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Current Developments in food law and policy in Australia and elsewhere (December 2017)

Published: 18 Dec 2017

Current Developments in food law and policy in Australia and elsewhere (December 2017)

By Katherine Boyles, John Thisgaard (FoodLegal consultants) and Joe Lederman (Managing Principal, FoodLegal)

© Lawmedia Pty, Ltd, December 2017


Food Standards Australia New Zealand (FSANZ) News

1.    FSANZ changes the name and scope of proposal P1030

On 28 November 2017, FSANZ issued a notice that the scope and name of the proposal P1030 has been changed. P1030 was initially intended to introduce self-substantiated health claims for sports foods and electrolyte drinks; however, after the first round of industry submissions FSANZ altered its scope to consider only electrolyte drinks.

The impact of this change and the labelling implications for sports foods are considered in a separate article in this edition of FoodLegal Bulletin.

The second call for submissions from industry is scheduled to be held during June 2018.


2.    FSANZ calls for public comment on proposed changes to Schedule 20

On 28 November 2017, FSANZ called for public comment to the Australian Pesticides and Veterinary Medicines Authority (APVMA) on the proposed changes to Schedule 20.

The APVMA has registered these amendments on the Federal Register of Legislation.


3.    FSANZ publishes Amendment No. 175

On 7 December 2017, FSANZ published Amendment No. 175 to the Australia New Zealand Food Standards Code. Amendments from the below applications and proposal were incorporated:

·         M1014 – Maximum Residue Limits

·         A1139 – Food derived from Potato Lines F10, J3, W8, X17, and Y9

·         A1140 – Food derived from Herbicide-tolerant Canola Line MS11


Australian Competition and Consumer Commission (ACCC) News

4.    ACCC takes court action over allegedly misleading therapeutic claims

On 6 December 2017, the ACCC reported instituting proceedings against GlaxoSmithKline Healthcare Australia Pty Ltd and Novartis Consumer Health Australasia Pty Ltd in the Federal Court of Australia alleging false or misleading representations.

The issue is with the marketing of the Voltaren Emulgel and Osteo Gel products. The two products have the same formulation with the same amount (11.6mg/g) of diclofenac diethylammonium, but the Osteo Gel is marketed to better treat osteoarthritic health conditions than the Emulgel. The ACCC alleges this is not the case.

The case bears some similarities with the 2016 case where a AUD $6 Million fine was awarded against Reckitt Benckiser regarding the Nurofen ‘specific pain’ relief range, all of which contained the same active ingredient but were marketed as if designed for different areas of pain.


5.    ACCC outlines improvements to meat industry competition ahead of productivity review

On 22 November 2017, the ACCC outlined a number of new regulatory information requirements that would enhance productivity within the Australian red meat industry.

The improvements related to better dissemination of information, including distribution of weekly slaughter numbers, carcase measurements and other market information.  ACCC Commissioner Mick Keogh said: “critically important factors in maintaining the necessary industry confidence to make these investments are the transparency of market information, and the robustness of rules governing market behaviour.”

The ACCC announcement comes as part of the ACCC’s commitment to review Australia’s beef and cattle market conditions with the objective of recommending regulatory changes to enhance market productivity.  The review will be conducted throughout 2018.


6.    ‘2016-17 Bulk Wheat Ports Monitoring Report’ issued by ACCC

On 13 December 2017 the ACCC released a report to the Department of Agriculture and Water resources which highlighted issues in the export activity and capacity allocation of Australia’s bulk grain export supply chains, and the continued importance of the Port Terminal Access (Bulk Wheat) Code of Conduct.

The ACCC Commissioner Cristina Cifuentes stated: “Without fair and transparent port access, exporters may reduce their participation in export markets, reducing the marketing options for growers and ultimately the price that they can secure for grain.”

The ACCC advises that continued industry-specific regulation for bulk wheat port terminal services is required, as well as improving and strengthening the Port Terminal Access (Bulk Wheat) Code of Conduct.


Other Australian food regulatory issues

7.    Ministerial Food Forum decisions from recent Melbourne meeting

The Australia and New Zealand Ministerial Forum on Food Regulation (Ministerial Food Forum) met for the last time in this calendar year of 2017 in Melbourne on 24 November.

The meeting had the following outcomes:

·         Food regulation priorities were set for 2017-2021 to include reducing foodborne illness, supporting public health objectives to reduce overweight and obesity, and maintaining a strong, robust and agile food regulation system;

·         Regulators will look closely at foods that are labelled as “not for human consumption” but are marketed alongside regular food products;

·         Further reviews will be undertaken in relation to mandatory energy and pregnancy warning labels for alcoholic beverages, and the circumstances in which alcoholic beverages may make nutrition content claims;

·         The Ministerial Food Forum will continue to examine options to provide more adequate contextual information about sugar content on food labels.

