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Current Developments in food law and policy in Australia and elsewhere (February 2018)

Published: 14 Feb 2018

Current Developments in food law and policy in Australia and elsewhere (February 2018)

By Katherine Boyles, (FoodLegal Consultant) and Joe Lederman (Managing Principal, FoodLegal)

© Lawmedia Pty, Ltd, February 2018

Food Standards Australia New Zealand (FSANZ) News

1.    New applications made to FSANZ: A1156 and A1157

On 5 February 2018, FSANZ announced that it had completed administrative assessments and accepted the following Applications:

·         A1156Food derived from Super High Oleic Safflower Lines 26 and 40 - GO Resources Pty Ltd submitted to FSANZ an application for the inclusion of safflower with high oleic acid composition in Standard 1.5.2 – Food Produced Using Gene Technology.

·         A1157 Enzymatic production of Rebaudioside M - Blue California is seeking to amend Standard 1.3.1 and the related schedules for rebaudioside M (steviol glycosides) to include a new multi-step biosynthetis pathway to manufacture high-purity rebaudioside M.

Opportunities to comment will be available at a later publicly notified date.


2.    FSANZ calls for submissions on Application A1144 – Re-categorising Coconut Milk for Food Additive Permissions

On 5 February 2018, FSANZ called for written submissions on whether the food category for food additive permissions for coconut milk products is more appropriate under fruits, as opposed to beverages.

Submissions close 6pm 19 March 2018.


3.    FSANZ calls for submissions on Proposal M1015 – Maximum Residue Limits

On 12 January 2018, FSANZ called for written submissions on draft variations to the Food Standards Code arising from Proposal M1015 – Maximum Residue Limits (MRL). This proposal is to consider varying certain MRLs for residues in certain agricultural or veterinary chemicals occurring in food products.

Submissions close 6pm 26 February 2018.


4.    FSANZ notified by APVMA that variations to Schedule 20 will likely occur; and gazettal of amendments to Schedule 20

On 12 January 2018, FSANZ stated that the APVMA has notified it of applications or variations to the APVMA MRL standard that if granted will likely result in changes to Schedule 20.

These changes have been registered on the Federal Register of Legislation by the APVMA.


5.    FSANZ publishes Amendment No. 176 to the Food Standards Code

On 11 January 2018, FSANZ published Amendment No. 176 to the Food Standards Code. The amendments resulted from the following applications:

·         A1130 – Triacylglycerol Lipase as a processing aid (enzyme); and

·         A1131 – Aqualysin 1 (protease) as a processing aid (enzyme).


6.    FSANZ accepts Application A1155 – 2’-FL and LNnT

On 12 January 2018, FSANZ accepted the Application A1155 for 2’-FL and LNnT to be included as novel foods in infant formulas and other products (specifically milk products).

The application seeks to permit voluntary use of 2’-O-Fucosyllactose (2’-FL) on its own or with Lacto-N-neotetraose (LNnT). They are produced by similar, but separate proprietary fermentation processes as novel foods for infant formula, follow-on formula, and formulated supplementary foods for young children.

An opportunity to comment will be provided at a later date set by FSANZ.


Australian Competition and Consumer Commission (ACCC) News

7.    ACCC issues guidance on free range egg standard

On 6 February 2018 the ACCC released guidance for industry on its enforcement approach to the National Information Standard on free range eggs.

The Information Standard comes into effect on 26 April 2018 and provides that egg producers cannot use the words “free range” on cartons unless the eggs were laid by hens that had meaningful and regular access to the outdoors and were able to roam and forage outdoors. The hens must not have been stocked at a density of more than 10,000 hens per hectare and the stocking density must be prominently displayed on the packaging or signage.

The ACCC announced that it will monitor the market to ensure compliance of any free range claims. Its guidance also highlights that the use of any other images or words that imply free range could be captured under the Australian Consumer Law.


8.    ACCC reports that alleged false representations, misleading conduct, and consumer guarantees remain the top issues reported to them

On 22 January 2018, the ACCC reported that 5000 small businesses contacted the ACCC in the second half of 2017, as opposed to 3700 in the first half, as per the Small Business in Focus Report (1 July to 31 December 2017). The main issues reported to the ACCC include alleged false representations, misleading conduct, and consumer guarantees.

