Explanatory Statement
Food Standards Australia New Zealand Act 1991
Food Standards (Proposal P1056 – Caffeine review) Variation
1. Authority
Section 13 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act) provides that the functions of Food Standards Australia New Zealand (the Authority) include the development of standards and variations of standards for inclusion in the Australia New Zealand Food Standards Code (the Code).
Division 2 of Part 3 of the FSANZ Act specifies that the Authority may prepare a proposal for the development or variation of food regulatory measures, including standards. This Division also stipulates the procedure for considering a proposal for the development or variation of food regulatory measures.
The Authority prepared Proposal P1056 to review permissions for caffeine in sports foods and in the general food supply; and consider the risk caffeine poses to sensitive sub-populations. The Authority considered the Proposal in accordance with Division 2 of Part 3 and has approved a draft variation – the Food Standards (Proposal P1056 – Caffeine review) Variation (approved draft variation).
Following consideration by the Food Ministers’ Meeting (FMM), section 92 of the FSANZ Act stipulates that the Authority must publish a notice about the approved draft variation.
2. Variation is a legislative instrument
The approved draft variation is a legislative instrument for the purposes of the Legislation Act 2003 (see section 94 of the FSANZ Act) and be publicly available on the Federal Register of Legislation (www.legislation.gov.au).
This instrument is not subject to the disallowance or sunsetting provisions of the Legislation Act 2003. Subsections 44(1) and 54(1) of that Act provide that a legislative instrument is not disallowable or subject to sunsetting if the enabling legislation for the instrument (in this case, the FSANZ Act): (a) facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States; and (b) authorises the instrument to be made for the purposes of the scheme. Regulation 11 of the Legislation (Exemptions and other Matters) Regulation 2015 also exempts from sunsetting legislative instruments a primary purpose of which is to give effect to an international obligation of Australia.
The FSANZ Act gives effect to an intergovernmental agreement (the Food Regulation Agreement) and facilitates the establishment or operation of an intergovernmental scheme (national uniform food regulation). That Act also gives effect to Australia’s obligations under an international agreement between Australia and New Zealand. For these purposes, the Act establishes the Authority to develop food standards for consideration and endorsement by the FMM. The FMM is established under the Food Regulation Agreement and the international agreement between Australia and New Zealand, and consists of New Zealand, Commonwealth and State/Territory members. If endorsed by the FMM, the food standards on gazettal and registration are incorporated into and become part of Commonwealth, State and Territory and New Zealand food laws. These standards or instruments are then administered, applied and enforced by these jurisdictions’ regulators as part of those food laws.
3. Purpose
The Authority has approved a draft variation to amend the Code to: prohibit a food for retail sale being caffeine or containing caffeine as an ingredient or component unless expressly permitted the Code; and to provide an express permission for formulated supplementary sports foods to contain caffeine, subject to compositional, labelling and packaging requirements, including the provision of advisory and warning statements. The aim is to address the risk caffeine poses to sensitive sub-populations including pregnant women, children and athletes. The approved draft variation also makes other amendments to the Code as a consequence of the above amendments.
4. Documents incorporated by reference
The approved draft variation does not incorporate any documents by reference.
5. Consultation
In accordance with the procedure in Division 2 of Part 3 of the FSANZ Act, the Authority’s consideration of Proposal P1056 included two rounds of public comment following an assessment and the preparation of a draft variation and associated assessment summaries.
The first call for submissions was issued on 19 December 2022 and ended on 13 February 2023. The second call for submissions was issued on 4 March 2025 and ended on 15 April 2025.
After consideration of submissions to the second call for submissions, FSANZ sought submissions on amendments to the draft variation proposed in the second call for submissions via a public consultation paper from 31 October to 12 December 2025.
Further details of the consultation process, the issues raised during consultation and by whom, and the Authority’s response to these issues are available in an approval report published on the Authority’s website at www.foodstandards.gov.au.
The Office of Impact Analysis (OIA) has exempted FSANZ from the need to prepare a Consultation Regulation Impact Statement (CRIS) in relation to the regulatory change proposed. The OIA was satisfied that the function of a CRIS will be achieved through the consultation undertaken by FSANZ under the FSANZ Act (CRIS reference number: OIA24-07750). A Decision Regulation Impact Statement (DRIS) was prepared by the Authority and the DRIS has been assessed by the OIA as compliant (DRIS reference number: OBPR22-03666).
