Current Developments in Food Law and Policy in Australia and Elsewhere

Date Published

Author

By Joe Lederman

FoodLegal Lawyers and Consultants

© Lawmedia Pty Ltd, June – July 2011

• Push for more Government intervention on fast food advertising to children
• Australia New Zealand Therapeutic Products Agency created
• New Primary Production and Processing Standard for Eggs and Egg Products
• Truth in Labelling - Palm Oil Bill (Private Member’s Bill) passed by Senate despite contrary Committee recommendations
• Australian regulators issue assurances as European E.coli outbreak continues
• ACCC set to continue to allow collective bargaining by dairy farmers
• New food labelling laws introduced in the EU
• South Australia looks to introduce voluntary origin scheme
• Live exports to Indonesia spark wider debates

Push for more Government intervention on fast food advertising to children

On 27 June 2011, the Australian Medical Journal published a Study, which found that despite the introduction of the Australian Quick Service Restaurant Industry Initiative for Responsible Advertising and Marketing to Children (QSRI Initiative) in 2009, children’s exposure to fast food advertising has not decreased. 

The QSRI Initiative was introduced in August 2009 to “ensure that only food and beverages that represent healthier choices are promoted directly to children”.  The seven signatories to the QSRI Initiative, Chicken Treat, Hungry Jack’s, KFC, McDonald’s, Oporto, Pizza Hut and Red Rooster, each agreed to only advertise healthy options, as determined by a nutritional criteria for assessing kids’ meals, to children under 14 years of age.

However, the Study has found that since the QSRI initiative came into effect, fast-food advertising on television has increased overall. While the study found that so-called “non-core” products, such as burgers, fries and soft drinks have decreased, it found that fast food companies have changed their advertising strategy to focus more on the advertising of “healthier” alternatives and specific promotions and the company brand itself. In 2009, non-core fast-food advertising comprised 93% of total fast-food advertising, while in 2010, it comprised just 67%. However, the actual frequency of food advertisements had remained the same, even during peak viewing times for children.

One reason for this was identified as being the narrow focus of the QSRI initiative – it was restricted to apply only to ads deemed by industry to be marketed to children, and applies nutrient criteria only to children’s meals, which appears to be a shrinking segment of fast-food advertising.

The Study called for the voluntary industry self-regulation to cover a wider range of foods that children actually consume, and not just meals specifically made for and marketed to children. The Study further suggested that governments ought to better define the policy framework for regulating fast-food advertising to children.

FoodLegal Bulletin has previously written relevant articles on the concept of marketing the “healthier food option” in our May 2011 article “Regulatory implications of research findings about health oriented monikers and pseudonyms”.

Australia New Zealand Therapeutic Products Agency created

On 20 June 2011, the Therapeutic Good Administration (TGA) announced the creation of the Australia New Zealand Therapeutic Products Agency (ANZTPA).

The ANZTPA is a bi-national scheme between the Australian and New Zealand Governments for the regulation of therapeutic goods, including medicines and medical devices. Under the proposed scheme, which was due to commence immediately from July 2011, the current regulators in Australia (Therapeutic Goods Administration) and in New Zealand (Medsafe) are to be merged into a single regulatory agency called the ANZTPA. However, the actual amalgamation is scheduled to occur across 3 stages over a period of up to 5 years.

In the immediate phase, the two national regulators, TGA and Medsafe, will begin worksharing and increasing their joint operations. In the second phase, a single entry point for industry will be established and a trans-Tasman common regulatory framework will be agreed upon. During the first two phases, each country will retain its own regulator and will continue to make its own regulatory determinations.

In the third phase, the two bodies are to become integrated as one regulatory agency dealing with therapeutic products in both countries, at which point the ANZTPA will become fully operational.

More information about this and more about regulatory interfaces in functional foods and special purpose foods and food supplements will be provided at a special FoodLegal Symposium to be held in Sydney on Monday 10 October 2011. The topics and names of top expert speakers will be announced shortly. Don’t forget to diarise this now!

New Primary Production and Processing Standard for Eggs and Egg Products

Food Standards Australia New Zealand (FSANZ) has introduced a new Standard 4.2.5 dealing with “Primary Production and Processing (PPP) Standard for Eggs and Egg Products”.

The standard was aimed at reducing the incidence of foodborne illnesses associated with eggs and egg products, specifically through:

• requiring egg producers and processors to identify and control safety hazards, such as ensuring feed is not contaminated
• prohibiting the sale of cracked and dirty eggs unless they are sold to a processor for pasteurisation
• requiring individual eggs to be stamped with the producers’ unique identification so they can be traced. This is a new and potentially onerous system.