The ACCC indicated that there is a continued need to encourage small businesses to learn about their rights and responsibilities, and a need for up-to-date information and advice on how to deal with competition and consumer challenges.


9.    ACCC reports a 39% increase in consumer guarantee reports in 2017

On 8 January 2018, the ACCC reported a growing trend in consumer guarantee issue reports: 39% increase from 2017 versus 2016 (29,000 vs 21,000 reports). This is attributed to more people having trouble enforcing their consumer guarantee rights.


Other Australian food regulatory issues

10.  Victorian state agriculture ministers press for laying hens’ cages to be ‘furnished’

In the week of 22 January 2018, the Victorian Government announced that it would be backing proposed changes to have all hen cages furnished with perches, nests, and scratch pads within 10 years.

The Victorian Farmers Federation Egg Group indicated that furnishing current cages is not likely possible, and would require the replacement of entire cages. Animal health Australia estimated that the cost to implement this would be $225 million in Victoria, as opposed to $100 million in Western Australia.

A national review into poultry welfare standards and guidelines is currently underway. No end date is set.


11.  Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP): opportunities for Australian farmers

In the week of 22 January 2018, 11 countries signed the CPTPP trade agreement. The 11 countries are: Australia, New Zealand, Singapore, Japan, Chile, Brunei, Peru, Vietnam, Malaysia, Mexico, and Canada.

This agreement is expected by the Australian National Farmers’ Federation to make Australian exports more competitive in the global market, especially in Japan with the removal of trade tariffs there.

Australian beef and dairy (particularly cheese) are expected to be very competitive in the Japanese market. Wine will benefit also from the removal of tariffs in multiple signatories, and wheat and cereals are expected to benefit especially from the removal of tariffs in Mexico and Canada.


12.  Therapeutic Goods Administration (TGA) changes patient access to medicines containing codeine

As at 1 February 2018, medicines containing codeine were no longer available without a prescription.

Current research shows that low-dose (<30mg) ‘over the counter’ codeine containing medicines do not provide more pain relief, nor have much additional benefits compared to similar pain relief medicines that do not contain codeine. The use of codeine is associated with many health risks as it is an opioid containing medicine. It can cause: opioid tolerance, dependence, addiction, poisoning, and/or death in high doses.


13.  TGA is seeking comments from interested parties on its ‘Prescription strong’ (Schedule 8) opioid use and misuse consultation

On 19 January 2018, the TGA invited interested parties to comment on options for a regulatory response to the potential misuse of Schedule 8 opioid medications in Australia.

The document for consultation was released on 19 January 2018, submissions to the consultation close on 2 March 2018.

Feedback will be released after the submissions have been considered.


14.  The new Uniform Recall Procedure for Therapeutic Goods (URPTG) takes effect 15 January 2018

On 12 January 2018, the TGA posted a reminder to sponsors of therapeutic goods that the new URPTG has taken effect as of 15 January 2018. Sponsors must now follow this version of the URPTG, as the 2004 version no longer has effect.


15.  New South Wales Ombudsman provides update on review of water compliance and enforcement

On 15 November 2017, the New South Wales Ombudsman published its report on water compliance and enforcement.

The NSW Ombudsman stated that it is midway through its investigation, and that a new Ombudsman would be commencing in December 2017. The report found that three previous reports into water compliance and enforcement were buried, and that there were “serious system failures” in how the state’s water policies and management. Previous Ombudsman reports in 2009, 2012, and 2013 found similar issues with compliance and enforcement.

Multiple issues are expected to be addressed in the final report in early 2018.


International food regulatory issues

New Zealand

16.  The Ministry for Primary Industries (MPI) opens submissions for annual fishing sustainability review

On 12 January 2018, the MPI opened submissions for their annual review of catch limits and other management settings for the start of the 2018 fishing year.

Management Director Stuart Anderson stated: "Combined with the best possible scientific information, feedback from the public will enable MPI to provide the Minister of Fisheries with advice to assist him to make decisions on a range of fish stocks.”

Submissions closed 9 February 2018.