6. Statement of compatibility with human rights
This instrument is exempt from the requirements for a statement of compatibility with human rights as it is a non-disallowable instrument under section 44 of the Legislation Act 2003.
7. Variation
References to ‘the variation’ in this section are taken to be references to the approved draft variation.
Clause 1 of the variation provides that the name of the variation is the Food Standards (Proposal P1056 – Caffeine review) Variation.
Clause 2 of the variation provides that the Code is amended by the Schedule to the variation.
Clause 3 of the variation provides that the variation commences on the date of gazettal of the instrument.
Clause 4 of the variation provides a transitional arrangement.
Subclause 4(1) provides that the stock-in-trade exemption provided by section 1.1.1—9 of Standard 1.1.1 does not apply to any of the amendments made by the variation.
Instead, subclauses 4(2) and (3) provide a transitional arrangement where during a 24 month transition period commencing on the date of gazettal of the variation, a food product may be sold if the product complies with either: the Code as in force without the amendments made by the variation; or the Code as amended by the variation.
8. Schedule to the variation
Standard 1.1.1 – Structure of the Code and general provisions
Items [1] to [3] of the Schedule to the variation amend Standard 1.1.1 of the Code.
Standard 1.1.1 contains (among other things) general provisions applying to the Code.
Items [1] and [2] amend section 1.1.1—10.
Section 1.1.1—10 sets general requirements in relation to food for sale, including that food for sale must comply with all relevant compositional, labelling, information and packaging requirements in the Code.
Item [1] amends paragraph 1.1.1—10(5)(g) by repealing the paragraph and substituting it with an amended paragraph 1.1.1—10(5)(g).
Subsection 1.1.1—10(5) prohibits food for sale from being any of the food listed in the subsection—unless expressly permitted by the Code
The current paragraph 1.1.1—10(5)(g) prohibits – except where expressly permitted by the Code – a food for retail sale in which caffeine is present at a concentration of:
- 5% or greater—if the food is a solid or semi-solid food; and
- 1% or greater—if the food is a liquid food.
This paragraph is repealed and substituted with an amended paragraph.
Amended paragraph 1.1.1—10(5)(g) refers instead to: ‘if the food is for retail sale—a *prescribed caffeine product.’.
The amended paragraph prohibits a prescribed caffeine product being a food for retail sale unless expressly permitted by the Code. This is a new prohibition.
Subsection 1.1.2—2(3) of the Code defines what is a prescribed caffeine product for the purposes of paragraph 1.1.1—10(5)(g). The definition lists caffeine (1,3,7-trimethylxanthine) and guarana extract as prescribed caffeine products. This definition is a new definition in Standard 1.1.2 (see Item [5] of the Schedule below).
The effect of the above is to prohibit caffeine (1,3,7-trimethylxanthine) and guarana extract being a food for retail sale or sold as a food at retail sale unless that sale is expressly permitted by the Code.
Guarana extract is defined in Standard 1.1.2 (see item [6] below).
Item [2] amends paragraph 1.1.1—10(6)(j) by repealing the paragraph and substituting it with an amended paragraph 1.1.1—10(6)(j) and a new paragraph 1.1.1—10(6)(k) followed by an example.
Subsection 1.1.1—10(6) prohibits a food for sale from having, as an ingredient or a component, any of the substances listed in the subsection—unless expressly permitted by the Code.
Amended paragraph 1.1.1—10(6)(j) is identical to the existing paragraph 1.1.1—10(6)(j) except the amended paragraph ends in a semi-colon (;) and not a full stop. The existing paragraph is the last entry for subsection 1.1.1—10(6) and as such, it currently ends in a full stop. To insert new paragraph 1.1.1—10(6)(k) – paragraph 1.1.1—10(6)(j) must be amended so it ends in a semi-colon instead.
New paragraph 1.1.1—10(6)(k) refers to: ‘if the food is for retail sale—caffeine from any source.’.
The proposed amendment prohibits a food for retail sale from having caffeine from any source as an ingredient or a component—unless expressly permitted by the Code. This is a new prohibition.