The next Ministerial Food Forum meeting is due to take place in Brisbane on 29 June 2018.


8.    Therapeutic Goods Amendment (2017 Measures No. 1) Bill 2017

On 30 November 2017, the ‘Therapeutic Goods Amendment (2017 Measures No. 1) Bill 2017’ and the ‘Therapeutic Goods (charges) Amendment Bill 2017’ were referred by the Senate to the Senate Community Affairs Legislation Committee for inquiry and report.

The Bill proposes to introduce a number of changes including a new approval pathway for therapeutic goods as “provisionally registered goods”. It also seeks to introduce a new application and assessment process for intermediate risk medicines that seek to use indications that are not otherwise permitted.

Submissions for the inquiry close 12 January 2018, and the reporting date is 2 February 2018.


9.    Victorian Mandatory allergy reporting bill

A bill, the ‘Health and Child Wellbeing Legislation Amendment Bill 2017’ passed its third reading in the Victorian Parliament on 30 November 2017.

The Bill is set to introduce new mandatory reporting laws in Victoria in certain cases, and was introduced after the death of a 10 year old child in 2013 due to an anaphylactic reaction to dairy milk in an incorrectly labelled ‘natural’ coconut drink, the label of which stated no dairy based ingredients, but did contain undeclared cow’s milk.

The new reporting requirements and the obligations they impose for industry are explained in detail in a separate article in this edition of FoodLegal Bulletin.


10.  Ad Standards Board dismisses “WTF” billboard complaint

In a decision dated 8 November 2017 the Advertising Standards Board (ASB) dismissed a complaint against restaurant chain Nando’s Australia Pty Ltd.

The advertisement took the form of a billboard and featured the text “$11WTF – Every Wed, Thur, Fri”. A complaint alleged that this amounted to the use of obscene language. The ASB found that the use of “WTF” by itself did not amount to strong or obscene language, and that in this instance, could be taken to refer to days of the week.


11.  National poultry welfare standard open for public consultation

On 27 November 2017 Australian Animal Welfare Standards and Guidelines opened public consultation for its draft welfare standards and guidelines for poultry.

The standards apply nationally and set requirements for how poultry is to be kept and farmed. A key issue to be addressed by submissions is the treatment of caged poultry. Europe, the UK and New Zealand have all shifted to cage-free egg production, however the egg industry has said that 70 percent of Australian consumers still purchase caged eggs.

Submission close on 26 February 2018.


12.  “Manuka honey” trade mark lapses

On 3 August 2017 a certification trade mark for MANUKA HONEY filed by the New Zealand based Manuka Honey Appellation Society Inc. (MHAS) lapsed in Australia, with no new application having yet been filed.

The lapse follows the dispute that arose soon after the application was filed with the Australian Honey Bee Industry Council, who disputed MHAS’ claim that only the bees that collect nectar from the New Zealand ‘Manuka’ tree could make Manuka honey, as the Manuka plant is also present in Australia. The Australian Manuka Honey Association was also established in September 2017 in Melbourne to file the opposition to the MANUKA HONEY trade mark application by the New Zealanders.

The application was filed in accordance with the Paris Convention in China, the US (no decision yet handed down), and the UK (where the application remains under examination). MHAS is currently challenging a finding by the Intellectual Property Office of New Zealand to refuse registration of the trade mark in New Zealand.


13.  CHOICE consumer group advocates for mandatory kilojoule labelling for alcoholic beverages

In December 2017, the CHOICE consumer group started its campaign to encourage the Australian Federal Government to no longer exempt alcoholic beverages from the same nutritional labelling requirements for food and other beverages.

The CHOICE website claims that “due to a legal loophole, alcoholic drinks like beer, cider, wine, and spirits don’t need to give any nutritional information. That means you don’t get to know the energy (kilojoules) in what you drink… with almost two-thirds of Australian adults being classified as obese or overweight, it is no longer tenable that alcoholic beverages are exempt from providing this essential nutritional information.”

Numerous alcoholic beverage companies do already provide nutritional information for many of their beverages, but this is a voluntary act, which CHOICE acknowledges, but claims that this is generally done for the drinks lower in kilojoules.

Health ministers are holding a public consultation on this issue in 2018.


