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Sugars-based ingredient rules bittersweet – Regulatory Affairs – Nov/Dec 2020 – Gary Gnirss


Canada’s ingredient and nutrition labelling rules are now in the final stretch of their transition period between the former and new rules. The original transition period was scheduled to end on December 14, 2021, but both the Canadian Food Inspection Agency (CFIA) and Health Canada have made it known that this date will be extended. The chief reason for an extension is to help co-ordinate compliance dates with other rules that have been finalized and those that are also still pending registration as final rules. Most notably are CFIA’s and Health Canada’s food labelling modernization rules proposed in June 2019. Will these proposed rules be finalized soon? It is expected that the transition period will be extended to at least December 14, 2022. Certain food labelling modernization rules, such as those related to characterizing ingredients and flavours, are proposed to have an extended transition period of at least six years, circa December 14, 2026.

Sugars-based ingredient (SBI) labelling is, however, a reality now when switching over to the new rules. The purpose of making it mandatory to corral and identify SBIs is to expose sources which might be unsuspected and declare them in their collective descending of proportioning in a list of ingredients. The intent is to provide consumers a means to gauge the relative proportion of such ingredients more readily within a list of ingredients. The quantitative amount of total sugars and the new per cent daily thereof is a core feature of a new nutrition facts table (NFt). Health Canada elected not to differentiate added sugars from total sugars in the NFt, as is the case in the U.S. One argument for this was that sugar is sugar, regardless of its source. It would also have placed a burden on industry to differentiate amounts of added and intrinsic sugars in an NFt. This could only be achieved by adjusting the total sugar content by the added sugars in the formulation.

Instead, added sugars are differentiated in the ingredients list. There is still incentive for manufacturers to reduce the amount of added sugars, as no manufacturer generally likes to see SBIs declared collectively after the heading “Sugars” as the first ingredient, or even close to the first ingredient. There are however some drawbacks to this perfect plan. For one, when the content of sugar in a food is less than 0.5 g it can be rounded to zero. If a food contains a small amount of a SBI, such as maltodextrin that is not otherwise recognized as a dietary fibre, the NFt would declare 0 g sugars and the ingredient list would declare “Sugars (maltodextrin).” This is confusing. In November 2020, Health Canada issued a notice of an intent to amend the Food and Drug Regulations (FDR) in the future to provide for an exception to SBI labelling in such cases. In the interim, however, there would be no objection where SBIs are not declared as such when the amount of sugar in the NFt may be declared as zero.

However, the gate on making a “no sugar added” claim is still fiercely guarded. The addition of sugars that functionally substitute for added sugars, such as a small amount of honey, would invalidate this claim even if the total sugars are declared as zero. The current phasing of what constitutes “functionally substitute for added sugars” is not aligned with the definition of a SBI. Health Canada had however, proposed to do so. That unfortunately was part of proposed front-of-packaging nutrition symbol labelling that is now stale. One day the criteria will perhaps be aligned with SBI labelling.

There are other scenarios that are potentially confusing as well. SBI labelling is only applicable to first generation ingredients. When components of ingredients are declared parenthetically, they would not be subject to SBIs labelling. A food can therefore still have a high amount of SBIs, but because these are protected by parenthesis, would not be exposed as such.

Another drawback is that SBIs added in a small quantity get “bumped up” the list when other SBIs are also present. For example, let’s say a food contains “sugar” as the first ingredient and “maple syrup” as the last ingredient. This food must then be labelled with “Sugars (sugar, maple syrup)” as the first ingredient. Some consumers may think that the maple syrup is present in a more significant quantity than it is.

The definition of a SBI involves three tiers. The first two are generally easy to spot in a crowd. They include mono- and disaccharides, like sugar (sucrose), and sweetening agents, many of which are liquid or dried syrups including high fructose corn syrup. The last tier involves understanding what a “functional substitute for a sweetening agent” is. The definition for this in the FDR, reads, “a food — other than any sweetener or sweetening agent, including any sugars — that replaces a sweetening agent and that has one or more of the functions of the sweetening agent including sweetening, thickening, texturing or caramelizing.” What’s potentially nebulous is that a functional substitute for a sweetening agent does not have to be sweet. It can have the function of thickening, texturing or caramelizing, for example. Appreciating concentrated fruit juice as SBI seems more intuitive than non-dietary fibre-type maltodextrins. For guidance purposes, the CFIA has provided on its food labelling for industry website pages, Annex 1 of examples of SBIs and Annex 2 of what are not SBIs. Annex 2 includes foods that the CFIA believes consumers may recognize as potentially significant sources of added sugars. As such these are not subject SBI labelling. Fruit spread is in Annex 2 and fruit puree is Annex 1. Some things are harder to explain than others. New rules are not necessarily easier. 

Gary Gnirss is a partner and president of Legal Suites Inc., specializing in regulatory software and services. Contact him at [email protected]


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