Call to maintain Folic Acid standard for bread

Submission from NZORD to the New Zealand Food Safety Authority on NZFSA public discussion paper 10/09, proposed amendment to the NZ Folic Acid Standard, August 2009

This submission addresses all sections of the NZFSA Discussion Paper but does so under different headings to those in the paper. Our approach is to look at recent events that led to the issuing of this discussion paper and then relate these events to the discussion paper. Under those two headings we canvass a number of issues across the scope of the Discussion Paper. We then specifically address the legal framework and public health topics.

SUMMARY OF SUBMISSION

  1. NZORD strongly supports the retention of the status quo option. We urge the Minister to reject the option for amendment to the commencement date, and reject the option for revocation of the NZ folic acid standard.
  2. We note that the issue of public resistance to mandatory fortification is presented as a prime reason for this proposed amendment, but this resistance has been generated by a public relations campaign from industry, using selective data and misrepresentation of facts to generate a community response based on alarm and anxiety over matters of food safety.
  3. The Discussion Paper does not mention any concerns regarding food safety and as such these issues have not been put out for consultation. NZORD agrees that such issues do not need to be consulted on as they are irrelevant to the Minister’s decision. The Minister should not allow policy to be influenced by public anxiety that is based on misinformation and a deliberately orchestrated food safety scare campaign. We submit that the Minister has a duty to ignore this misinformation in her decision.
  4. The cost burdens on industry and limitation of consumer choice are matters that have already been extensively consulted on and assessed. There is no valid basis for review of these issues as there is no new information about them and no adequate time for reassessment of them.
  5. Consumer choice was extensively canvassed in the earlier consultations and expert analysis determined that the benefits and limitations can be validly argued several ways. NZORD submits that past practice in milling wheat for bread has seriously diminished the nutritional and vitamin value of the bread and that fortification would at last give us bread with better nutrition value as well as better health value through reduction of NTDs.
  6. The references in the Discussion Paper to the effectiveness of mandatory fortification are spurious grounds for reconsideration given that effectiveness of the fortification regime is clearly dealt with in the detailed assessment process already conducted. Current discussion questioning effectiveness comes only from the misleading public relations campaign from industry.
  7. A more effective regime could be developed only by increasing the level of fortification in a mandatory regime, which is one of the potential opportunities and reasons for the planned review in 2011. We submit that the evidence of less effectiveness through voluntary regimes is clearly established from definitive research considered in the earlier assessments.
  8. NZORD submits that taking into account the factors in the Food Act the Minister acting reasonably would not adopt the preferred option detailed in the Discussion Paper. The only reasonable approach is continuation of the status quo, with mandatory fortification of folate in bread being required from 27 September 2009.
  9. In addition, if the Minister does decide to issue a revised voluntary folate fortification food standard and revoke the mandatory folate fortification food standard, NZORD considers the process followed would raise a number of administrative law concerns and potentially be judicially reviewable on the grounds of illegality, unfairness and unreasonableness.

MANIPULATION OF PUBLIC CONCERNS BY THE FOOD INDUSTRY

Current concerns over the mandatory fortification of bread with folic acid have been generated entirely by a public relations campaign led by the NZ Food and Grocery Council and the NZ Association of Bakers. Both organisations have worked in tandem to produce inflammatory, misleading and fear-mongering information about the mandatory fortification regime. Key message they produced were:

