Current developments in food law and policy in Australia and elsewhere (November 2017)
Published: 13 Nov 2017
Current developments in food law and policy in Australia and elsewhere
By Joe Lederman (Managing Principal, FoodLegal) and John Thisgaard (FoodLegal Consultant)
© Lawmedia Pty Ltd, November 2017
Food Standards Australia New Zealand (FSANZ) news
1. FSANZ calls for submissions on Application A1147 – Food derived from Herbicide-tolerant Cotton Line GHB811
On 9 November 2017 FSANZ issued a call for written submissions from industry regarding Application A1147 by Bayer CropScience to seek approval for food derived from cotton line GHB811, genetically modified to provide resistance to isoxaflutole and glyphosate.
Submissions are due by 21 December 2017.
2. FSANZ approves variations to Food Standards Code
FSANZ announced on 2 November 2017 that it had approved variations to the Australia New Zealand Food Standards Code (Food Standards Code) arising from the following Applications:
· A1130 - Triacylglycerol Lipase as a Processing Aid (Enzyme)
· A1131 - Aqualysin 1 (Protease) as a Processing Aid (Enzyme)
FSANZ has notified the Australia New Zealand Ministerial Forum on Food Regulation (Food Forum) of its approval. The Food Forum must either request a review or inform FSANZ that it does not wish to request a review by 1 January 2018.
3. FSANZ accepts Application A1153 – Endo Xylananse from T. reesei as a Processing Aid (Enzyme)
On 2 November 2017 FSANZ announced that it had accepted Application A1153 by AB enzymes GmbH to include a genetically modified strain of Trichoderma reesei as a permitted source for Endo-1,4 (3) - ß -xylanase (E.C.184.108.40.206).
An opportunity to comment will be made available at a date set by FSANZ.
4. FSANZ accepts Application A1154 – Food derived from insect-protected cotton line MON88702
FSANZ announced on 2 November 2017 that it had accepted Application A1154 by Monsanto Australia Limited to seek approval for food derived from a genetically-modified insect-protected cotton line, MON88702.
An opportunity to comment will be made available at a date set by FSANZ.
5. Food Standards Code amended to permit further processing aids in wine
FSANZ announced on 27 October 2017 that it had published an amendment to the Food Standards Code.
The amendment arises from Application A1127 and permits the use of silver chloride, ammonium bisulphite, chitin-glucan and PVI/PVP as processing aids for wine.
6. FSANZ calls for submissions on Application A1142 – Addition of prescribed method of analysis for resistant starch
On 20 October 2017 FSANZ issued a call for submissions on Application A1142 by Ingredion ANZ Pty Ltd to add a method of analysis for dietary fibre and other fibre content for specifically named fibre content of food (resistant starch).
FSANZ CEO Mark Booth said “The proposed prescribed method of analysis (which is required for nutrition labelling) is used internationally and is the only method in the Codex list of recommended dietary fibre methods for measuring resistant starch. Including an agreed method for resistant starch in the Code will provide clarity and certainty to the food industry and enforcement bodies alike and help underpin consumer confidence.”
Submissions are due by 4 December 2017.
7. FSANZ tables 2016-17 annual report
On 19 October 2017 FSANZ tabled its annual report for the financial year ended 30 June 2017.
The report highlights that during this time, FSANZ had approved 15 amendments to the Food Standards Code without a request for review by the Food Forum. FSANZ coordinated 61 food recalls, the majority of which resulted from undeclared allergens. FSANZ is also currently investigating labelling approaches for providing information on sugars in food.
8. FSANZ abandons Proposal P1034 – Chemical migration from packaging into food
On 12 October 2017 FSANZ announced that it had abandoned Proposal P1034 to assess the public health and safety risk of chemicals which may migrate from packaging materials into food.
FSANZ CEO Mark Booth said “This assessment process has involved considerable work and two rounds of public consultation. It also involved establishing an advisory group with industry and consumer representatives, testing of foods for the presence of packaging chemicals and dietary exposure assessments.”
Part of the aim of Proposal P1034 was to assess the way food packaging is regulated in Australia and New Zealand. The impact of this abandonment on the Australian regulatory framework is explained further in this edition of FoodLegal Bulletin.
Australian Competition and Consumer Commission (ACCC) news
9. Pastacup fined for breach of Franchising Code of Conduct
The ACCC announced on 10 November 2017 that Morild Pty Ltd, the franchisor of Pastacup, was ordered by the Australian Federal Court to pay $100,000 in pecuniary penalties for breaches of the Franchising Code of Conduct.
The Court found that Morild had failed to provide a compliant disclosure document because it did not disclose that its director, Stuart Bernstein, was previously a director of the insolvent Pastacup franchisors. This was held to be “relevant business experience” and was therefore required to be disclosed under the Franchising Code.