14.  Food safety ‘dipstick’ test for pathogen strains in foods: patent filed in Australia

On 24 November 2017, the Australian Institute of Food Safety reported that researchers at the University of Queensland have designed a ‘dipstick’ that is able to purify DNA and RNA from organisms in a minimum 30 seconds, reducing the need for expensive and inefficient laboratory sample testing.

The dipsticks were originally developed to extract DNA and RNA for particular plants, but it has since become apparent that the dipsticks can also purify DNA from many important species in agriculture. The sticks have thus far in their testing been used to diagnose sick trees, test livestock and human samples for bacteria, test food for pathogens, and risks in the environment (e.g. contaminated water).


International food regulatory issues

New Zealand

15.  New Zealand MPI launches national program for food safety guidance

On 7 December 2017, the Ministry for Primary Industries (MPI) announced a new national program for food safety guidance for businesses with medium to low risk food safety concerns. This operates in conjunction with the Food Act 2014 (NZ).

MPI Director Peter Thomson stated: "these guides help a wide range of food businesses from dairies to juice and confectionery manufacturers to keep their food safe for consumers. The numbers of Kiwis getting sick from food-related bugs needs to come down. We also need to protect groups like small children, the frail elderly, and people with compromised immune systems.”

The guidance applies immediately and acts as a resource in interpreting the Food Act 2014 (NZ).


16.  Two men fined for illegal crayfish sale

The New Zealand MPI announced on 20 November 2017 that two men had been fined a total of more than $10,000 NZD for offences relating to the sale of crayfish.

The men admitted to catching crayfish in excess of the daily bag limit of 6 and gaining a benefit from such possession. The vehicles and fishing equipment used in the committing of the offences were forfeited to the Crown.


17.  New Zealand MPI issues reminder for businesses making “gluten free” claims

On 1 December 2017, following the recall of a buckwheat flour found to contain gluten, the MPI released a notice reminding food businesses who make ‘gluten free’ claims with respect to certain products to make sure their suppliers hold evidence to support any allergen claims.

The MPI encouraged food business to have ‘robust processes’ in place with their suppliers to ensure safety for coeliac consumers, and to ensure that consumers who follow a gluten free diet are getting what the label on the product claims.

A ‘trace-back’ to find more affected products is currently being conducted.


United States

18.  Action launched alleging “wild-caught” “naturally smoked” fish is misleading

In December 2017, a class action was filed in New York against Bumble Bee Foods LLC. The company is accused of violations of multiple consumer laws, and false representations that their “premium select medium red smoked salmon filets in oil” product had been wild-caught fresh in Alaska and naturally smoked. It is alleged that in fact the salmon is farmed Chilean coho which is artificially coloured, and to which artificial smoke flavour has been added.

The suit is concerned with the similarity of the imagery on the packaging between the farmed salmon and the wild salmon, but that the farmed salmon does not disclose its origin on its packaging.


19.  Sugar levels in cereals: class action against Kellogg, Post, and General Mills in Southern California

A class action filed on 16 November 2017 in the southern district of California (citation: Patrick McMorrow and Marco Ohlin et al v Mondelez International No. 3:17-cv-03327) alleges false representations and breaches of other unfair competition laws because the “belVita” products are targeted to consumers who are ‘health conscious’, when the products are alleged to be ‘high’ in sugar. The claims revolve around the known health risks of diets high in sugar and the claims on the belVita label of “part of a balanced breakfast”, and “nutritious, steady energy all morning” being misleading as to the ‘high sugar content’ of the product. Of note, no claims as to the sugar content of the belVita biscuits are made on their packaging.


20.  Failure to disclose ‘high pressured processing’ on packaging

On 28 October 2017, a class action was filed in the eastern district of New York regarding the failure to disclose the processing that had been undergone by a juice product.

The plaintiff alleges that the juice manufacturer’s failure to disclose the high pressured processing (HPP) of their cold pressed juices was a voluntary provision of limited information intended to mislead, as consumers expect only that the products have been cold pressed in absence of statement that HPP occurs.

Similar cases filed by the same firm have been dismissed this year.


United Kingdom

21.  FSA publishes Science Report on Food Hygiene Rating Scheme

On 4 December 2017, FSA Chief Scientific Advisor, Professor Guy Poppy examined the Food Hygiene Rating System (FHRS), in particular where it is mandatory.