  1. The 11 slices argument – providing a thoroughly misleading claim that women would need to eat 11 slices a day to get the required benefit. The fortification plan always regarded levels of dietary folate obtained by folic acid fortification (just over one third of recommended daily intake) would be a limited addition to folate levels obtained from other diet, leaving education campaigns for women of child-bearing age to take folic acid supplements as the next stage of a package of measures to improve overall uptake and reduce their risk of a neural tube defect affected pregnancy. However, even this limited addition is expected to have a clear public health benefit. Industry deliberately misrepresented this information in an attempt to ridicule the fortification initiative and to give an impression it would be ineffective in any case.
  2. The only 3 babies argument, (in other places stated by industry as only 1 to 5 babies to benefit argument) – the FSANZ report is quite specific in presenting an estimate of reduction of 4 to 14 pregnancies each year affected by NTDs. The FSANZ estimate was a deliberately conservative one and related only to the direct benefit of the folic acid added to bread. Clearly, existing dietary intake plus the effect of the planned public education function providing additional benefit through supplement intake, would increase the overall benefits to pregnancies and babies from the fortification regime. Industry played this argument to minimise and ridicule the potential benefits of mandatory fortification.
  3. The 84% against argument – in which the industry misquoted results of NZFSA commissioned research to claim this level of opposition. Detailed reading of the research by Peter Glen Research infers that almost all of the research participants were supportive of folic acid fortification, but with 84% stating a preference for a voluntary regime, and 16% preferring mandatory. Importantly, none of the participants had available to them information from research findings which demonstrate voluntary fortification has had very little benefit to date in New Zealand, and even well promoted voluntary regimes are generally only half as effective as mandatory fortification. The relative percentages are therefore not a valid basis for determining consumer preferences, when important information about the impact of either fortification regime is omitted from the information on which they based their preference.
  4. The mass-medication argument – in which the industry conveniently ignored the additional fortification standard requiring mandatory use of iodised salt in most breads from the same date that folic acid fortification is due, and in particular completely avoided any acknowledgement that fortification is a method of replacing the vitamin B9 stripped out of the food by the milling process. The argument is dishonest and misleading, and contains a substantial manipulation of the facts and deception of the public at large. The fact there is no public resistance to the iodine fortification regime clearly demonstrates that public resistance has been cleverly and selectively manipulated by industry for its own ends.
  5. The loss of consumer choice argument – which is a flip-side of the mass medication argument, but which is clearly negated by their silence on the iodised salt requirement and fails to acknowledge that most consumers currently lack choice about getting bread that has not had much of its nutrient and vitamin value stripped out in the manufacturing process.
  6. The cancer risk argument – though not the subject of this consultation, this frequently made claim became the major tactic of industry’s efforts to generate resistance to the fortification measure. As such this became an important factor in consumer concern about other concerns listed above, in particular the mass medication argument, but influential in generating concerns about all the other arguments in their misinformation campaign.

An important factor in assessing the impact of the industry campaign is to note that inept and weak media did very little to investigate any of the industry claims, gave little prominence to (or ridiculed) alternative viewpoints, and frequently repeated the industry’s spurious claims and figures as though they were all indisputable facts. It is very disappointing that NZFSA and the Minister did not do more to put consumers at ease and justify the approach being taken by NZFSA.

RELATING THE INDUSTRY CAMPAIGN TO THE DISCUSSION DOCUMENT

The government has proposed the option of delaying the implementation of this standard primarily because of concerns generated by the food industry’s food scare campaign. Prior to the new CEO of the Food and Grocery Council taking up her role in April this year the industry body had no plans for any campaign or lobbying to raise this issue with government or in the public domain. NZFSA had also not raised any concerns with the standard or publicly proposed any changes to the food standard.

In the NZ Food Safety Authority’s Discussion Paper there is frequent reference to the issues raised by industry in its campaign, and repeated frequently by the Minister and the Prime Minister during that campaign. These include the level of public resistance to the measure, questions about its effectiveness, and claims about loss of consumer choice. Additional issues raised in the Discussion Paper include the possibility of unnecessary cost burdens on industry, and whether folic acid can be evenly distributed within a loaf of bread.

NZORD submits that none of these issues are valid reasons for a review of the mandatory standard. We comment specifically on them as follows:

  1. Levels of public acceptability were canvassed in the 2006/07 assessment reports and dealt with then. New concerns are based on a misinformation campaign. Not only should the Minister not be guided by those concerns because of their malicious origins and clever manipulation, she should also specifically counter them as part of reinforcement of the status quo.
  2. Questions about the effectiveness of the fortification standard are also based on manipulation and deception. The purpose and impact of the fortification level was specifically chosen to meet the many objectives sought by the Health Ministers’ Council and required by the Food Act. When the misinformation is discounted, there is no new valid information in the questions about effectiveness that would warrant a review of the standard.
  3. Claims about loss of consumer choice were considered on the earlier decision that led to the new standard. There is no new information that is valid and is not the result of misrepresentation.
  4. Cost burdens on industry are not a valid consideration at this point in the standard development and implementation process. Pre-implementation cost will be substantially met already, additional costs will in fact be imposed by redundancy of packaging costs already met, and compliance and auditing costs are unlikely to be substantially different in future as some form of fortification will still be in place.
  5. Distribution of folic acid in the loaf is also not a new issue. It was considered by FSANZ in the October 2006 final assessment report. It has been consulted on and taken into account in issuing the mandatory standard. If there are any concerns about the techniques used to best ensure distribution in the loaf, they should be the subject of a future review planned for the standard, and do not justify the current review that government is proposing.