Bernstein was also found to be knowingly involved in the contravention by Morild and was fined $50,000.
10. ACCC proposes allowing agribusinesses to jointly purchase energy
On 13 October 2017 the ACCC issued a draft determination that would permit agriculture businesses in the Eastern Energy Buyers Group to run joint tender processes for electricity and gas.
The majority of such businesses operate in Victoria. The arrangement is limited to a consumption of 16 petajoules of gas or 4.5 terawatt hours of electricity. The proposed authorisation is for a period of 11 years. The ACCC is currently seeking submissions from industry regarding its draft determination.
11. ACCC launches anonymous agriculture complaints tool
On 12 October 2017 the ACCC launched an online tool that allows parties in the agriculture sector to anonymously report competition and fair trading issues.
The tool is designed to encourage parties who might otherwise be afraid of retribution from other businesses to report their concerns. The ACCC has launched the tool as part of its investigation into competition and supply chain issues in the agriculture sector, which has included tougher enforcement of the Horticulture Code of Conduct.
Other Australian food regulatory issues
12. Food Regulation current activities
On 10 November 2017 Australian food regulators released priorities for 2017-2021. These priorities are:
· Reducing foodborne illness, particularly related to Campylobacter and Salmonella;
· Supporting the public health objectives to Reduce chronic disease related to overweight and obesity; and
· Maintaining a strong, robust and agile food regulation system.
Each of the priorities considers a number of different issues, many of which are at the stakeholder consultation stage.
One important development is that the implementation of the revised Policy Guideline for Food Safety Management: retail/food service and completion of risk management toolkit project is at stage 4 of 5. Stage 4 will consider which food safety management tools should be applied according to risk (for which State and Territory based stakeholder consultation have commenced). The final stage will determine the best way to implement these in a nationally consistent way.
Furthermore, the report on the investigation of labelling approaches for providing information on sugars is due on November 2017.
Although not related to the priorities, the report on pregnancy warnings on alcohol labels is also due in November 2017.
13. Amendments to competition law pass Parliament
On 18 October 2017 significant amendments to the Competition and Consumer Act passed both houses of Federal Parliament.
The amendments affect prohibitions on uncompetitive conduct including cartel behaviour, price signally, requiring retailers to stock particular items, and resale price maintenance. The changes come after the prohibition on the misuse of market power was amended on 23 August 2017 to introduce an objective “effects” test in addition to the subjective “purpose” test.
The laws apply to all businesses, including food companies. The ACCC will release further guidance to help businesses transition to the changes.
14. Kraft accuses Bega of IP violation in trade mark dispute, Bega denies claim
In a mediation and arbitration request filed in October 2017, the Kraft Foods Group has accused Bega Cheese Limited of infringing its intellectual property.
In January 2017 Bega acquired a number of Kraft products including Kraft peanut butter. As part of the deal, Bega was granted a licence to use Kraft trade marks in Australia until 31 December 2017. The dispute is based on Kraft’s claim that Bega’s redesign of its peanut butter incorporates visual elements of Kraft peanut butter, but replaces the Kraft logo with a Bega logo.
Kraft has claimed that this change contravenes the licence agreement and is an attempt to trade off the goodwill of the Kraft brand. Kraft seeks arbitration in the New York District Court.
Bega denies the Kraft claims.
15. Ad Standards dismisses complaints against plant-based milk
In a decision dated 11 October 2017 the Advertising Standards Board (ASB) dismissed complaints against Lion regarding an advertisement for its plant-based milk products.
The advertisement featured a voiceover repeatedly saying “Milk” while the screen displayed fields of wheat and grains before cutting to images of an oat milk and soy milk product. The complainant claimed that these products did not meet the definition of milk, and that it was misleading to call such products milk.
The ASB determined that the advertisement did not represent that the products were produced by the mammary glands of mammals, and did not claim that the products were nutritionally equivalent to dairy. The ASB also noted that the product was compliant with the Food Standards Code, and for these reasons found that the advertisement was not misleading.
16. China lifts ban on Australian beef producers
On 31 October 2017 it was reported that China had lifted a ban on six Australian beef exporters.
Imports were reportedly halted in July 2017 due to inconsistencies in inner and outer product labels. The affected producers were Australian Country Choice, Thomas Foods International, Kilcoy Pastoral Company, JBS Beef City, Prime JBS and Northern Co-operative Meat Company. Together, these companies process almost a third of Australia’s beef trade to China.
17. Woolworths signs deed with Fair Work to protect trolley collectors
On 11 October 2017 the Fair Work Ombudsman announced that it had entered into a compliance partnership with Woolworths in order to protect the working conditions of trolley collectors working for Woolworths.
Woolworths engages contractors to provide trolley collection services. A June 2016 report by the Fair Work Ombudsman found instances of exploitation among trolley collection workers. The deed requires Woolworths to monitor and regulate its network of trolley services to ensure contractors at its sites are paying their workers correctly and meeting all workplace obligations.
