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Published online by Cambridge University Press: 24 January 2025
Drug foods are part of every food culture, so Sidney Mintz has argued, and the energy drink, Red Bull, might be understood as one of our latest drug foods. Drug foods pose a challenge from a regulatory point of view for they bring into focus two of the great food debates – the impact of food regulation on food innovation and the role of food regulators in regard to public health. In so far as drug foods have traditionally formed a part of every diet, any attempt to ban or limit new or novel drug foods opens the food regulator to ‘endless charges of hypocrisy and irrationality’, ‘paternalistic’ behaviour and standing in the way of food innovation. On the other hand, if the food regulator does allow new drug foods to be manufactured and sold it is accused of failing in its duty to protect public health or of being ‘amoral’ in this regard.
1 Sidney, W Mintz, Sweetness and Power: The Place of Sugar in Modern History (Viking, 1985)Google Scholar.
2 David, T Courtwright, The Forces of Habit: Drugs and the Making of the Modern World, (Harvard University Press, 2001) 190Google Scholar. This is similar to the problem faced by food and drug regulators in drawing the line between licit and illicit drugs. As David Courtwright points out, the fact that psychoactive substances such as coffee, tea, cocoa, alcohol and tobacco are lawful whilst opium, cannabis and coca are not has prompted an ‘entire genre of drug literature…[which] assesses the relative harms of different drugs and then professes dismay at their misalignment with policy. Alcohol and tobacco are exhibits A and B.’ Courtwright suggests that Edward, M Brecher's Licit and Illicit Drugs: the Consumers Union Report on Narcotics, Stimulants, Depressants, Inhalants, Hallucinogens, and Marijuana — including Caffeine, Nicotine and Alcohol (Little, Brown, 1972)Google Scholar was the progenitor of this genre of literature.
3 Steven, B Steinborn and Kyra, A Todd, ‘The End of Paternalism: A New Approach to Food Labelling’ (1999) 54 Food and Drug Law Journal 401Google Scholar.
4 Dov, Fox, ‘Ethics and Law in FDA Decisionmaking’ (2005) Michigan State Law Review 1135Google Scholar; Katherine, A Van Tassel, ‘Slaying the Hydra: The History of Quack Medicine, the Obesity Epidemic and the FDA's Battle to Regulate Dietary Supplements’ (2009) 6 Indiana Health Law Journal 203Google Scholar.
5 Food Standards Australia New Zealand, Australia and New Zealand Food Regulation Ministerial Council Communiqué (Media Release, 6 May 2011) <http://www.foodstandards.gov.au/scienceandeducation/mediacentre/mediareleases/mediareleases2011/australiaandnewzeala5154.cfm>.
6 Zenith International (2004) West Europe Energy Drinks Market Races Towards €2500 million, Press Release, 6 January 2004 cited in Nirmalya Kumar, Sophie Linguri and Nader Tavassoli (2004) ‘Red Bull: the anti-brand brand', London Business School.
7 Jessica Wohl, ‘Soft Drinks Hit as Americans Cut Back on Treats', Reuters, 30 March 2009 <http://www.reuters.com/article/idUSTRE52T61520090330>.
8 Red Bull, Red Bull Australia (2011) <http://www.redbull.com.au>. This is from the Australian website although the Red Bull websites from China to Estonia have almost identical wording. The differences between the websites from country to country arise from the different sporting events being promoted and the health claims allowed in different jurisdictions.
9 See Red Bull Nudist Camp Commercial (28 February 2009) Youtube <http://www.youtube.com/watch?v=t5DndA40wHs>.
10 Brad Tuttle, ‘What You Might Soon Be Tempted to Buy: Marijuana-chic “Relaxing soda”, $6 Donuts', Time 12 January 2010 <http://money.blogs.time.com/2010/01/12/what-you-might-soon-be-tempted-to-buy-marijuana-chic-relaxing-soda-6-donuts/>.
11 Jerry Hirsch, ‘Kava “Anti-energy” Drink Takes Root in the Southland', LA Times (online), 29 December 2009 <http://articles.latimes.com/2009/dec/29/business/la-fi-kava29-2009dec29>.