The example inserted after paragraph 1.1.1—10(6)(k) is an example of a food for retail sale having caffeine as an ingredient or a component. The example is:
- A food for retail sale that contains caffeine as an ingredient or component as a result of the addition of caffeine (1,3,7-trimethylxanthine) or of a plant extract including but not limited to guarana extract.
Guarana extract is defined in Standard 1.1.2 (see item [6] below).
Item [3] inserts the following after subsection 1.1.1—10(7):
two examples for the purposes of that subsection, and
new provision - subsection 1.1.1—10(7A).
Subsection 1.1.1—10(7) provides an exemption to the prohibitions imposed by subsection 1.1.1—10(6). Subsection 1.1.1—10(7) states that subsection 1.1.1—10(6) does not apply to a substance that is in a food for sale, or in an ingredient of a food for sale, by natural occurrence.
The term ‘natural occurrence’ is not defined in the Code and is to be given its ordinary meaning.
The examples inserted after subsection 1.1.1—10(7) relate to caffeine present as an ingredient in a food for sale and is provided for the purposes of new paragraph 1.1.1—10(6)(k).
Paragraph 1.1.1—10(6)(k) prohibits a food for retail sale from having caffeine as an ingredient or a component of a food for sale—unless expressly permitted by the Code. Subsection 1.1.1—10(7) provides that paragraph 1.1.1—10(6)(k) does not apply to caffeine in a food for sale, or in an ingredient of a food for sale, by natural occurrence.
The first example explains:
- Caffeine present in a food for sale, or in an ingredient of a food for sale, as a result of the addition of cocoa, chocolate, coffee or tea; is caffeine that is in the food for sale or the ingredient by natural occurrence. The caffeine occurs naturally in the cocoa, chocolate, coffee or tea. Subsection 1.1.1—10(7) will therefore apply to and exempt that caffeine from the prohibition imposed by new paragraph 1.1.1—10(6)(k).
The second example explains:
- Caffeine in a food for sale, or in an ingredient of a food for sale, as a result of the addition of caffeine (1,3,7-trimethylxanthine) is not caffeine in the food for sale or the ingredient by natural occurrence. The caffeine does not occur naturally in the food for sale or the ingredient of the food for sale. Subsection 1.1.1—10(7) will therefore not apply and that caffeine will not be exempt from the prohibition imposed by new paragraph 1.1.1—10(6)(k).
New subsection 1.1.1—10(7A) states that subsection 1.1.1—10(7) does not apply to caffeine present in a food for sale, or in an ingredient of a food for sale, as a result of the addition of guarana extract. The new subsection makes clear that caffeine from guarana extract in a food for retail sale is subject to the requirement imposed by new paragraph 1.1.1—10(6)(k). It is not exempted by subsection 1.1.1—10(7).
Guarana extract is defined in Standard 1.1.2 (see item [6] below).
Standard 1.1.2 – Definitions used throughout the Code
Items [4] to [7] of the Schedule to the variation amends Standard 1.1.2 of the Code.
Standard 1.1.2 sets out definitions of terms used in the Code—unless the contrary intention is expressed elsewhere in the Code.
Item [4] amends paragraph (e) of the definition of warning statement in subsection 1.1.2—2(3).
Warning statement is defined, for the purposes of food for sale as meaning a statement about a particular aspect of the food that is required to be expressed in the words set out in the provisions listed in the definition. Paragraph (e) of this definition refers to subparagraph 2.9.4—4(1)(a)(iii) or 2.9.4—4(1)(a)(iv), which relates to warning statements for formulated supplementary sports food.
Item [4] repeals paragraph (e) and substitutes the repealed paragraph with a new paragraph (e). New paragraph (e) refers to subparagraphs 2.9.4—4(1)(a)(iii) and 2.9.4—4(1)(a)(v); as well as sub-subparagraph 2.9.4—4(1)(a)(iv)(B).
This amendment is consequential to the amendment proposed in item [14], which amends existing requirements in paragraph 2.9.4—4(1)(a) for warning statements on formulated supplementary sports foods; and adds a new requirement for an alternative warning statement on such foods (see item [14] below for details).
The effect of the amendment in item [4] is that the definition of warning statement in Standard 1.1.2 includes the new warning statement required in paragraph 2.9.4—4(1)(a).
Item [5] inserts a new definition into subsection 1.1.2—2(3): the definition of prescribed caffeine product.