If the Minister does go with the government’s preferred option, in practical terms that would be rewarding bad behaviour by accepting the validity of the industry’s manipulative public relations campaign and the resulting community alarm, as well as ignoring the due process already conducted on these matters. Such a decision would have significant implications for proper decision-making by government, and set a very dangerous precedent. We consider these implications further in the following section about legal issues and obligations.

LEGAL ISSUES AND THE MINISTER’S OBLIGATIONS

This section of NZORD’s submission considers the requirements in the Food Act and the Minister’s administrative law requirements. This section responds to section 4 of the Discussion Paper and notes other relevant legal obligations that are not discussed in the Discussion Paper.

In interpreting the Minister’s legal obligations, it is crucial to remember that the Government (including the Minister) has a general duty to protect New Zealand citizens and their health. This public health duty is central here and is recognised in section 11E (1) of the Food Act which states that the Minister must take into account the “need to protect public health” (emphasis added). Implicit in this statement, Parliament has acknowledged that Minister has an active role, a “need”, to protect public health. Here the evidence demonstrates that only a mandatory fortification regime can satisfy this obligation to protect public health.

It is also important for the Minister to recognise the important public health consequences involved with a delay of mandatory fortification. As noted above, mandatory fortification is conservatively expected to result in 4-14 fewer pregnancies annually affected by a NTD. As such, the preferred approach of delaying implementation to 2012 would likely result in 12 – 42 pregnancies affected by a NTD.

Though government has included an option for maintaining and even enhancing a voluntary fortification regime, which may avoid some of those NTDs, past experience in New Zealand, and research evidence from elsewhere clearly demonstrates limited effectiveness of voluntary fortification regimes, such that avoidable NTDs would still occur.

NZORD considers that given scientific certainty of the causes of NTDs and of ways to prevent them, those mothers have a right to a healthy pregnancy and a legitimate expectation for government to take such steps that are practical and reasonable to protect their health and wellbeing and that of their unborn baby. Indeed a right to life is enshrined in section 8 of the New Zealand Bill of Rights Act, and the common law also puts such a duty on government. Any decision to deny that right to these mother by changing the folic acid fortification standard must be taken with due caution following a suitable process.

Requirements under the Food Act

Section 11L of the Food Act makes plain that the Minister may amend or revoke any food standard and that the provisions of sections 11E to 11K of the Act apply in respect of any amendment or revocation of the food standard. Section 11E of the Food Act states:

(1) In issuing any food standard, the Minister shall take into account the following:

(a) The need to protect public health;
(b) The desirability of avoiding unnecessary restrictions on trade;
(c) The desirability of maintaining consistency between New Zealand’s food standards and those applying internationally;
(d) New Zealand’s obligations under any relevant international treaty, agreement, convention, or protocol, and, in particular, under the Australia-New Zealand Joint Food Standards Agreement;
(e)
Such other matters as the Minister considers appropriate.

(2) The Minister shall not issue any food standard unless the Minister is satisfied that appropriate consultation has been carried out with respect to the food standard, including (without limitation)-

(a) Adequate and appropriate notice of the intention to issue the food standard; and
(b)
A reasonable opportunity for interested persons to make submissions; and
(c) Adequate and appropriate consideration of any such submissions.

Section 11E sets out factors that the Minister must take into account in making her decision. In taking these factors into account, it is imperative that the Minister makes her decision on the facts and does not take into account the misinformation discussed above. Each of the factors in section 11E is discussed further below.