12 ‘Mary Jane', to those in the know, is a slang term for marijuana and Mary Jane Relaxing Soda is advertised as delivering ‘euphoric relaxation’ and effects ‘similar to marijuana’ but without the marijuana side-effects such as ‘laziness, 2 am pizza runs, black light posters, or handcuffs.’ It is also compared to alcohol but without the alcohol side effects of ‘drowsiness, “beer-goggles”, tough-guy syndrome, or hangovers': Tuttle, above n 10. See also: The Relaxing Company, Mary Jane's Relaxing Soda (2011) <http://www.relaxingsoda.com/#/mary-jane-s-relaxing-soda>.
13 When Red Bull energy shots were introduced the German Federal Institute for Health Assessment reportedly issued a warning against over-consumption of energy drinks: Shane Starling, Germans Call for Energy Shot Ban (4 February 2010) Nutra Ingredients <http://www.nutraingredients.com/Regulation/Germans-call-for-energy-shot-ban>. See also, Red Bull Reacts to German Opinion on Energy Shots (9 February 2010) Beverage Daily.com <http://www.beveragedaily.com/Regulation-Safety/Red-Bull-reacts-to-German-opinion-on-energy-shots>.
14 Red Bull Masks Alcoholic Effect (26 March 2006) BBC News <http://news.bbc.co.uk/2/hi/uk_news/4826920.stm>.
15 W P, Tormey and A, Bruzzi, ‘Acute Psychosis due to the Interaction of Legal Compounds–Ephedra Alkaloids in “Vigueur Fit” Tablets, Caffeine in “Red Bull” and Alcohol’ (2001) 41(4) Medicine Science and Law 331Google Scholar.
16 France successfully banned a taurine based Red Bull for twelve years on the basis that the effects of taurine were insufficiently known: Christian Nordqvist, ‘French Ban on Red Bull (Drink) Upheld by European Court’ (8 February 2004) Medical News Today <http://www.medicalnewstoday.com/releases/5753.php>. This was upheld by the European Court of Justice in Commission of the European Communities v French Republic (European Court of Justice, C-24/00, 5 February 2004). During this time a modified taurine-free version of Red Bull was sold in France. See also Joseph Tandy, ‘France Ends Twelve Year Ban on Energy Drink Red Bull', Reuters, 15 July 2008 <http://www.reuters.com/article/idUSL1576964720080715>.
17 Red Bull Lobbies Turkey over Energy Drink Ban (9 May 2009) Beverage Daily.com <http://www.beveragedaily.com/Markets/Red-Bull-lobbies-Turkey-over-energy-drink-ban>. As we shall see, in Australia a special food standard had to be passed to allow the manufacture of Red Bull.
18 ‘Red Bull Cola Could Be Banned in Germany After Traces of Cocaine Found in It', MailOnline, 25 May 2009 <http://www.dailymail.co.uk/news/worldnews/article-1187275/Red-Bull-Cola-banned-Germany--traces-cocaine-it.html>. See also ‘Red Bull's New Cola: A Kick from Cocaine?’ Time.com, 25 May 2009 <http://www.time.com/time/world/article/0,8599,1900849,00.html>; Red Bull: More Cocaine Traces, Countries Ban Energy Drinks (2 June 2009) Examiner.com <http://www.examiner.com/health-news-in-san-francisco/red-bull-more-cocaine-traces-countries-ban-energy-drinks>.
19 Alan Hall, ‘Swedish ban on sale of Red Bull to young', News.scotsman.com, 16 September 2009 <http://news.scotsman.com/world/Swedish-ban-on-sale-of.5649614.jp>.
20 See Red Bull 2009 Advertising Standards Bureau Complaint 477/09 (Wednesday 11 November 2009) <http://122.99.94.111/cases/477-09.pdf>.
21 In Britain the Advertising Standards Authority upheld complaints that Red Bull did not enhance performance as claimed by the manufacturers unless one drank four cans of the drink. Despite the fact that Red Bull submitted twenty reports to substantiate its claims that the level of caffeine in Red Bull did enhance performance these were rejected by the British ASA. In Australia, on the other hand, the complaint was not upheld see Red Bull 2009 Advertising Standards Bureau Complaint 477/09 (Wednesday 11 November 2009) <http://122.99.94.111/cases/477-09.pdf>.
