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Australian consumers should have the right to claim for compensation if they are adversely affected by food which has been fortified with additives by Government mandate, says Deakin University's Adjunct Professor Joe Lederman.
Professor Lederman who was addressing an international symposium on Food Law and Policy, run by Deakin University's Law School at the weekend, said the mandatory fortification of bread-making flour with folic acid was due to take effect from 13 September 2009, yet there were few legal safeguards in place to protect Australian consumers.
"From 13 September 2009 flour millers in Australia are required to ensure compliance with mandatory fortification of wheat flour for making bread as required under Clause 4 (2) of Standard 2.1.1 of the Australian New Zealand Food Standards Code to contain no less than 2mg/kg and no more than 3mg/kg of folic acid."
Professor Lederman said that the legal process by which mandatory fortification is being introduced was not a thorough process and argued that current laws are inadequate to protect consumers if this government health intervention were to prove dangerous or if recent contra scientific studies were to outweigh the health benefits claimed by proponents of the mandatory fortification.
Professor Lederman said that while attempts to encourage pregnant women to increase their folate intake through folic acid supplements, along with voluntary fortification of certain foods with folic acid, had resulted in a 30 percent decrease in neural tube defects among non-indigenous infants, there was no change in the rates of these defects in indigenous Australian infants. The decision to shift from fortification being voluntary to becoming mandatory was based mainly on the perception of what was needed to address socioeconomic and demographic disparities between indigenous and non-indigenous Australians.
Professor Lederman said the mandatory fortification meant that Australians would be exposed to significantly raised levels of synthetic folic acid despite recent studies suggesting elevated levels of folic acid might cause serious illness or mask other serious health conditions.
"The American Journal of Clinical Nutrition has recently warned that countries considering folic acid fortification should be cautious and research the issue carefully, yet Australia lacks the nutrition information systems that would be necessary to implement and monitor these policy-making decisions.
"There are great legal uncertainties surrounding the potential health risks and impacts of mandatory folic acid fortification for the broader public, and the limitations in existing laws on legal liability and remedies available to the injured consumer are a big concern.
"Australian consumers face a number of hurdles before a court would grant them compensation, including attributing liability, statutory limits on damages and the difficulties in launching class actions.
"The Ministerial Council or FSANZ in my view has failed to make a proper assessment as to whether mandatory fortification is the most effective public health strategy to address folate deficiency.
"We need better targeted campaigns to provide our indigenous population with the same standard of health and educational services that will ensure better diet with adequate folate, rather than just encouraging indigenous women to rely on consuming more white bread with folic acid, instead of promoting green vegetables and the folate supplements advised by most doctors.
"The health risks raised in contra scientific studies are disconcerting because excessive folate will be consumed by children, the elderly and men, all of whom have to consume folic acid but are not the targeted beneficiaries. This is a scattergun approach.
"The new Food Standard introducing mandatory fortification should be accompanied by a legal right to compensation should scientific consensus show in the future that they got it wrong."