Section 11E(1)(a) – The need to protect public health

NZORD considers it is a fact that mandatory fortification of bread with folic act would have public health benefits.

There is a considerable weight of evidence to support this fact, including statistically measureable reductions in NTDs observed in jurisdictions that have already introduced mandatory fortification of bread with folate. There would also be an advantage to the general public through alleviation of folate deficiencies. The nature of the public health benefits was assessed by FSANZ in detail and is documented in the seven assessment reports. Numerous experts have provided evidence.

This fact is not disputed in the Discussion Paper nor are any doubts about the science supporting those public health benefits raised. That is because, as in 2007, the science clearly supports the public health benefits.

NZORD further considers that it is a fact that mandatory fortification of bread with folate, at the mandated levels, is safe. The misinformation of recent months does not stand up to any analysis and even the Minister in a press statement has acknowledged that folate is safe. There has been no consultation on any other view.

NZORD submits that the Discussion Paper incorrectly lists as a disadvantage “uncertainty that the mandatory fortification would deliver the desired outcome”. All of the evidence indicates a tangible public health benefit from mandatory fortification. NZORD assumes that this statement is intended to refer to the fact that mandatory fortification may not in and of itself deliver maximum protection against NTDs as the established level of folic acid required for full protection is higher than that likely to be derived from consuming folate fortified bread. However, ‘maximum protection’ is not the factor the Minister is required to taken into account. The Minister must take into account the need to protect public health and the public health benefits of mandatory fortification are demonstrable. Moreover the evidence supports that the public health benefits of mandatory fortification by far outweigh the benefits of voluntary fortification.

Section 11E(1)(b) – The desirability of avoiding unnecessary restrictions on trade

NZORD submits that continuation of the status quo does not place any unreasonable restrictions on trade. The Discussion Paper expresses some concern with the cost burdens on industry. As noted above, NZORD considers these cost burdens have been overstated.

From a public health perspective the cost burden here is low. Often in public health there are genuine financial constraints and the unfortunate need for a process that weighs up competing health needs against the available health budget. Here the costs on industry (amortised to 3 to 5 cents per loaf) is fully recoverable from consumers, who arguably all obtain a benefit (as there is a general folate deficiency in the New Zealand diet). The public health benefit of NTD reductions is an additional benefit.

Sections 11E(1)(c) – Consistency between New Zealand’s food standards and those applying internationally

NZORD considers that the international trend is towards mandatory fortification of bread with folate, and there are now 57 countries with mandatory fortification and additional countries currently considering its introduction. The Minister has often mentioned the voluntary regime in Ireland as an example she prefers – yet NZORD understands that Ireland is debating mandatory fortification as voluntary fortification there is delivering suboptimal public health benefits when compared to jurisdictions with a mandatory fortification regime.

Section 11E(1)(d) - New Zealand’s obligations under international treaties, in particular under the Australia – New Zealand Joint Food Standards Agreement

The New Zealand Joint Food Standards Agreement (called the “Treaty” in this section of the NZORD’s submission) clearly envisages that policy development of food standards will involve the process detailed in the Treaty. The rushed knee-jerk process being followed by NZFSA here does not follow the process in the Treaty and it appears that if food standards implementing the preferred approach were revoked and issued it would likely contravene New Zealand’s international obligations under the Treaty.

New Zealand has agreed that the development of food standards within the scope of the Treaty should occur through the formalised process in the Treaty.[1] NZORD considers any standard relating to folate in bread is within scope. Under Article 3 of the Treaty, the Treaty’s scope includes food standards relating to the production, manufacture and preparation of food (and the limited scope exceptions do not apply in this case). NZORD’s understanding is consistent with the development of the 2007 mandatory fortification standard under the Treaty processes and the current inclusion in the Australia New Zealand Food Standards Code for voluntary fortification of bread.

Annex D of the Treaty sets out principles and procedures to be followed where different conditions indicate variations to standards are required, such that New Zealand and Australia should take a different approach. NZORD does not consider that Annex D is relevant here for a number of reasons.[2] Annex D was perhaps relevant in relation to the decision two years ago i.e. the variation in approach between New Zealand (adding folate at the premix stage) and Australia (at the flour milling stage).