22 See Red Bull Aust Pty Ltd 2008 Advertising Standards Bureau Complaint 61/08 (Wednesday 13 February 2008) <http://122.99.94.111/cases/61-08.pdf>; Red Bull Aust Pty Ltd 2008 Advertising Standards Bureau Complaint 16/08 (Wednesday 13 February 2008) <http://122.99.94.111/cases/16-08.pdf>; Red Bull Aust Pty Ltd 2009 Advertising Standards Bureau Complaint 75/09 (Wednesday 25 February 2009) <http://122.99.94.111/cases/75-09.pdf>; Red Bull Aust Pty Ltd 2009 Advertising Standards Bureau Complaint 341/09 (Wednesday 12 August 2009) <http://122.99.94.111/cases/341-09.pdf>; Red Bull Aust Pty Ltd 2009 Advertising Standards Bureau Complaint 523/09 (Wednesday 25 November 2009) <http://122.99.94.111/cases/523-09.pdf>;, Red Bull Aust Pty Ltd 2010 Advertising Standards Bureau Complaint 123/10 (Wednesday 24 March 2010) <http://122.99.94.111/cases/123-10.pdf>.
23 Red Bull Aust Pty Ltd 2001 Advertising Standards Bureau Complaint 285/01 (Tuesday 13 November 2001).
24 ‘FDA Cracks Down on Energy Drink “Red Bull“', Express India.com, 13 July 2005. <http://www.expressindia.com/news/fullstory.php?newsid=50588>.
25 Barbara and David P Mikkelson, Bull Marketed, (31 December 2005) Snopes.com <http://www.snopes.com/medical/potables/redbull.asp>.
26 Red Bull Australia Products: FAQ (2011) Red Bull Australia <http://www.redbull.com.au/cs/Satellite/en_AU/Red-Bull-Australia/Products/011242758640967#/product-FAQs>. Although taurine is naturally produced in the testicles of some mammals the taurine used commercially in Red Bull and other products is probably exclusively synthetically produced. See Woojae, Kim ‘Debunking the Effects of Taurine in Red Bull Energy Drink’ (2003) 9(1) Nutrition BytesGoogle Scholar. The response of the Red Bull company to this barrage of criticism, innuendo, gossip and attack is predictably sanguine. ‘We do not force volumes of scientific evidence down the consumers [sic] throat', said Harry Drnec, the Managing Director of Red Bull UK, ‘The consumer…makes up their own mind if it works'. ‘Energy Drink Claims Rejected’ (24 January 2001) BBC News <http://news.bbc.co.uk/2/hi/health/1133348.stm>.
27 Todd Gitlin originally used the genetic engineering term ‘recombinant’ to describe a television culture which panders to a consumer demand for entertainment which is both new and nostalgic: Todd, Gitlin, Inside Prime Time (Pantheon Books, 1983) 63–85Google Scholar. The food historian Warren Belasco adopted the term ‘recombinant’ to describe a contemporary food culture which rejects the rationalising dreams of food modernism — space food, Tang, the kitchenless home and the meal in a pill — in favour of a form of ‘new traditionalism’ in food which promises the convenience and science of modernist food fantasies but in a familiar, even nostalgic, form. The functional food products of a recombinant food culture — health bars, sports drinks, vitamin water, low fat milk, ‘healthy bacon’ and iodised bread — do not promise a modernist ‘meal in a pill’ but rather a pill in a meal: Warren, Belasco, Meals to Come. A History of the Future of Food (University of California Press, 2006) 219–61Google Scholar.
28 Nick, J Fox and Katie, Ward, ‘Pharma in the bedroom…and the kitchen…The pharmaceuticalisation of daily life’ in Simon, J Williams, Jonathon, Gabe and Peter, Davis (eds), Pharmaceuticals and Society. Critical Discourses and Debates (Wiley-Blackwell, 2009) 41Google Scholar.
29 Red Bull's reference to illegal drugs was no accident — Red Bull's marketing campaign mimicked the marketing and distribution of illicit psychoactive drugs: ‘Word of mouth — the hushed advice in the tavern, the graffiti in the pissoir — is … ancient and fundamental. Drugs and their affiliated pleasures are self-advertising, especially within deviant hedonic subcultures': David, T Courtwright, The Forces of Habit: Drugs and the Making of the Modern World (Harvard University Press, 2001) 104Google Scholar. Instead of media advertising, Red Bull relied on ‘seeding’ and word of mouth whereby cans of Red Bull were originally released only in select venues and to select celebrities, trendsetters and early adopters. Red Bull was sold in a smaller can than other soft drinks and was considerably more expensive thus signalling the idea that Red Bull was strong and that even a small amount would have a significant effect. For many people between the ages of seventeen and seventy the connection between Red Bull and illicit psychoactive drugs seemed clear. Red Bull didn't promise to make you healthy, Red Bull promised to get you high: ‘Red Bull gives you wiings’ or ‘Red Bull verleiht Flüüügel’ in the original German. See Richard R Johnson, Red Bull (Darden Business Publishing, 2002) as one of the many analyses of Red Bull's marketing campaign.