The new definition states that prescribed caffeine product means any of the following: caffeine (1,3,7-trimethylxanthine), and guarana extract.
This amendment is related to the amendment in item [1] above.
Item [6] inserts a new definition into subsection 1.1.2—3(2): the definition of guarana extract. This new definition states that guarana extract means a product that:
(a) is produced from guarana seeds by use of an extraction process; and
(b) contains caffeine at a concentration of:
(i) 5% or more—if the product is in a solid or semi-solid form; and
(ii) 1% or more—if the product is in a liquid form.
The reference to products in solid or semi-solid form includes powdered forms.
This amendment is related to the amendments in items [3] and [5].
Item [7] inserts a new definition to subsection 1.1.2—3(2): the definition of high caffeine coffee beverage.
The new definition states that high caffeine coffee beverage means a food for retail sale that:
(a) is a beverage, and
(b) is in a package, and
(c) bears a label with a nutrition information pane, and
(d) contains coffee, and
(e) contains no less than 200 mg caffeine per serving, and
(f) is not a formulated caffeinated beverage nor a formulated supplementary sports food.
This amendment is related to the amendment in item [8] and [17] below.
Standard 1.2.1 – Requirements to have labels or otherwise provide information
Items [8] and [9] amend section 1.2.1—8.
Subsection 1.2.1—6(1) of the Code provides that, if a food for retail sale is in a package, it must bear a label with the information referred to in subsection 1.2.1—8(1) unless certain exemptions apply.
Bear a label is defined in Standard 1.1.2 of the Code.
Item [8] repeals paragraph 1.2.1—8(1)(za) and substitutes the repealed paragraph with an amended paragraph (za) and a new paragraph (zb)
Amended paragraph 1.2.1—8(1)(za) is identical to the existing paragraph 1.2.1—8(1)(za) except the amending paragraph ends in a semi-colon (;) and not a full stop. The existing paragraph is the last entry for subsection 1.2.1—8(1) and, as such, currently ends in a full stop. To insert new paragraph 1.2.1—8(1)(zb) – paragraph 1.2.1—8(1)(za) must be amended so it ends in a semi-colon instead.
New paragraph 1.2.1—8(1)(zb) lists the following required information for high caffeine coffee beverages: declarations of average quantities in accordance with subsection 2.10.4—3A(1); and advisory statements in accordance with subsection 2.10.4—3A(2).
Subsection 1.1.2—2(3) sets out a definition of average quantity of a substance in a food. The definition states that average quantity of a substance in a food means the average, for such foods from that producer or manufacturer, of: (a) where a serving or reference amount is specified—the amount of the substance that such a serving or reference amount contains; or (b) otherwise—the proportion of that substance in the food, expressed as a percentage.
This amendment is related to the amendment proposed in item [18] below.
Item [9] repeals subsection 1.2.1—8(3) and substitutes the repealed subsection with an amended subsection 1.2.1—8(3).
Subsection 1.2.1—8(3) lists the information that subsection 1.2.1—6(3) requires be stated on the label of certain individual portion packs sold as part of a packaged food for retail sale. In existing subsection 1.2.1—8(3), the types of information required are the warning statements and declarations made in accordance with sections 1.2.3—3 and 1.2.3—4 respectively.
Amended subsection 1.2.1—8(3) includes a reference to subsection 2.10.4—3A(2), thereby requiring advisory statements required by subsection 2.10.4—3A(2) to also be included on the label of the individual portion packs for retail sales of food.
This amendment is also related to the amendment in item [18] below.
Standard 1.5.1 – Novel foods
Items [9] of the Schedule to the variation amend Standard 1.5.1 of the Code, by inserting new subsection 1.5.1—3(3) into that Standard. The new subsection is added at the end of section 1.5.1—3.
Standard 1.1.1 provides that a food for retail sale must not be, or have as an ingredient or component, a novel food unless expressly permitted by the Code. Standard 1.5.1 sets out when and how a novel food is permitted for this purpose. Section 1.1.2—8 of the Code defines what is a novel food for the purposes of the Code.
New subsection 1.5.1—3(3) provides that, despite any other provision of the Code, a food for retail sale must not have as an ingredient or component, caffeine from a novel food unless that novel food has been listed in the table to section S25—2 of the Code as a permitted novel food and any conditions of use specified in that section for that food are complied with.
