This involves potential amendments to the Australia New Zealand Food Standards Code (the Code) to protect vulnerable groups that include pregnant women, children and athletes.
As part of the review process, FSANZ is undertaking public consultation from 4 March to 15 April 2025, 11.59pm (AEST).
The proposed changes
FSANZ is proposing two new prohibitions – food for retail sale must not be caffeine, and all food for retail sale must not contain caffeine as an ingredient or a component.
These prohibitions will not apply to the following, which are currently “expressly permitted by the Code” to be sold via retail – formulated caffeinated beverages, cola-type drinks and, if approved, formulated supplementary sports foods.
FSANZ is also proposing that formulated supplementary sports foods may contain caffeine up to 200mg in a one-day quantity, with consumption directions specified on the product label.
It recommends setting new compositional, packaging and labelling requirements for these sports foods, including a requirement that they must not contain caffeine at a concentration of 5% or more for a product in a powdered form; or 1% or more for a product in a liquid form.
Businesses will still be permitted to add caffeine-containing foods to other foods, such as adding coffee or chocolate to cakes and confectionery.
The proposed amendments will also not affect retail foods that contain caffeine by natural occurrence – for example, coffee, tea, and chocolate – unless they are novel foods. At present, the Code does not allow novel foods containing caffeine to be sold in the country.
These amendments were proposed following the review of existing regulations.
Current status
Currently, the food authority prohibits the retail sale of a food in which caffeine is present at a concentration of 1% or more of the food if that food is a liquid, and 5% or more of the food if that food is a solid or semi-solid food.
These would be repealed if FSANZ’s latest proposed changes are approved, as the proposed approach would prohibit such products.
This proposal comes after FSANZ reviewed public comments from the first call for submissions, which took place from 19 December 2022 to 13 February 2023.
Prior to announcing this ongoing second call for public comments, FSANZ had considered feedback from stakeholders.
Concerns from industry
Industry stakeholders, including ATP Science, have raised concerns about the financial burden on medium-sized Australian businesses, citing costs related to withdrawing, reformulating, and relabelling affected products.
There are also fears that the proposed regulations could give more opportunities to overseas imported brands and black-market products.
“Given that products complying with the Code may still contain caffeine, it is unlikely this proposal will be the reason consumers decide to buy black market products,” FSANZ responded.
It added that the cost of relabelling and reformulating impacted products has been considered in the cost benefit analysis. Furthermore, there is a transition period of two years, which is intended to provide sufficient time for existing products to be sold, and to minimise the cost of reformulation and relabelling.
It is also not clear that the proposal will result in greater demand for imported products relative to domestic products, as importers are legally responsible for ensuring the foods they import comply with the standards that apply to their products and do not pose a risk to human health, said FSANZ.
Another concern involves businesses potentially exploiting legal loopholes – such as the Trans-Tasman Mutual Recognition Act 1997 (TTMRA) between Australia and New Zealand – to import highly concentrated caffeine products even if they would not be allowed for import to Australia from a different country. This was raised by Australia’s public health system Queensland Health and dietetics group Dieticians Australia.
FSANZ responded, “The Imported Food Control Act 1992 (IFC Act) requires all food imported into Australia to be safe. Importers are legally responsible for ensuring the foods they import comply with the standards that apply to their products and do not pose a risk to human health.”
It also clarified that the operation of the TTRMA is a matter for the Australian and New Zealand governments and out of scope of the proposal.
FSANZ also responded to New Zealand Food and Grocery Council’s concern that the new rules would limit product development and consumer choice.
“FSANZ expects this proposal to result in a net improvement on FSSF [formulated supplementary sports foods product development.]
“There is currently no explicit permission in the Code for the addition of caffeine to FSSF. The proposed permission gives regulatory clarity to both industry and regulators and enables manufacturers to confidently and safely add caffeine up to a 200 mg one-day quantity of caffeine. This may lead to more investment in the sector, leading to greater product development.”
FSANZ also considered that additional measures are required in relation to the regulation of caffeine in the Australian and New Zealand food supply to protect public health and safety.
Protecting public health and safety
In a 2019 review and report to Australian Government Ministers, FSANZ found that a significant risk differential exists between pure caffeine powders and high caffeine content products.
Pure caffeine products can have the maximum 200 mg dose in 1/16th of a teaspoon, with a potentially fatal dose, and the equivalent of 25–50 cups of coffee, in one teaspoon.
The fact that a miniscule amount of caffeine powder may result in a lethal quantity, often with the average safe quantity not able to be accurately measured on standard kitchen scales, causes alarm.
FSANZ’s risk assessment identified that single intakes of 210 mg caffeine and up to 400 mg/ day (5.7 mg/kg body weight per day) were not associated with adverse effects in non-pregnant adults.
Caffeine intake in pregnant women should be limited to 200 mg of caffeine per day. In children, consumption of up to 3 mg/kg body weight per day is safe although there is some evidence of increased anxiety at this dose.
However, a social science assessment by FSANZ also indicated that “some specific sub-populations typically consumed more than the safe limit of caffeine”. A separate dietary exposure assessment yielded similar findings.
FSANZ’s dietary exposure assessment found that up to 6% of Australian adults aged 20 years and above, 2% of New Zealand individuals aged 15 years and above, and 15% of pregnant women exceeded safe caffeine intake limits.
Evidence suggests that some athletes, military personnel and individuals from the general population are consuming multiple types of sports food products, sometimes within the same day (i.e. stacking), although it is not clear whether these products contain caffeine.
“Stacking caffeinated sports food products may put consumers at risk of inadvertently exceeding the recommended maximum daily limit if they are unaware of those limits or of the amount of caffeine in sports food products,” FSANZ said.
Therefore, while FSANZ acknowledged the short-term cost impacts arising from this proposal, it noted that these should be weighed against potential benefits to public health and to businesses that occur over the longer term.