30 Coca-Cola's own rumour website has this ‘response’ regarding the alleged aphrodisiac qualities of Coca-Cola:
'Some people have been led to believe that combining Coca-Cola with MSG (monosodium glutamate, a flavor enhancer) creates an aphrodisiac. Our Response: MSG is a flavor enhancer used in many foods, but is not an ingredient in Coca-Cola. There is no factual or scientific basis for concluding that Coca-Cola is an aphrodisiac — whether or not it is combined with MSG.'
See Products and Packaging Rumours (2011) Coca-Cola <http://www.thecoca-colacompany.com/contactus/myths_rumors/packaging.html>.
31 Mintz, above n 1.
32 Sidney W Mintz originally referred to these foods with the ‘somewhat nastier’ term, ‘proletarian hunger-killers’ in 1966, a term which unsurprisingly did not survive the later general turn from Marx. See Sidney, W Mintz, ‘Time Sugar and Sweetness’ in Carole, Counihan and Penny, Van Esterik (eds), Food and Culture. A Reader ( Routledge, 1977, 359–60Google Scholar citing his own work, Sidney W Mintz, ‘The Carribbean as a Socio-cultural area’ (1966) Cahiers d'Histoire Mondiale IX.
33 Roland, Barthes, ‘Toward a Psychosociology of Contemporary Food Consumption’ in Carole, Counihan and Penny, Van Esterik (eds), Food and Culture. A Reader (Routledge, 1997, [trans] 24-25Google Scholar.
34 Ibid.
35 The drug/food interface debate considers the broader regulatory debate as to which regulatory agency should regulate the product in question. This is not my question in this article.
36 Consumer Information: Caffeine (August 2011) Food Standards Australia New Zealand <http://www.foodstandards.gov.au/consumerinformation/caffeine/>; Expert Working Group on Caffeine, Safety Aspects of Dietary Caffeine – Report from the Expert Working Group (June 2000) Food Standards Australia New Zealand <http://www.foodstandards.gov.au/_srcfiles/EWG_Dietary_caffeine.pdf>; Caitlin Reid, Truth about Coffee (August 2009) Coffee Wellbeing <http://coffeewellbeing.com.au/truth-about-coffee/>; NUTTAB 2010 (2010) Food Standards Australia New Zealand <http://www.foodstandards.gov.au/consumerinformation/nuttab2010/>.
37 Volume 1, Food Standards Code Standard A6, Standard 04, Standard 01.
38 Today Food Standard 1.3.1 ‘Food Additives’ provides that caffeine may be added to kola drinks to the level of 145 mg/l but explicitly excludes its addition to infant food, vinegar, beer and related products.
39 Volume 1, Food Standards Code Standard A6, Standard 04, Standard 01.
40 The Codex Alimentarius does not contain any prescribed level for caffeine and the international range of permitted caffeine was about 150 to 300 mg/l.
41 The Trans-Tasman Mutual Recognition Act 1997 (Cth), which gave effect to this agreement is arguably narrower and provides that ‘goods produced in or imported into New Zealand, that may lawfully be sold in New Zealand… may…be sold in an Australian jurisdiction': s 10. In 2011 the Administrative Appeals Tribunal determined that the transitory unloading of Red Bull cans in New Zealand did not amount to ‘ importation’ and therefore Red Bull cans transmitted through New Zealand were not protected under the agreement: Red Bull (Australia) Pty Ltd and Secretary, Department of Agriculture, Fisheries and Forestry [2011] AATA 157 (10 March 2011).
42 Red Bull (Australia) Pty Ltd, ‘Application A394 – Formulated Caffeinated Beverages (Energy Drinks)', application to Food Standards Australia New Zealand, 13 May 1999.
43 The enforcement of food standards is the responsibility of State based organisations rather than Food Standards Australia New Zealand.
44 Food Standards Australia New Zealand Act 1991 (Cth) s 4 defines the Australia New Zealand Food Standards Code as:
the code published under the name Food Standards Code in the Gazette on 27 August 1987 together with any amendments of the standards in that code: (a) approved by a former Council before this Act commenced and published in the Gazette as forming part of that code; or (b) made under this Act.