The amendment clarifies that a provision in the Code permitting a food for retail sale to contain caffeine from any source as an ingredient or component does not extend to a novel food containing caffeine (unless that novel food is listed in the table to section S25—2 of the Code). Premarket assessment and approval as a novel food will therefore also be required.
Standard 2.9.4 – Formulated supplementary sports foods
Items [11] to [16] of the Schedule to the variation amend Standard 2.9.4 of the Code.
Standard 2.9.4 sets out compositional and labelling requirements for formulated supplementary sports food.
Formulated supplementary sports food is defined in subsection 1.1.2—3(2) as meaning a product that is specifically formulated to assist sports people in achieving specific nutritional or performance goals.
Items [11] to [13] amend section 2.9.4—3.
Section 2.9.4—3 sets compositional requirements for formulated supplementary sports food. Subsection 2.9.4—3(1) list substances that formulated supplementary sports food may contain.
Item [11] amends subparagraph 2.9.4—3(1)(c)(ii) by repealing the subparagraph and substituting it with an amended subparagraph (ii) and a new paragraph 2.9.4—3(1)(d).
Amended subparagraph 2.9.4—3(1)(c)(ii) is identical to the existing subparagraph 2.9.4—3(1)(c)(ii) except the amended subparagraph ends in a semi-colon (;) and not a full stop. The existing subparagraph is the last entry for subsection 2.9.4—3(1) and, as such, currently ends in a full stop. To insert new paragraph 2.9.4—3(1)(d) – the subparagraph must be amended so it ends in a semi-colon instead.
New paragraph 2.9.4—3(1)(d) refers to ‘caffeine’ as a substance that formulated supplementary sports food may contain.
The effect of the amendment is that formulated supplementary sports food may contain (among other things) caffeine in accordance with the Code i.e., the addition of caffeine in a formulated supplementary sports food by a food business is voluntary.
However, if a food business adds caffeine to a formulated supplementary sports food—the food business must comply with all relevant compositional and labelling requirements in Standard 2.9.4 (see, for example, the new requirements in item [15] below).
Item [12] amends paragraph 2.9.4—3(2)(b) by repealing the paragraph and substituting it with an amended paragraph 2.9.4—3(2)(b) and a new paragraph 2.9.4—3(2)(c).
Subsection 2.9.4—3(2) sets out what a formulated supplementary sports food must not contain in a one-day quantity.
One-day quantity, in relation to a formulated supplementary sports food, is defined in subsection 1.1.2—2(3) of the Code as meaning the amount of that food which is to be consumed in one day in accordance with directions specified in the label.
Amended paragraph 2.9.4—3(2)(b) is identical to the existing paragraph 2.9.4—3(2)(b) except the amended paragraph ends in a semi-colon (;) and not a full stop. The existing paragraph is the last entry in subsection 2.9.4—3(2) and as such, ends in a full stop. To add new paragraph 2.9.4—3(2)(c) – paragraph 2.9.4—3(2)(b) must be amended so the paragraph ends with ‘; or’.
New paragraph 2.9.4—3(2)(c) refers to: ‘200 mg caffeine in total, from any source.’.
The effect of the amendment in item [12] is that a formulated supplementary sports food must not contain, in a one-day quantity, (among other things) more than 200 mg of caffeine in total from any source.
‘In total, from any source’ includes all caffeine that is permitted by the Code to be present in the food. This includes caffeine present by natural occurrence (see item [3] above).
Item [13] inserts new subsection 2.9.4—3(3) into Standard 2.9.4.
Section 2.9.4—3 sets out compositional requirements for formulated supplementary sports food.
New subsection 2.9.4—3(3) sets a new compositional requirement for a formulated supplementary sports food, which is subject to paragraph 2.9.4—3(2)(c).
New subsection 2.9.4—3(3) prohibits formulated supplementary sports food from containing caffeine in total, from any source, at a concentration of:
- 5% or more for formulated supplementary sports food in a powdered form;
- 1% or more for formulated supplementary sports food in a liquid form.
New subsection 2.9.4—3(3) provides that this compositional requirement applies subject to paragraph 2.9.4—3(2)(c), which prohibits a formulated supplementary sports food from containing, in a one-day quantity, more than 200 mg of caffeine in total from any source.