Woolworths will also provide back-pay for trolley collectors who have ben underpaid, where it is not possible for the payments to be made by their direct employer.
International food regulatory issues
18. MPI data shows no food safety risks from everyday food packaging
On 12 October 2017 the New Zealand Ministry for Primary Industries (MPI) announced that data it had collected showed no food safety risk associated with the use of everyday food packaging materials.
The announcement coincides with the abandonment of FSANZ Proposal P1034. As part of this Proposal, the MPI conducted its own study on the transfer of chemicals from a range of packaging materials onto foods.
MPI Acting Manager Food Risk Assessment Dr Andrew Pearson said "We then looked at the data and carried out a thorough risk assessment. As a result we have found that while there were occasional cases where chemicals from food packaging materials transferred onto food, this occurred at low levels and there is no food safety risks for consumers".
19. MPI holds workshops to improve catchment operations
On 8 November 2017 the MPI announced a series of workshops to improve the productivity and sustainability of the Whakaki catchment.
The workshops are being held in response to concerns that the catchment has water quality and erosion issues that are detrimentally effecting the economic sustainability of the area. The MPI currently has no proposed outcome, but is seeking suggestions and submissions from the local community.
20. Class action launched against “diet” soft drinks
Three lawsuits were filed in New York during October 2017 against major soft drink manufacturers.
The lawsuits claim that the manufacturers have engaged in unfair and deceptive business practices and false advertising by labelling their products as “diet”. It is alleged that the use of “diet” will lead consumers to believe that consumption of the drinks will help them to lose weight, but that “artificial sweeteners can actually have the opposite effect by increasing appetite”.
21. Federal law proposed to toughen stance on organic claims
In October 2017 US lawmakers introduced a bill into Federal Congress to impose tougher requirements on products that claim to be organic.
The law specifically targets product that falsely claim to be organic and would increase enforcement and compliance procedures in relation to organic certification. Importers, brokers, ports and online auctions would not be able to label products as organic without holding sufficient organic certification. Currently, organic agricultural products that are fumigated at US ports are permitted to be sold as organic.
22. Food Standards Agency updates raw egg guidance
On 11 October 2017 the UK Food Standards Agency (FSA) issued updated guidance for the consumption of raw eggs.
The FSA now advises that infants, children, pregnant women and elderly people can safely consume raw or lightly cooked eggs that are produced under the British Lion Code of Practice. The updated guidance is based on recent scientific evidence that such consumption is safe. Previously, the FSA had advised that vulnerable groups should not consume raw or lightly cooked eggs due to the possible presence of bacteria.
The British Lion Code of Practice mandates particular safety measures, including vaccination of hens and testing for salmonella, and imposes stricter hygiene standards. The new guidance does not apply to individuals who are severely immunocompromised.
23. EFSA announces health concerns for furan in food
On 25 October 2017 the European Food Safety Authority (EFSA) outlined health concerns arising from the consumption of furan and related compounds 2- and 3-methylflurans.
ESFA stated that exposure to these substances can lead to possible long-term liver damage. The substances form naturally when food is cooked. The most vulnerable group of consumers are infants, due to high consumption of ready-to-eat jarred foods and canned foods. Older consumers are mostly exposed to the substances through grain-based foods and coffee.
24. Italy imposes labelling law for Italian products
On 15 September 2017 the Italian government made a legislative decree requiring all food and beverage products of Italian origin to include the address of their processing factory on pack.
The new law applies to food and beverage products that have been produced or packaged in Italy. The labels of such products must state the address of the Italian factory where the product was either produced or packaged. Food producers have expressed concern that this could act as a barrier to trade within the European Union.
25. China to streamline drug approvals
On 8 October 2017 the Chinese Government announced a review of the system for reviewing and approving drugs and medical devices.
Under proposed changes, there will be fewer impediments to applying for approval for a clinical trial. International drug manufacturers will be able to use data from overseas clinical trials, provided that the data meets particular standards. Approval will be fast-tracked for drugs in urgent need and for rare diseases. China will also adopt a patent linkage system and increase data protection for those seeking approval.
26. Israel to introduce coloured indicators to indicate healthiness on labels
On 5 November 2017 the Israeli government announced a plan to require products high in sugar, saturated fats and sodium to display a red label on the front of pack.
The label will initially apply to products containing more than 22.5 grams of sugar, 6 grams of saturated fats, or 800 milligrams of sodium per 100 grams. After 18 months of operation, this limit will be reduced to products with over 15 grams of sodium, 5 grams of saturated fats or 500 milligrams of sodium per 100 grams. Food companies will also be able to voluntarily display a green label if their product satisfies criteria set by the Health Ministry.
There is currently no set date as to when the changes will come into effect.