45 Australian Government Department of Health and Ageing, The Australian and New Zealand Food Regulation Ministerial Council <http://www.health.gov.au/internet/main/publishing.nsf/Content/foodsecretariat-anz.htm>.
46 Expert Working Group, The Safety Aspects of Dietary Caffeine, above n 36.
47 See Food Standards Australia New Zealand, The Analysis of Food-Related Health Risks (February 2009) <http://www.foodstandards.gov.au/_srcfiles/Food%20Related%20Health%20Risks%20WEB_FA.pdf>.
48 It could even be argued that the fact that the code allowed caffeine to be added to kola drinks but not to non-kola drinks was a reflection of the traditional place of Coca Cola, Pepsi and other caffeinated kola drinks in the food culture of the time.
49 Food Standards Australia New Zealand, above n 47, 8.
50 Ibid.
51 Australian Bureau of Statistics, ‘Trends in Household Work’ (2009) Australian Social Trends 4102.0. The British figures are possibly worse with the Department of Health quoted as saying that 20 minutes per day was spent on food preparation (compared to two hours per day in 1980): Jeremy Laurance, ‘Exposed: myth that convenience food is unhealthy', The Independent (online), 2 February 2008 <http://www.independent.co.uk/life-style/health-and-families/health-news/exposed-myth-that-convenience-food-is-unhealthy-777191.html>.
52 Food Standards Australia New Zealand, above n 47, 9.
53 Developed by the Australia and New Zealand Food Regulation Ministerial Council established under the Food Regulation Agreement between the Commonwealth, the States, Territories and New Zealand, in April 2003 for the purpose of ‘limit[ing] the exposure of vulnerable individuals to foods containing caffeine.'
54 Ibid.
55 This difference is acknowledged by FSANZ:
'The Codex framework is essentially a decision-making framework that allows separation of the scientific aspects of risk analysis from the broad range of factors which impact on the ultimate risk management decisions. While the Codex defines the risk management process as primarily policy-based, within FSANZ it is recognised that scientific approaches may also be used to inform the selection of risk management options': Food Standards Australia New Zealand, above n 47, 14.
56 Ibid.
57 It is interesting to note that the factual question of whether the caffeine in Coca-Cola was harmful was not determined by the court in the famous case of United States v Forty Barrels and Twenty Kegs of Coca Cola 241 US 265 (1916) although, as a result of the case, the Coca-Cola company did agree to reduce the caffeine content in Coke.
58 Although they did note that there was insufficient evidence to make this judgement in relation to children. Expert Working Group above n 36, B4.0 ‘Overall conclusion'.
59 Jack E James, Safety Aspects of Dietary Caffeine: A Commentary on the Final Report of the ANZFA Expert Working Group on Caffeine (22 June 2000) Food Standards Australia New Zealand <http://www.foodstandards.gov.au/_srcfiles/EWG_Dietary_caffeine.pdf>.
60 Different principles apply for microbiological hazards (such as salmonella) and nutrient hazards (such as the risk of excessive or deficient intakes of nutrients if foods are supplemented).
61 See Walter, Pagel, Paracelsus: An Introduction to Philosophical Medicine in the Era of the Renaissance (Karger, 2nd ed, 1982)Google Scholar; Chapter One, ‘Mind and Molecule: Neurotransmission in Context', in Daniel M Perrine, The Chemistry of Mind-Altering Drugs: History, Pharmacology and Cultural Context, (American Chemical Society, 1996), 27–29 and n 53 for a discussion of toxicity and Paracelsus.
62 Daniel Perrine gives a simple example of toxicity testing in practice based on what is called the LD50 or the lethal dose for 50% of the population in which one seeks to calculate the dosage at which 50% of the population will die: Above n 61, 27-29.
63 FSANZ, above n 47, 34.
64 Ibid 33.
65 See Food Standards Australia New Zealand, Final Assessment Report, Proposal P278: Use of Nicotine and Nicotiana species in food (4 August 2004) <http://www.foodstandards.gov.au/_srcfiles/P278_Nicotine_FAR_Final.pdf.> The proposal was developed in the face of international attempts to deliver nicotine in foods such as bottled water and lollipops.
66 Food Standards Australia New Zealand, The Analysis of Food-Related Health Risks (February 2009), p 12 <http://www.foodstandards.gov.au/_srcfiles/Food%20Related%20Health%20Risks%20WEB_FA.pdf>.