As the exclusions in Annex D do not apply, New Zealand is unable under the Treaty to establish or amend the folate in bread food standards other than in accordance with the Treaty. This factor must be taken into account by the Minister in making her decision. The rushed process being proposed in the Discussion Paper clearly does not comply with the process in the Treaty.

Section 11E(1)(e) – such other matters as the Minister considers appropriate

The Discussion Paper highlights that reduction in consumer choice is a matter that the Minister intends to take into account. NZORD considers it would be irrational for ‘consumer choice’ to be relied upon as a ground for revoking the food standard that requires mandatory fortification of bread with folate. This is because the same argument exists in relation to the food standard that requires mandatory fortification with iodised salt, but yet this food standard is not being reconsidered.

NZORD is also concerned that the ‘consumer choice’ impacts are being overstated. The Discussion Paper states that “the cost to consumers in terms of loss of choice was assessed in the 13 April 2007 Cost Effectiveness Analysis of Options report as significant” and NZORD considers this overstates the analysis in the paper. For example:

  • The paper (Cost Effectiveness Analysis of Options paper by Segal, Dalziel and Katz) does not use the term ‘significant’. Rather the paper notes “this can be argued several ways” (see page 40).
  • In line with economic practices, the sensitivity analysis in the paper included an upper end being a ‘$ per person not in target group measure’ which likely overstated the consumer cost. But the paper also notes (see page 40) that:
    “... the issue of consumer choice is complex. It could also be argued that consumers currently have little choice in relation to the nutrient quality of the foods that they consume. For example four, rice and other staples are stripped of much of their nutrient value in the refinement processes, a factor over which consumers have no effective control. In that vein, it could be argued that fortification with folic acid and other essential nutrients is simply designed to put nutrients back into the food supply that have been taken out, without explicit consent of consumers and to the detriment of the public health.”
  • Further on page 34 of the paper it is mentioned that in a voluntary fortification regime consumers perceive an additional benefit from a fortified product, whereas in a mandatory fortification environment the consumer is not permitted the chance to assess and purchase based on perceived benefit. The paper notes that based on the economic theory of revealed preference, and as a matter of logic, the benefit to the consumer in a mandatory fortification should be presumed to be at least equivalent.

To the extent consumer choice cost is taken into account by the Minister, the Minister must ensure that she takes into account uncertainties regarding how to measure this cost.

In relation to consumer views, NZORD notes that the misinformation campaign discussed above has unfortunately resulted in some consumer confusion. The recent misleading media may result in consumers putting in submissions expressing a desire to revoke the mandatory fortification regime. The Minister needs to bear in mind that:

  • such concerns may have resulted from factually incorrect information. Many of the consumer concerns are able to be alleviated by a public awareness campaign by NZFSA which informs the public of the benefits of folate and its safety. For example, many consumers are likely unaware that fortification will replace some of the vitamin B9 stripped by the milling process and help reduce the common deficiency of this vitamin in the general population.
  • the ‘silent majority’ of consumers often do not participate in consultation processes. Many consumers will often not participate (for example, due to apathy, incomplete information or simply trusting the Government to make the right decision based on all the evidence). Decision-makers are required to keep an open mind and should not yield to the sheer weight of numbers.

Section 11E(2) – obligation to consult

The amount and quality of consultation that is required to satisfy a Minister’s legal obligations can vary extensively depending on the nature of a decision. It is very relevant here that section 11E(2) details a comprehensive consultation obligation. The Food Act does not merely state “the Minister must consult”, it requires (emphasis added):

(2) The Minister shall not issue any food standard unless the Minister is satisfied that appropriate consultation has been carried out with respect to the food standard, including (without limitation) -

(a) Adequate and appropriate notice of the intention to issue the food standard; and
(b)
A reasonable opportunity for interested persons to make submissions; and
(c)
Adequate and appropriate consideration of any such submissions.

Parliament’s intention in including such clear consultation obligations must have been that reasonably thorough consultation was required to issue a food standard.

