Low-carb claims: Act fast before they’re outlawed

I recently read a statistic that over 60% of Canadians are concerned about the amount of carbohydrates they consume.

I recently read a statistic that over 60% of Canadians are concerned about the amount of carbohydrates they consume.

A walk down any grocery store aisle shows a proliferation of low-carbohydrate or carbohydrate-reduced products, which consumers are buying in droves. There are now entire grocery stores dedicated to selling foods suitable for people on low-carb diets. Even beer ads highlight the carbohydrate content of the product and I just learned that several chocolate bars will be launched in ‘low carb’ versions this summer.

And yet, on December 12, 2005 (or earlier under certain circumstances), Health Canada will be pulling the plug on any claims relating to the carbohydrate content of foods.

The new food regulations, discussed in this column in the past, set strict rules on nutrient content claims that can be made for foods. There are NO carbohydrate claims permitted. That means neither on labels nor in advertisements. Apparently, Health Canada does not believe people should restrict the amount of carbs they consume, and therefore should not have the right to know whether the food is carb-reduced or contains relatively few carbohydrates.

What will be permitted is the super sexy phrase: ’5g of carbohydrates per 125mL serving.’ You may even be able to use ’3g of carbohydrates from sugars and starches per 125mL serving,’ thereby highlighting the elements of carbohydrates that the carb-counters care about. But, according to the Guide to Food Labelling and Advertising, you cannot even add the word ‘contains’ in front of either of those phrases, as ‘contains,’ remarkably, is considered to be a prohibited characterizing claim.

So then, what is a marketer to do?

In my view the best approach is to act fast. You still have a year and a half to make low-carb and carb-reduced claims. Both claims can only be made where the food meets the requirements in the guide and the current regulations, respectively.

By way of background, ‘low-carbohydrate’ claims are currently only permitted where the food contains no more than 10% of available carbohydrates and no more than 2 grams of available carbohydrates per serving. (‘Available carbohydrates’ has been interpreted to mean carbohydrates from sugars and starches.) ‘Carbohydrate-reduced claims’ must only be used on foods that have been specifically formulated to meet a special dietary need. The original food, prior to carb reduction, must have at least 25% of its calories from carbs. When carb-reduced, the food must have at least half of the available carbs as before reduction and no more calories than the original food.

Manufacturers of low-carb foods should hit the ground running with a marketing campaign both on-pack and in various media. That way, once the new regulations kick in, a solid association will have (hopefully) been developed in the consumer’s mind between the product and low-carb foods.

Bear in mind that if a product already contains certain triggering claims or has the new nutrition facts table on the label, the company in question must already be in compliance with the new regulations and can no longer take advantage of these sorts of claims.

Even under the old regime, Advertising Standards Canada, likely due to input from the Canadian Food Inspection Agency (CFIA), is believed to be taking a strict approach to the use of the term ‘carbohydrate.’ They purportedly take the position that certain claims relating to carb-consciousness or carb awareness amount to ‘carb-reduced’ claims. Since many foods will not meet this strict approach, it seems to be unduly tying the hands of manufacturers. In my view, and likely that of Atkins, a food may not meet the definition of ‘carb-reduced’ but can still be consistent with an overall carb-conscious lifestyle.

If Canadians are interested in consuming a diet that is low in carbohydrates, why is Health Canada eliminating their right to know about it? I can appreciate the need to set standards for carbohydrate claims to ensure they have merit and a common meaning.

But, prohibiting any such claims seems inconsistent with the lifestyle trends of the people that the government is there to protect and seems unduly patronizing.

How is this protectionist view of what is ‘good’ for consumers logical, especially in light of the purported goal of the new nutrition labelling requirements, which are meant to give consumers more information so that they can make informed choices?

If the government does not change the law prior to December 12, 2005, I can only hope that the CFIA is diligent in enforcing the prohibitions against American imports that are saturating the low-carbohydrate marketplace. They appear to be pushing the envelope in terms of the use of carbohydrate claims (likely because U.S. packaging, which does not comply with Canadian laws, is improperly used here) which may be placing Canadian manufacturers at an even greater disadvantage.

Shelley Samel is an advertising and marketing lawyer at Gowling Lafleur Henderson LLP in Toronto. She can be reached at shelley.samel@gowlings.com.