The FHRS is required to be displayed by some restaurants in the UK, and is supposed to provide a representation of how hygienic the premises are. Professor Poppy found that since its introduction in 2010 in Wales and Northern Ireland, the publication of food hygiene ratings have continually improved food hygiene at places where people buy or consume food. Of the 430,000 food businesses that participate in the FHRS, 67% achieved a rating of ‘5-very good’ (top rating), and 95% achieved a rating of ‘3-generally satisfactory’ or better.

The FSA hopes to introduce similar mandatory displays of ratings in food businesses in England in the near future.


22.  UK Brewery amends beer can design after industry body finds that it appealed to children

In December 2017, the Portman Group (the self-regulating body of the UK alcohol industry) found that Tiny Rebel Brewing Company’s ‘Cwtch’ 330ml beer cans would be associated with soft drinks due to its boldly coloured graffiti style graphics featuring a bear.

Tiny Rebel Brewing Company’s intentions were found clearly not to have been to promote consumption of the beer by children, with ‘Welsh Red Ale’ clearly visible on the packaging, an alcohol strength statement, a reference to, and the word ‘beer’ in 16 languages. The Portman Group has encouraged alcoholic beverage companies to be ‘extremely vigilant’ in the use of themes that might appeal to children.

All of the cans will be changed by April 2018.


23.  FSA announces National Food Crime Unit 12 month progress

On 6 December 2017, the Food Standards Agency (FSA) Board reviewed the 12 month progress of its National Food Crime Unit (NFCU). The FSA noted in particular a reduction in mortalities due to a highly toxic ‘fat-burner’ called DNP. The Board hopes to develop further the investigative capacity of the NFCU with further government funding.

The Board also confirmed its support for strengthening contributions from regulated private assurance schemes with respect to assurance of compliance, test management, and culture around food hygiene, safety, and standards.

Considerations by the Ministerial Group on Food Crime as to further government funding for the NFCU will be available in January 2018.


24.  UK Government agencies publish labelling guidance for consumers

On 29 November 2017, the FSA, Waste and Resources Action Plan (WRAP), and the Department for Environment Food and Rural Affairs (DEFRA) released food labelling guidance on industry standards for food manufacturers, retailers, and brands to facilitate adherence with food safety and legal requirements.

The guidance is intended to reduce the food waste each year in the UK, a third of which is due to how consumers interpret the current food labelling system. Use of logos next to text has been encouraged to aid consumer understanding.

The Chairman of the FSA, Heather Hancock, stated: “I welcome this clear guidance to help tackle food waste, without compromising the safety of food. It will help businesses supply food that is properly described and stored, and safely provided to consumers. Reducing food waste is really important to consumers. It’s a commitment we at the Food Standards Agency share with WRAP and Defra, and a growing majority of food businesses up and down the country.”


European Union

25.  New European Union acrylamide legislation

On 29 November 2017, the FSA reported the implementation in the EU of new legislation to improve food safety by managing population acrylamide exposure.

Acrylamide is a compound that is formed through the Maillard reaction when foods high in starch are cooked at high temperatures. There is no direct evidence of acrylamide causing cancer in humans, but there is evidence of it causing cancer in laboratory animals.

The legislation will apply from April 2018.


26.  EFSA proposes new approach to help risk assessors use epidemiological data in analysis of active chemical substances in pesticides

On 31 October 2017, EFSA reported a new approach to help risk assessors utilise epidemiological data in their risk assessments on active chemicals used in pesticides.

The review identified multiple weaknesses and limitations in the reliability and applicability of epidemiological research to pesticide risk assessments. The Panel on Plant Protection products and their Residues (PPR) proposed the use of epidemiological research in combination with toxicology research as complementary methods in risk assessments. Additional recommendations were also made on methods to improve the quality and reliability of the epidemiological research and data used.

27.  EFSA provides update on assessment on risks to bees from neonicotinoid pesticides

The EFSA’s risk assessments on the possible risks to bees from clothianidin, imidacloprid, and thiamethoxam are expected to be finished in February 2018.

This consultation involved the consideration of a large amount of complex data by pesticide experts from the EU Member States. Restrictions had been placed on the above pesticides in 2013 after an earlier risk assessment by the EFSA.


28.  China amends anti-unfair competition law

On 4 November 2017 the Chinese Government issued amendments to its competition laws.

The most significant amendment has been to introduce provisions prohibiting “confusing acts”, which are acts that are intended to cause consumers to mistake the products of one company for those of another, or imply a relationship or endorsement in relation to a product that does not exist.

The amendments also prohibit false commercial promotions (for example, doctored consumer reviews), the use of misleading information to damage the reputation of another business, and online behaviour that is intended to influence consumer choice.

The new laws will apply from 1 January 2018.