Standard 4.2.5 was gazetted on 26 May 2011 and is expected to commence on 26 November 2012, following an 18-month implementation period.

Truth in Labelling - Palm Oil Bill (Private Member’s Bill) passed by Senate despite contrary Committee recommendations

In June 2011, the Australian Federal Senate passed the Truth in Labelling – Palm Oil Bill (Palm Oil Labelling Bill), requiring all products containing palm oil to be explicitly labelled, rather than being labelled just as “vegetable oil”.

As FoodLegal previously reported in our Legislative Update in December 2010, the Palm Oil Labelling Bill had been an initiative of the South Australian Independent senator Nick Xenophon in late 2009 to make it mandatory  to declare whether a food product contains “palm oil” (as opposed to being described merely as “vegetable oil”). Senator Xenophon said such labelling would encourage the use of certified sustainable palm oil and protect wildlife habitat. The orang-utan and tropical rain forests are being threatened by expansion of palm oil plantations in Malaysia and elsewhere. 

The fact that Senator Xenophon hails from the canola-growing state of South Australia makes this a politically astute move. It engenders his popularity among many rural conservatives in his home State while broadening his electoral appeal to an alliance of environmentalists on the Left of the political spectrum.

The passage of the Palm Oil Labelling Bill through the Senate comes despite a recommendation by the Community Affairs Legislative Committee of the Federal Senate that the Bill not be passed.

In particular, the Senate Committee had noted a lack of consensus or support from consumers, industry, and conservation groups for such intervention. It also stated that “it would not be appropriate to single out palm oil for inclusion in product ingredients lists for health reasons, because listing palm oil would not on its own provide an indication of the nutritional content of foods”.

The Committee did however express general support for the broader approach to labelling proposed by the Blewett Review on Food Labelling Law and Policy, including the proposal for more detailed labelling information on sugars, fats and oils.

The Palm Oil Labelling Bill has been criticised by the Australian Food and Grocery Council. The Malaysian Government has also objected to the Bill, as Malaysia is a major producer of palm oil.

The Bill was passed in the Australian Senate with the support of Coalition Senators and Greens Senators, and its passage through the House of Representatives will depend on it being supported by the ALP Government. 

Australian regulators issue assurances as European E.coli outbreak continues

When the strain of deadly E. coli spread in a number of European countries, Australian authorities were quick to release statements reassuring Australians that there had been no reports of the outbreak strain in Australia.

The New South Wales Food Authority in its Media Release dated 7 June 2011 reassured Australians that Australia does not allow importation of fresh cucumbers, lettuce or sprouts from Europe, although it noted the importation of frozen and dried tomatoes is permitted.

Food Standards Australia New Zealand (FSANZ) created a Fact Sheet on E.coli on 15 June 2011, and urged consumers to practise good food safety principles. We explore this issue more closely in our article in this June-July issue of FoodLegal Bulletin, “European E.coli outbreak puts spotlight on Australia horticultural safety”.

ACCC set to continue to allow collective bargaining by dairy farmers

The Australian Competition and Consumer Commission (ACCC) has issued a Draft Determination proposing to allow some dairy farmers to continue collective bargaining with processors for another 5 years.

Under the Competition and Consumer Act 2010 (formerly the Trade Practices Act), the ACCC may ‘authorise’ businesses to engage in anti-competitive conduct where it is satisfied that the public benefit from the conduct outweighs any public detriment.

Various dairy farmer groups have been collectively bargaining with milk processers under an authorisation granted by the ACCC to the Australian Dairy Farmers Ltd (ADF) since 2002. Around 500 farming families are currently registered under the ADF's collective bargaining arrangements. When the Australian Dairy Farmers Ltd (ADF) sought a re-authorisation for a further five years, the ACCC issued its Draft Determination on 16 June 2011. In its Draft Determination, the ACCC stated that it considers that:

the collective bargaining arrangements will continue to result in public benefits through transaction cost savings and providing the opportunity for increased farmer input into contracts relative to a situation where farmers negotiate individually with the processor they supply.

The ACCC has also expressed a view that as the ADF collective bargaining process is well understood by farmers and processors, the current conditions attached to the authorisation are likely to continue to apply. This includes a condition that membership of collective bargaining groups is limited to dairy farmers with a ‘shared community interest’.

The ACCC was seeking further public submissions on this issue until 8 July 2011.