Subsection 1.1.1—10(3) of the Code requires a food for sale - including formulated supplementary sports food – to comply with compositional requirements set by the Code – including by the new subsection – relating to this kind of food.
The intent of new subsection 2.9.4—3(3) is to prohibit the sale of powdered forms of FSSF containing caffeine at a concentration of 5% or more, or of liquid forms of FSSF containing caffeine at a concentration of 1% or more. These limits are commensurate with the safe maximum concentration limits identified in P1054.
Items [14] and [15] amend section 2.9.4—4.
Section 2.9.4—4 sets labelling information requirements for formulated supplementary sports food.
Subsections 1.1.1—10(8) and 1.1.1—10(9) of the Code requires a food for sale - including formulated supplementary sports food – to comply with labelling and compositional requirements, which apply to that food.
Item [14] amends subparagraphs 2.9.4—4(1)(a)(iii) and (iv) by repealing those subparagraphs and substituting those subparagraphs with new subparagraphs 2.9.4—4(1)(a)(iii), (iv) and (v).
Existing subparagraphs 2.9.4—4(1)(a)(iii) and (iv) respectively set out the following mandatory warning statements for formulated supplementary sports food:
- the warning statement ‘Not suitable for children under 15 years of age or pregnant women: Should only be used under medical or dietetic supervision’; and
- if the food contains added phenylalanine—the warning statement ‘Phenylketonurics: Contains phenylalanine’.
Warning statement is defined in Standard 1.1.2 (see item [4] above).
Amended subparagraph 2.9.4—4(1)(a)(iii) instead states: ‘if the food is a food to which subsection (3) applies – the *warning statement ‘Not suitable for children under 15 years of age or pregnant women: Should only be used under medical or dietetic supervision’; and’.
The warning statement itself is the same, but that statement would only be required if the formulated supplementary sports food is listed in new subsection 2.9.4—4(3) (see item [15] below).
Amended subparagraph 2.9.4—4(1)(a)(iv) states: ‘if the food 'is a food to which subsection (4) applies:
(A) an advisory statement to the effect that the food contains caffeine; and
(B) the warning statement ‘Not suitable for children under 15 years of age, or pregnant or breastfeeding women: Should only be used under medical or dietetic supervision’; and’.
Amended subparagraph 2.9.4—4(1)(a)(iv) requires labelling for formulated supplementary sports food that contain caffeine other than caffeine from any of the sources listed in new subsection 2.9.4—4(4) (see item [15] below) to contain the following statements:
(A) an advisory statement to the effect that the food contains caffeine; and
(B) the warning statement: ‘Not suitable for children under 15 years of age, or pregnant or breastfeeding women: Should only be used under medical or dietetic supervision’.
New subparagraph 2.9.4—4(1)(a)(v) restates existing subparagraph 2.9.4—4(1)(a)(iv). It provides that: ‘if the food contains added phenylalanine—the warning statement ‘Phenylketonurics: Contains phenylalanine’. The existing paragraph had to be renumbered as a consequence of the other amendments to paragraph 2.9.4—4(1)(a) above.
The existing requirement for the labelling for formulated supplementary sports food that contains phenylalanine to contain the warning statement: ‘Phenylketonurics: Contains phenylalanine’ continues to apply under new subparagraph 2.9.4—4(1)(a)(v).
The advisory statement and warning statements required by the amendments in item [14] would have to be made in accordance with the Code (see, for example, the legibility requirements for warning statements in section 1.2.1—25).
Item [15] inserts new subsections 2.9.4—4(3) and 2.9.4—4(4) into Standard 2.9.4.
New subsection 2.9.4—4(3) sets out that that subsection applies to the following foods:
- a formulated supplementary sports food that does not contain caffeine;
- a formulated supplementary sports food that contains caffeine only from any of the following:
- cocoa:
- chocolate;
- decaffeinated coffee containing no more than 1 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated tea containing no more than 4 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant coffee containing no more than 3 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant tea containing no more than 3 g/kg of anhydrous caffeine on a dry basis.
The effect of new subsection 2.9.4—4(3) is that the warning statement required under amended subparagraph 2.9.4—4(1)(a)(iii) (see item [14] above) only applies to a formulated supplementary sports food that is listed in new subsection 2.9.4—4(3) (see above).
