. The variation is recent (gazetted December 2023, with a 48‑month transition period), so any disputes would likely emerge only after enforcement begins in earnest post‑transition.

Pre‑variation case law on “no added sugar” claims under the old Code is sparse. The old entry did not define added sugar, and enforcement relied on general misleading conduct provisions. For example, the Australian Competition and Consumer Commission has taken action against businesses for claiming “no added sugar” when the product contained fruit juice concentrate that contributed sugars; such cases were decided under the Australian Consumer Law, not the Code’s claim conditions. The new variation overcomes that ambiguity by codifying what counts as added sugar. Future litigation may test the scope of the definition - for instance, whether “similar products” in condition (e)(v) includes oligofructose or polydextrose, or whether a particular fruit juice concentrate is sufficiently deionised to qualify.

Because the instrument is a Code amendment, a court could also review whether FSANZ acted within power or properly considered the evidence. Judicial review of FSANZ decisions is rare, but not impossible under the Administrative Decisions (Judicial Review) Act 1977 or the ADJR Act in New Zealand. Any challenge would need to be brought within the limitation period.

Overall, the litigation history is effectively nil. This means the interpretation risk is currently borne by businesses: until a court or a formal enforcement action clarifies ambiguous terms (e.g., “similar products”), the industry must rely on FSANZ guidance and its own legal advice.

Broad definition of added sugar catches “natural” ingredients. Honey, malt extract, and fruit juice concentrates are all considered added sugars for the “No added” claim unless the product is a prescribed beverage. A muesli bar sweetened with honey and claiming “no added sugar” under the old Code will lose that claim under the new definition, even if the honey is the only sweetener. The same applies to malted breakfast cereals and fruit‑sweetened yogurts. Businesses that rely on these ingredients for clean‑label positioning must either reformulate or abandon the claim.

Hydrolysis condition is easily overlooked. Condition (c) prohibits increasing hexose monosaccharides and disaccharides via hydrolysis of carbohydrates unless the resulting concentration is below 1.5%. A manufacturer making a cereal that uses enzymatic hydrolysis to break down starch into sugars (e.g., for texture or sweetness) will fail the “No added” claim even if no sugar ingredients are added, unless the sugar concentration remains below the threshold. This catches processes that are not normally thought of as “adding sugar”.

Prescribed beverage list is narrow and arbitrary. Only the listed beverages (brewed soft drink, formulated beverage, etc.) exclude concentrated juice from the added sugar definition. A coconut water that contains concentrated coconut water (which is not a fruit juice) would not be a prescribed beverage; the concentrate would be an added sugar under the general classification. The same applies to plant‑milks, coconut yogurts, and kombuchas that use fruit juice concentrate for flavouring. This creates an uneven playing field: a fruit drink manufacturer gets a pass, but a yogurt maker does not.

Unsweetened claim is virtually impossible for many products. In addition to meeting “No added” conditions, the product must contain no intense sweeteners or polyols. Many naturally sweet products (e.g., fruit purees, dried fruit) contain monosaccharides and disaccharides that are listed in the table to subsection S11‑2(3). Even a plain Greek yogurt that contains a small amount of lactose (a disaccharide) as a natural component would fail the “Unsweetened” claim because condition (c) for unsweetened prohibits any monosaccharide or disaccharide that is listed as an ingredient or ingredient of a compound ingredient. The condition is not limited to added sugars; it covers any listed sugar present as such. This is a trap for dairy products and fruit preserves.

Transition period does not cover new formulations after the 48‑month end. A business may think it can keep using the old conditions indefinitely if it has old labels, but only pre‑existing packaged stock is grandfathered. If the business decides to reformulate slightly (e.g., change a minor ingredient) after the transition period, the new formulation must meet the new conditions, and the label must also be updated. The grandparenting is product‑specific, not brand‑specific.

Step 1: Identify all sugar claims on products. Review product labels and marketing materials for any of the five claim types. Prioritise products bearing “No added sugar” or “Unsweetened”, as those are the most affected. Products with “Low sugar” or “Reduced sugar” claims should also be checked against the numeric thresholds (2.5g/100mL liquid, 5g/100g solid for Low; 25% reduction versus reference food for Reduced).

Step 2: Map all ingredients against the definition of added sugar. For each product with a “No added sugar” claim, list every ingredient and determine whether it falls within condition (e). Pay special attention to honey, malt, malt extracts, fruit juice concentrates, and vegetable juice concentrates. If the product is a prescribed beverage, concentrated juice may be excluded; otherwise it is an added sugar. Document the rationale.

Step 3: Assess hydrolysis processes. For any product that undergoes hydrolysis (e.g., through enzymes, heat, acid), measure the concentration of hexose monosaccharides and disaccharides after hydrolysis. If the concentration exceeds 1.5% and a “No added sugar” claim is desired, the process must be modified to eliminate the increase, or the claim must be dropped. This may require consulting a food technologist.

Step 4: Evaluate “Unsweetened” claims. If the product claims “Unsweetened”, verify that it contains no intense sweeteners, no polyols (as listed), and no monosaccharides or disaccharides from the S11‑2(3) table as ingredients or as part of compound ingredients. This may necessitate reformulation or removal of the claim.

Step 5: Choose a compliance path during transition. For each product, decide whether to comply with the old Code (if already compliant) or the new Code. If opting for the old Code, ensure it is fully compliant with the pre‑variation conditions (which themselves had requirements). Keep records of which regime the product is following, and mark the batch, packaging date, and transition timeline.

Step 6: Update labels and market materials. For products switched to the new Code, update the claim wording and any supporting statements. The claim “No added sugar” is now defined; if the definition is met, the claim can be used. If a product cannot meet the new conditions but can meet the old ones, keep the old claim only as long as the transition permits. Plan for end‑of‑transition relabelling.

Step 7: Laboratory testing. For the “No added” claim, verify that total sugars do not exceed 10g/100g solid or 7.5g/100mL liquid (condition (b)(ii)). This is a simple test. For the hydrolysis condition, measure hexose levels before and after processing, or the final concentration. For “Unsweetened”, test for the presence of polyols and intense sweeteners if there is any suspicion.