New food labelling laws introduced in the EU 

In June 2011, European Union (EU) negotiators reached an agreement on new food labelling laws, including labelling requirements said to be necessary for dealing with obesity levels in Europe. Yet, the main issues during the negotiation were related to nutritional labelling, alcohol labelling, and Country of Origin Labelling (CoOL).

Under the agreement, subject to a five year implementation period, all food products within the EU must carry labels displaying their energy, salt, sugar, protein, carbohydrate, fat and saturated fat content per 100g. However, "Guideline daily amount" or GDA information on salt, fat, sugar and energy content will be voluntary only.

The European Commission will submit within three years a report evaluating the issue of trans fat labelling. This report may lead to a legislative proposal.

By contrast to the various recommendations from the Blewett Review being considered by Australian policy-makers, the agreed changes in Europe do not seek to introduce the abovementioned nutritional information as a part of a front of pack labelling scheme. Companies may voluntarily repeat some of the information on their front of pack if they choose, but the required mandatory nutritional information will remains back of pack. 

Despite initial calls for the nutritional labelling rules to apply to some alcoholic beverages such as alcopops, under the final agreement reached in the EU all alcoholic beverages would be exempted from nutritional labelling.

The new EU agreement will also extend mandatory Country of origin labelling (CoOL) in Europe (currently applicable only to beef, honey, olive oil and fresh fruit and vegetables) to pork, lamb, goat and poultry. The European Council rejected requests from some Members of the European Parliament to extend CoOL to dairy products and processed meats.

Under other changes about to be introduced, sources of vegetable oils must be identified – for example, palm oil must be labelled as such. (See, in the Australian context, the article on Truth in Labelling – Palm Oil Bill above). 

The European Parliament officially passed the laws to adopt the abovementioned changes on 6 July 2011.

South Australia looks to introduce voluntary origin scheme

In July 2011, the South Australian Government released a consultation paper on the possibility of introducing a form of voluntary origin labelling and certification scheme for South Australian food and/or wine.

At this point, the South Australian Government is seeking to gauge the level of support for the introduction of a food protection scheme by way of geographical indication and certification. In the consultation paper, the South Australian Department of Primary Industries and Resources stated:

It could be argued that such heavily regulated appellation style controls are not right for South Australia. Examples of such a strong association between a food and a place are not always obvious in South Australia. However, there are producers and types of foods that are distinctively associated with an area – some examples include pure Ligurian bee honey from Kangaroo Island and traditional Barossan smallgoods. Other products that are made throughout the State are of exceptional quality and use ingredients or methods that are unique to a particular region.

The consultations will provide feedback on issues such as whether an origin labelling scheme should be initiated by Government or by Industry, what products or regions need to be protected, what percentage of ingredients needs to be “local” in order to satisfy the requirements of any proposed labelling scheme, and whether food processes and manufacturing techniques should be protected.

Submissions to the consultation are open until 5pm 9 September 2011.

Live exports to Indonesia spark wider debates

On June 2011, the Australian government through Department of Agriculture Fisheries and Forestry (DAFF) responded to media reports of mistreatment of livestock in Indonesia by suspending live cattle export to Indonesia. Subsequently, the Australian government moved into damage control mode, seeking to alleviate the industry losses caused in northern Australia by the ban. The Australian government has also sought to expedite a resolution of the issue with the industry and Indonesian authorities. The irony is that the Indonesian government had previously made the Australian government and industry aware of its phasing-out policy for live cattle imports.

Australian vegan groups and anti-agribusiness groups meanwhile have joined the fray to attack meat production in general or domestic ritual slaughter in particular.

Meat-processing involves the killing of an animal for meat. In Australia, the processes are strictly regulated covering such matters as food safety, hygienic premises and handling, humane treatment of the animals, and maintaining quality throughout the process and for the end-products.

FoodLegal’s Joe Lederman makes the following additional comments:

Slaughter in any form is not a pretty subject to talk or write about. This explains why some people decide to become vegans or to maintain principally vegetarian diets. However for those of us who do eat meat, the question is whether the process can be done humanely or painlessly. Following an Australian Broadcasting Corporation television broadcast of poorly-managed ritual slaughter processing in an Indonesian abattoir, there was an outcry which caused the Australian government to impose a temporary ban on the export of live cattle to Indonesia.