NZORD considers that the consultation process adopted by NZFSA has failed to meet the requirements in the Food Act, in particular:

  • it has only been in the past two months or so that any suggestion of revoking the mandatory food standard has been raised and adequate notice has not been provided (especially when compared with the lengthy process adopted to notify and develop the 2007 mandatory folate fortification food standard);
  • there has not been a reasonable opportunity provided to make submissions. This is even acknowledged in the Discussion Paper on page 5 (emphasis added):
    Given the limited time available, submitters are encouraged to given this matter urgent consideration in order to allow analysis of submissions to be undertaken and a decision to be made before the current commencement date”
  • the indicative timeline in section 7.2 of the Discussion paper suggests that during a two week period NZFSA/the Minister plans to consider submissions, draft an amended food standard, make a decision (including taking into account all of the factors above) and notify it in the Gazette. NZORD considers this is manifestly an inadequate time to adequately and appropriately consider the submissions.

Genuine consultation requires an ‘open mind’. Here the indicative timeframe illustrates that this is not the case. This is because there is no time available in the indicative timeline to consider any options other than the three proposed. For example, if a submitter were to suggest changes to the wording of the mandatory standard, there would be no time available for NZFSA or the Minister to consider whether such a change was appropriate. NZORD considers it may be appropriate to increase the upper level of allowable folate. However, NZORD appreciates that there is no room within this consultation process to consider such an issue. Based on this, it is manifestly plain that genuine consultation is not occurring.

To meet its consultation requirements, NZFSA must also ensure those making submissions have adequate information. The Discussion Paper was brief on content and analysis. For example, there was no mention of the misinformation that has recently been in the media or any clear statements that NZFSA disputes such information.

Based on the process used to develop other food standards (the ‘existing practices’) the public expect NZFSA to perform more extensive consultation that demonstrated in this instance. For example, the process of preparing the 2007 mandatory fortification food standard was an intensive, lengthy process that spanned many years.

NZORD considers that, if the Minister pushes ahead and issues and revokes food standards to implement the preferred option, there is a real risk that this will be ultra vires due to the deficiencies in the consultation process. Only continuation of the status quo complies with the requirements in the Food Act as it does not require the Minister to issue or revoke any Food Standards at this time.

Administrative Law Concerns

NZORD is concerned with the administrative processes being adopted. Ministers should ensure that an objectively fair and reasonable process results in a fair and reasonable outcome. If the Minister steam-rolls ahead with the ‘preferred option’, NZORD considers there will be a number of breaches of the Minister’s administrative law obligations and the Minister’s decision may be judicially reviewable on a number of grounds.

The potentially relevant grounds are discussed briefly below.

Illegality

A decision to issue and/or revoke food standards may have been made illegally by the Minister if:

  • the consultation process is so inadequate that it is ultra vires (see section 11E(2) of the Food Act). This issue is discussed above.
  • the Minister is materially influenced by a factual error. While hesitant to consider the factual merits of a decision, a court may intervene if a decision is made on the basis of a serious factual error where the fact is central to the decision and an established incontrovertible fact. Here NZORD considers that the public health benefits and safety of fortification with folate is a scientific fact.
  • the Minister in making the decision fails to take into account certain relevant matters. The Minister must ensure that she takes into account each of the matters specified in section 11E of the Food Act. As discussed above, NZORD’s view is that any reasonable Minister taking into account those matters would continue with the status quo.
  • the Minister in making the decision takes into account matters that are irrelevant and should not be considered. While section 11E(1)(e) allows the Minister to take into account other matters, these matters must be relevant and appropriate for the Minister to consider. It would be irrelevant, for example, for a Minister’s decision to take into account any political pressure, embarrassment or public reaction that the Minister or NZFSA may face as a result of doing an about turn on an issue.
  • the Minister’s decision should not be made for an improper purpose, the Minister’s decision to issue a food standard should be made consistently with the purposes set out in section 11B. Notably, the decision cannot be made for the ‘purpose’ of consumer choice.

Unfairness

A decision to issue and/or revoke food standards may also be reviewable on the grounds of unfairness, for example due to:

  • inadequate consultation being a breach of natural justice; or
  • predetermination. The Minister needs to ask ‘Would a reasonable observer, aware of all the circumstances think that the impartiality of the decision-maker might be affected?’ NZORD consider the Minister’s statements and the history of how the preferred option was developed, do give rise to a perception that this issue has been predetermined. There is a sense that the Minister has told NZFSA she wants to change the standard and NZFSA are now “going through the motions”.