New subsection 2.9.4—4(4) sets out that that subsection applies to a formulated supplementary sports food that contains caffeine other than caffeine from any of the following:
- cocoa:
- chocolate;
- decaffeinated coffee containing no more than 1 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated tea containing no more than 4 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant coffee containing no more than 3 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant tea containing no more than 3 g/kg of anhydrous caffeine on a dry basis.
The effect of new subsection 2.9.4—4(4) is that the advisory statement and warning statement required under amended subparagraph 2.9.4—4(1)(a)(iv) (see item [14] above) only applies to a formulated supplementary sports food that contains caffeine other than caffeine from any of the sources listed in new subsection 2.9.4—4(4) (see above).
Item [16] amends Standard 2.9.4 by adding new sections 2.9.4—11 and 2.9.4—12 after section 2.9.4—10.
New section 2.9.4—11 sets out nutrition information panel requirements specifically for formulated supplementary sports food that contain caffeine other than caffeine only from any of the following:
- cocoa:
- chocolate;
- decaffeinated coffee containing no more than 1 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated tea containing no more than 4 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant coffee containing no more than 3 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant tea containing no more than 3 g/kg of anhydrous caffeine on a dry basis.
New subsection 2.9.4—11(1) sets out that section 2.9.4—11 applies to a formulated supplementary sports food that contains caffeine, subject to subsection (2).
New subsection 2.9.4—11(2) sets out that section 2.9.4—11 does not apply to a formulated supplementary sports food that contains caffeine only from any of the following:
- cocoa:
- chocolate;
- decaffeinated coffee containing no more than 1 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated tea containing no more than 4 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant coffee containing no more than 3 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant tea containing no more than 3 g/kg of anhydrous caffeine on a dry basis.
New subsection 2.9.4—11(3) requires the nutrition information panel for the formulated supplementary sports food to state the average quantity of caffeine from any source in:
- a serving of the food; and
- a unit quantity of the food.
Average quantity, serving and unit quantity are terms defined in Standard 1.1.2 of the Code.
New subsection 2.9.4—11(4) specifies where the information required by new subsection 2.9.4—11(3) must be located in the nutrition information panel:
- below the information about sodium required by subparagraph 1.2.8—6(1)(d)(iii) of the Code; and
- above the information about any other nutrient or biologically active substance required by subparagraph 1.2.8—6(1)(d)(iv) of the Code.
Biologically active substance is defined in Standard 1.1.2 of the Code.
Subsections 1.1.1—10(8) and 1.1.1—10(9) of the Code requires a food for sale – including formulated supplementary sports food – to comply with relevant labelling and information requirements set by the Code, which apply to the sale of food.
Consequently, the effect of new section 2.9.4—11 is that:
- the nutrition information panel for a formulated supplementary sports food containing caffeine other than caffeine from the foods listed in new subsection 2.9.4—11(2) has to state the average quantity of caffeine in:
a serving of the food; and
a unit quantity of the food; and
- the above information has to be located in the panel:
below the information about sodium required by subparagraph 1.2.8—6(1)(d)(iii) of the Code; and
above the information about any other nutrient or biologically active substance required by subparagraph 1.2.8—6(1)(d)(iv) of the Code.
New section 2.9.4—12 sets packaging, labelling and information requirements for formulated supplementary sports food that contain caffeine in a multipack comprising of separate individual portions.
Subsections 1.1.1—10(8), (9) and (10) of the Code respectively require a food for sale – including formulated supplementary sports food – to comply with relevant labelling, information and packaging requirements set by the Code, which apply to the sale of food.
New subsection 2.9.4—12(1) provides that the new subsection applies to formulated supplementary sports food that meet each of the following criteria:
- The formulated supplementary sports food contains more than 200 mg caffeine in total, from any source.
- The formulated supplementary sports food is sold in packaging that includes individual portions of the food.
- Any one of those of individual portions meet each of the following criteria:
- The individual portion is in a solid or semi-solid form (excluding powders)
- The individual portion is not designed for individual sale.
- The individual portion does not require further preparation before consumption.
The following example of individual portions of formulated supplementary sports food is provided after subsection 2.9.4—12(1): ‘A formulated supplementary sports food sold in the form of bars, chewables or dissolvable strips’.