The outcry also included a campaign by some reporters and at least one newspaper editor in the Sunday Age and National Times to call for a ban on the conduct of any ritual slaughter anywhere in Australia without stunning. In my view, this campaign was strange because it included a call to ban kosher slaughter in Australia, despite the fact that the slaughter in Indonesia was not even of the kosher variety and despite the lack of any evidence to suggest any malpractices in Australian kosher abattoirs of the kind witnessed by Australian television cameras in an Indonesia Halal abattoir.

In Australia, the vegans might as well begin with so-called "conventional" animal slaughter  (not the kosher slaughter method). This “conventional” killing of an animal requires "stunning" of the animal. Let it be admitted that the very description of "stunning the animal" is a complete misnomer - the word "stun" conjures up the idea of a temporary shock to the system. The reality is that the "stun" here is a euphemism for destroying the animal's brain: the animal is not "stunned" in the ordinary meaning of that word but actually killed by the stun being a retractable or captive bolt or air-gun shot into the animal's brain (in the case of cattle) or by the electric prods through the back of the head (in the case of sheep).

Furthermore, let's set the record straight: There are people who have made an unwitting error in suggesting that Kosher is either the same or equivalent to Halal slaughter.

From a practical perspective in Victoria and New South Wales where domestic kosher slaughtering is done, it is a highly specialised and supervised process at every step of the way.  The Kosher process is undertaken by a highly-qualified specialist with years of training, long preparatory processes prior to each individual animal slaughtering, a special type of knife with a cut akin to a surgical instrument, a special sized knife that cuts airways and arteries simultaneously in a single movement, a razor-sharpening treatment of the knife in deliberate preparatory processes before the preparation for each animal, positioning of the animal to be unaware of the process out of sight or sound of other animals, speed of process, and numerous other facets limiting any potential for the animal to suffer pain while conscious.

In all of the above, kosher slaughter is a very significantly different set of processes from Halal slaughter.See also our earlier article Legally Kosher Foods (August 2006).

When kosher slaughter is carried out in an Australian abattoir by a qualified Australian Jewish slaughterer, the animal dies almost instantaneously from a sudden of loss of oxygen that renders the animal unconscious - before being able to feel pain.

According to world leading animal ethicists and experts in pain management, and those who have actually witnessed the process, the Kosher method in the manner in which it is performed by Australian kosher practitioners causes less pain to the animal than the so-called conventional “stun” (brain destruction) method. In fact, stunning can be a case of many hit-and-miss situations.

The following is republished from information made available by the Australia/Israel and Jewish Affairs Council:

The Truth about Kosher Slaughter

The Sunday Age has recently published two articles, an editorial, and a blog post alleging that Kosher slaughter causes undue pain to animals, advocating legislation that would effectively end the production of Kosher meat in Australia. 

While the articles repeatedly claimed that unstunned slaughter means an inhumane "up to 20 seconds" of pain for sheep, this conflicts with many expert opinions that confirm that Kosher slaughter is ethical, painless, and humane.

Dr Temple Grandin, Colorado State University

Dr Temple Grandin is considered a leading expert on the welfare of livestock in slaughter plants, writing a highly influential book on the topic. In 2010, she defended appropriately conducted shechita (Kosher slaughtering) in the journal Meat & Poultry. She stressed that with proper restraint equipment and under appropriate Kosher conduct, the animals appears to feel no pain:

"I have observed that cattle held in an upright restraint device had almost no reaction to correctly done Kosher slaughter that was performed with a special long knife," she wrote...The cut with the special knife appeared to not cause pain...From my observations, it appears that when good practices are used, the steer or lamb will stay still and not react to the cut."

Dr. Grandin also conducted a number of experiments in 1994:

Dr Grandin set out to determine whether cattle feel the shechita incision. In one case, the device used to restrain an animal's head during shechita was deliberately applied so lightly that during the incision it could pull its head away from the slaughter instrument. None of the ten animals in the experiment reacted or attempted to pull their heads away, leading Dr Grandin to conclude: "it appears the animal is not aware that its throat has been cut."

Dr Flemming Bager, Danish Veterinary Laboratory

His research indicates that animals slaughtered using Kosher methods did not show any pain:

"The bulls were held in a comfortable head restraint with all body restraints released. They stood still during the cut and did not resist the head restraint." 

Professor Harold Burrow, Royal Veterinary College

Professor Burrow, a long-time professor of veterinary medicine, talks about his experience in witnessing ritual slaughter:

"Having witnessed the Jewish method carried out on many thousands of animals, I am unable to persuade myself that there is any cruelty attached to it. As a lover of animals, an owner of cattle and a veterinary Surgeon I would raise no objection to any animal bred, reared or owned by me being subjected to this method of slaughter."