Unreasonableness

A decision to issue and/or revoke food standards may also be reviewable on the grounds of unfairness. A decision maker must act in a reasonable fashion and the decision must rely on some reasonable basis.

A court can invalidate a decision if it is so perverse, absurd or outrageous in its defiance of logic that Parliament could not have contemplated such a decision being made. Although, some judgments suggest that this test has softened such that the courts only need to have a ‘hard look’ at the decision.

On any formulation of the legal test, NZORD considers this test may be met if food standards are revoked and issued to give effect to the preferred option. For example, the unreasonable test may be met if the Minister makes any decision based on any concerns regarding the safety of folate and it is completely illogical that a different approach be taken in relation to the iodised salt in bread and folate in bread food standards which both raise similar issues.

Other legal duties

NZORD is concerned that NZFSA and the Minister did not do more to respond to the misinformation campaign and publicly allay any fears regarding the safety of folate.

NZORD considers that both the Minister and NZFSA have a duty to ensure that the public are not mislead about the safety of any food standard, and should take an active role in responding to any misleading journalism. NZORD expected NZFSA would stand up and back its standards, particularly where such considerable scientific evidence demonstrates safety. Had NZFSA quickly responded, the unnecessary public anxiety would not have occurred.

PUBLIC HEALTH BENEFITS

NZORD submits that the public health benefits of mandatory fortification are clear. In addition to our support of the status quo option, we offer the following additional matters for the Minister to consider:

  1. Both of the options given as alternatives to the status quo are shown by New Zealand experience and by research evidence elsewhere, to produce less effective outcomes in terms of NTDs avoided.
  2. It seems that many public health programmes are saddled with controversy and lobby groups wishing to challenge or undermine them. Examples include fluoride in water to prevent tooth decay and other health complications, and vaccinations to prevent infectious diseases, and continued claims of thoroughly disproven links between certain vaccines and autism.
  3. Many important public health programmes also require widespread public involvement to prevent a small number of very serious impacts in the whole population. Examples of this include newborn metabolic screening to detect about 45 serious illnesses in babies each year, and the vaccination of the majority of the population to prevent diseases that in New Zealand are now rare but serious.
  4. The protection of public health requires active support by political leaders and government agencies of well researched and soundly based programmes. This support includes the need to confront misinformation and to provide active reassurance to the public. In this case the responsibility sits with the Minister and NZFSA.
  5. Though not part of the Discussion Paper, the cancer scare remains a significant aspect of other matters that are included in the scope of the paper. As noted above, we submit that the cancer risk issue has been blown out of all proportion. Even the industry has implicitly acknowledged this by requesting to sell voluntarily fortified bread, which obviously wouldn’t occur if they genuinely held safety concerns.
  6. There is useful hypothesis and some epidemiological evidence of further health benefit from folic acid fortification, through the prevention of congenital heart defects. These add to the weight of public health benefits from a mandatory fortification regime.

NZORD has not had sufficient time to reference this submission. We can provide references if needed to support particular points in our submission, though we expect NZFSA will be familiar with the source of most statements in our submission.

We welcome the opportunity to make this submission, despite the very restricted time-frame that could not possibly allow a proper consultation on the issues raised, nor others that are relevant. We note that the obligation under the Act is for the Minister to follow a proper process. We trust this submission helps achieve that.

John Forman
Executive Director, NZORD


[1] See Article 5(3) of the Treaty which states: “Subject to Annex D of this Agreement, neither Member State shall by legislation or by other means establish or amend a food standard falling within the scope of this Agreement other than in accordance with this Agreement.”

[2] In particular, Annex D is irrelevant as: (i) re paragraph 1 of Annex D, the analysis or consultation is not being undertaken by the Authority; re paragraph 2 of Annex D, the ‘preferred option’ is not an ‘ approved food standard’; re para 3 there has been no urgent application or urgent proposal involving the Council; and re paras 4 and 5, there are no exceptional health, safety, third country trade, environmental or cultural factors in New Zealand which suggest a variation in approach is required.