New subsection 2.9.4—12(2) sets out that section 2.9.4—12 does not apply to a formulated supplementary sports food that contains caffeine only from any of the following:
- cocoa:
- chocolate;
- decaffeinated coffee containing no more than 1 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated tea containing no more than 4 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant coffee containing no more than 3 g/kg of anhydrous caffeine on a dry basis;
- decaffeinated instant tea containing no more than 3 g/kg of anhydrous caffeine on a dry basis.
New subsection 2.9.4—12(3) requires a label on the outer package of the formulated supplementary sports food to contain an advisory statement to the effect that the food contains caffeine. This is the advisory statement required by sub-subparagraph 2.9.4—4(1)(a)(iv)(A).
Under subsection 1.2.1—6(2), if the food for sale has more than one layer of packaging and subsection 1.2.1—6(1) requires it to bear a label, only one label is required. New subsection 2.9.4—12(3) is therefore needed so that an advisory statement to the effect that the food contains caffeine is required both on:
the outer package of the multipack of the formulated supplementary sports food, and
each inner individual portion as required under new subsection 2.9.4—12(6) (see below).
Bear a label is defined in Standard 1.1.2 of the Code.
New subsections 2.9.4—12(4) to (7) set requirements for each individual portion that is included in the multipack of the formulated supplementary sports food to which new section 2.9.4—12 applies.
New subsection 2.9.4—12(4) requires each individual portion to be separately packaged.
New subsection 2.9.4—12(5) provides that each individual portion must not contain more than 200 mg caffeine in total, from any source.
New subsection 2.9.4—12(6) requires each individual portion – if it has a surface area of 30 cm2 or greater – to bear a label with an advisory statement to the effect that the food contains caffeine.
Bear a label is defined in Standard 1.1.2 of the Code.
New subsection 2.9.4—12(7) defines each individual portion to mean an individual portion that meets the criteria set out in paragraph 2.9.4—12(1)(c).
The intent of new section 2.9.4—12 is to manage the risk of inadvertent consumption of multiple serves of low volume, caffeinated formulated supplementary sports food.
Standard 2.10.4 – Miscellaneous standards for other foods
Items [17] and [18] of the Schedule to the variation amend Standard 2.10.4 of the Code.
Standard 2.10.4 sets out certain requirements for food sold as coffee, tea, chocolate, cocoa, gelatine and peanut butter.
Item [17] amends section 2.10.4—2.
Section 2.10.4—2 sets out copies of definitions of terms used in Standard 2.10.4 of the Code.
The amendment inserts a copy of the definition of high caffeine coffee beverage set out in subsection 1.1.2—2(3) (see item [7] above).
Item [18] inserts a new section 2.10.4—3A into Standard 2.10.4, which sets out labelling requirements for high caffeine coffee beverages.
In particular, new section 2.10.4—3A sets out – for the purposes of the labelling provisions in Standard 1.2.1 – the declarations and advisory statements required for a high caffeine coffee beverage.
New subsection 2.10.4—3A(1) provides that the declaration of average quantity required by new subparagraph 1.2.1—8(1)(za)(i) is a declaration in the nutrition information panel of the average quantity of caffeine, from any source, expressed in milligrams, in:
- a serving of the food; and
- a unit quantity of the food.
Average quantity, nutrition information panel and unit quantity are defined in Standard 1.1.2 of the Code.
New subsection 2.10.4—3A(2) provides that, for the labelling provisions in Standard 1.2.1, the advisory statements required by new subparagraph 1.2.1—8(1)(za)(ii) are statements to the effect that the food is high in caffeine and that the food is not suitable for children under 15 years of age, or pregnant or breastfeeding women.’
The effect of the amendments in items [17] and [18] are that where food is a high caffeine coffee beverage – that food is required to bear a label that provides the average quantity of caffeine in the nutrition information panel in accordance with Standards 1.2.1 and 2.10.4.
The intent of these amendments is to provide consumers of high caffeine coffee beverages with information about the amount of caffeine in these products and advise those consumers that the beverage contains caffeine at a level that is not suitable for children under 15 years of age, nor pregnant or breastfeeding women. This is consistent with the P1056 assessment indicating that such measures are a risk-proportionate approach to mitigate the risk of inadvertent overconsumption of caffeine via high caffeine coffee beverages, particularly for sensitive subpopulations.