Dr Stuart Rosen, Imperial College London

In his paper entitled "Physiological Insights Into Shechita", published in The Veterinary Record, Dr Rosen concludes:

"Shechita is a painless and humane method of animal slaughter."

Rather than being the painful process described in recent articles, experts describe it as "humane" and "painless." So what accounts for the disconnect between the studies above and the ones cited in the Sunday Age articles?

While Professors Grandin, Bager, Burrow, and Rosen all witnessed Kosher slaughter and believe it is ethical, the experiments that mention animals remaining conscious for "up to 20 seconds" after the cut were not performed using the proper Kosher method. The two studies that are commonly cited, one from the EU Commission and the other from New Zealand's Massey University, were performed on unstunned sheep, but did not include any of the other pain-reducing techniques that are used in Kosher slaughter.

In an article published in the April 2010 issue of Meat & Poultry - The Journal of Meat and Poultry Processors, Dr Grandin accounts for the discrepancy by explaining the differences between proper Kosher slaughter and regular unstunned slaughter, which show why the Massey University study cannot be used to make conclusions about Kosher slaughter:

"The methods section of the paper did not contain sufficient detail to determine if the wound was held open during the cut. In properly done kosher slaughter, the wound is held open during the cut."

She also points out the vast difference the long Kosher knife can make:

"I have observed that cattle held in an upright restraint device had almost no reaction to correctly done Kosher slaughter that was performed with a special long knife...the cut with the special knife appears to cause no pain."

 In contrast, she recounts:

"I have observed (non-Kosher) slaughter without stunning done with a short knife that caused violent struggling."

It appears that the Sunday Age made a major error by not distinguishing between proper Kosher slaughter and generic unstunned slaughter, which the studies they cite actually refer to.

This article was first published on the AIJAC website.

Letter to the Editor of the Sunday Age

By FoodLegal principal, Joe Lederman

As an Australian food legal compliance expert and observant Jew, I have sufficient knowledge of all slaughter practices in Australia and their history to know that the Sunday Age Editorial "Slaughter Without Stunning not an Act of Faith" (26/6) constitutes a stunning vilification of basic Jewish religious values.

Recent critics of kosher slaughter (including those reported in the Sunday Age) appear to have relied heavily on a discredited New Zealand Ministry of Agriculture and Forestry-funded university study, harshly criticized by the world’s pre-eminent expert on the issue, Dr Temple Grandin.

Dr Grandin, who is Professor of Animal Science at Colorado State University, is the leading animal ethicist and specialist in animal pain management. Her review of the Massey University study is freely and readily available online, and the Sunday Age has no excuse for not mentioning it. As elaborated by Dr Grandin, the study was flawed as it did not actually use the same method as kosher slaughter or even the same sort of long knife. The study then extrapolated results from calves to cows, sheep, and even poultry -- even though their physiognomies are plainly different.

It defies logic that the Sunday Age should incite opposition to kosher slaughter in Victoria or Australia generally. There has been no evidence of abusive handling practices prior to slaughter such as the undeniably shocking and highly stressful methods of restraint or the type of abusive killing methods widely publicized as taking place in Indonesia. No mention was made of the pain involved in conventional slaughter when penetrative bolt stunning advocated by the Sunday Age may regularly miss the mark. The Sunday Age has unsubtly conflated matters to serve questionable ends. Your paper's editorial improperly linked its attack on kosher or halal slaughter to the need to reject 'genital mutilation'. Why not just say 'male circumcision' (the practice is shared by Jewish and Muslim communities)?  Moreover, by quoting the Animals Australia spokesperson that the Jewish community’s religious position is "just a profit-driven issue” your newspaper appears to have endorsed an outrageous untruth. Kosher slaughter is a religious imperative. The Sunday Age should immediately retract what amounts to a medieval libel and contemporary group defamation of the Australian Jewish community.

Yours sincerely,

Joe Lederman

Managing Principal | FoodLegal

Further Reading:

“A scientific comment on the welfare of the sheep slaughtered without stunning”, Department of Agriculture, Forestry and Fisheries [FoodLegal’s Joe Lederman points out that this Australian government DAFF report cites heavily on the New Zealand MAFF-sponsored Massey University Study discredited by Dr Temple Grandin as mentioned above]

European Jews seek help in anti-shechita laws, by Jonah Mandel, Jerusalem Post

Shechita UK, Testimonials

Getting Religious With Slaughter by Dr Temple Grandin

Shooting down religious freedom – The Sunday Age takes aim by Andrew Harris