67 Food Standards Australia New Zealand Act 1991 (Cth) s 3.
68 Mark, Lawrence, ‘Reflections on Public Health Policy in the Food Regulatory System: Challenges, and Opportunities for Nutrition and Food Law Experts to Collaborate’ (2009) 14(2) Deakin Law Review 298, 405Google Scholar.
69 Julie, A Caswell and Daniel, I Padberg, ‘Toward a More Comprehensive Theory of Food Labels’ (1992) 74(2) American Journal of Agricultural Economics 460Google Scholar.
70 See Debra, Jones Ringold, ‘Boomerang Effects in Response to Public Health Interventions: Some Unintended Consequences in the Alcoholic Beverage Market’ (2002) 25 Journal of Consumer Policy 27Google Scholar. See also S, Brehm and J W, Brehm, Psychological reactance: a theory of freedom and control (Academic Press, 1981)Google Scholar.
71 Delvina, Gorton Nutrition labelling: Update of scientific evidence on consumer use and understanding of nutrition labels and claims (Report prepared for New Zealand Food Safety Authority and the Ministry of Health 2007)Google Scholar.
72 Michael, Heasman and Tim, Lang, Food Wars: The Global Battle for Mouths, Minds and Markets (Earthscan, 2004) 202Google Scholar.
73 Donella Meadows, Leverage Points: Places to Intervene in a System (1999) The Sustainability Institute <http://www.sustainabilityinstitute.org/pubs/Leverage_Points.pdf>.
74 Food Standards Australia New Zealand, ‘Application A394: Formulated Caffeinated Beverages’ (Inquiry Report 22/02, 8 August 2001).
75 Ibid 11.
76 The Australia and New Zealand Food Regulation Ministerial Council, Policy Guideline: Fortification of Food with Vitamins and Minerals (2009) <http://www.health.gov.au/internet/main/publishing.nsf/Content/00E8A0712A1A5C3BCA2578A7007FBE77/$File/Policy-Guideline-for-the-fortification-of-food-with-vitamins-and-minerals%20-%20amended-Oct-2009.pdf>
77 Ibid 21.
78 Food Standards Australia New Zealand, above n 74, 22. See also Debra Jones Ringold, above n 70, 27.
79 There were a number of submissions regarding Red Bull's claims. These did not challenge the claims on the basis that they were untrue but on the basis that they made the product more attractive to children.
80 A ‘physiological effect’ was interpreted broadly in Re Johnson and Johnson Australia Pty Ltd and Minister of Aged, Family and Health Services [1992] AATA 297 where it was held that tampons are therapeutic goods on the basis that they ‘influence, inhibit and modify a physiological process in persons'.
81 Red Bull, as we have seen, is not a traditional food in Australia or New Zealand but is a good for which there is now a prescribed standard. Food is defined broadly and inclusively in Food Standards Australia New Zealand Act 1991 (Cth) s 5 to include: any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and (b) any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and (c) any substance used in preparing a substance or thing referred to in paragraph (a); and (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and (e) any substance or thing declared to be a food under a declaration in force under section 6. (It does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption.) (2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989. (3) To avoid doubt, food may include live animals and plants.
82 I will use the generic term ‘health claim’ to refer to health claims and nutrition content claims. The standard also covers endorsements of foods.
83 The Policy gives the following two examples. ‘This food is high in S that may help reduce your risk of G disease. People with G disease should eat a varied diet low in A and B and high in S, X and Y.’ and ‘This food contains X which may improve Y when eaten as part of a varied diet low in A and B and high in X and C.’ See ‘Claim Pre-requisites', Australia and New Zealand Food Regulation Ministerial Council, Policy Guideline on Nutrition, Health and Related Claims (2 July 2004) Food Standards Australia New Zealand <http://www.foodstandards.gov.au/_srcfiles/Revised%20Health%20Claims%20Policy%20Guideline%201%20July%2004.pdf.>.
84 Alternatively, if the nutrition content is defined to allow energy drinks to carry health claims the wording of the claims would simply be changed to refer to the place of energy drinks within the total diet, assuming that the expert committee's finding on caffeine's efficacy is accepted. However, given that FCBs are already excluded from the definition of ‘claimable foods’ it is unlikely that either FSANZ or the Ministerial Council would favour this approach in a new health claims standard.
85 Australia and New Zealand Food Regulation Ministerial Council Communiqué, 11 May 2011, <http://www.foodstandards.gov.au/scienceandeducation/newsroom/mediareleases/mediareleases2011/australiaandnewzeala5154.cfm>.