17.  MPI tests confirm Mycoplasma Bovis in milk

On 9 January 2018, the MPI’s Animal Health Laboratory confirmed that milk samples from a farm in Ashburton, New Zealand, contained the bacterial cattle disease mycoplasma bovis. There are no symptoms amongst the 600 animals on the farm, however, and the farm has been under a precautionary quarantine since Christmas 2017. Links to other affected properties are being traced.

United States

18.  Chinese developed Huahui-1 genetically modified rice approved by Food and Drug Administration (FDA) for use in the US

On 20 January 2018, the FDA announced that it had found no safety or regulatory issues with foods derived from Huahui-1 rice, making it now possible for the rice to be exported to the US and sold to general consumers.

Huahui-1 is a genetically modified rice that is resistant to insects. US Department of Agriculture approval will be required before the rice can be grown in the US, however. The Chinese Ministry of Agriculture has previously approved Huahui-1 and other genetically modified crops to be used for research and development, but banned them from commercial cultivation and sale.


United Kingdom

19.  The Food Standards Agency (FSA) carries out first prosecution of a business for failing to display food hygiene rating

On 9 January 2018, the Belfast Magistrate’s Court heard the case against the proprietor of a café for contravening sections 7(1) and 10(1) of the Food Hygiene Rating Act (Northern Ireland) 2016. The proprietor was fined £250, and ordered to pay the legal costs of £120.

This is the first case regarding failure to display food hygiene ratings in Northern Ireland.


20.  Regulatory implications for the food industry in the UK exit from the EU

On 1 February 2018, the European Commission Directorate General for Health and Food Safety published a notice to stakeholders regarding the withdrawal of the United Kingdom from the European Union and the effect that would have on its food law.

All EU primary and secondary law ceases to apply to the UK from 30 March 2019, making the UK a ‘third country’ (i.e., not a member of the EU). As of the withdrawal date, EU food law will no longer apply to the UK. This has implications the regulations for food labelling, ingredients, composition, contaminants, contact materials, residue limits, hygiene/handling rules, organic production, food business operators (EU authorisation requests will now be required), food exposed to ionising radiation, recycled plastic materials, and certificates for organic production.


European Union

21.  The European Food Safety Authority (EFSA) finalising new legislation for reducing glycidyl fatty acid esters (GE) in foods

On 10 January 2018, the EFSA reported that the European Commission is finalising new legislation which is intended to reduce GE levels in foods and vegetable oils.

An update was added for 3-monocholoropropane diol (3-MCPD) and 3-MCPD esters, which are food processing contaminants formed unintentionally during processing, found mainly palm oil, and other processed foods. This is in light of the United Nations’ Joint FAO/WHO Expert Committee on Food Additives establishing a different safe level for 3-MCPD.


22.  The EFSA indicates concern for hydroxyanthracene derivatives in food

On 23 January 2018, the EFSA confirmed that there are health concerns with respect to hydroxyanthracene derivatives in food. These substances allegedly are genotoxic (damage DNA) and contribute to the development of cancer in animal studies. A safe daily intake level has not yet been determined.



23.  Suvow Co Ltd gains registration for nine organic product formulas

On 5 February 2018, Suvow Co Ltd, a Chinese milk powder provider, obtained registration in China for nine of its organic product formulas, three of which are infant formulas.

China’s Organic Product Certification Management Measures require organic products sold on the Chinese domestic market to be certified by the China Certification and Accreditation Administration. This is in light of hypothesised rapid growth of China’s infant milk power market due to the new two-child policy.


24.  Memorandum of understanding between the China Food and Drug Administration and the Ministry of Health of the Czech Republic on the Joint Organisation 16+1 Drug Regulatory Cooperation Summit

On 24 January 2018, the Vice Minister for the China Food and Drug Administration and the Vice Minister for the Ministry of Health of the Czech Republic signed a memorandum of understanding between the two countries.

The memorandum relates to the Joint Organisation 16+1 Drug Regulatory Cooperation Summit. Both countries will jointly hold the summit in May 2018 in Prague. This is intended to strengthen the cooperation between China and Eastern European countries in the drug regulation field.