Why Australian consumers are eating GM food without knowing it

By Joe Lederman and Charles Fisher
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, June/July 2008

The following article explores in detail two of the regulatory carve-outs in the GM Labelling Food Standard in the Australia New Zealand Food Standards Code: the “highly-refined foods” carve-out and the “unintentional presence” carve-out.

Standard 1.5.2 of the Australia New Zealand Food Standards Code

Standard 1.5.2 of the Australia New Zealand Food Standards Code (“the Food Standards Code”) has several labelling exceptions. This means that if a food either contains a genetically modified organism (“GMO”) or has been manufactured using a GMO but meets the criteria of these regulatory carve-outs, the food product will not have to put on its label the mandatory declaration that the food product contains genetically-modified material.

This article will explore two of the carve-outs in detail, as these two carve-outs are more likely to affect the level of GMOs in unlabelled food products and, consequently, consumer choice.

The carve-out for “highly refined food”

In Standard 1.5.2 of the Food Standards Code, section 4 (1)(c) excludes from the definition of “genetically modified food” (and from the labelling requirements in the Standard):

highly refined food, other than that with altered characteristics, where the effect of the refining process is to remove novel DNA and/or novel protein.

This means that foods that have come from genetically engineered sources but undergone a refining process to remove the novel DNA do not have to be labelled as containing “GM”. Examples include oils from GM canola and cottonseed.

The Food Standards Australia New Zealand (“FSANZ”) User Guide for Labelling Genetically Modified Food gives us further detail and examples. These User Guides do not have the force of law but complying with them may be a mitigating factor in any court actions arising from failure to comply with the Food Standards Code.

In the abovementioned User Guide, FSANZ contrasts the processes used to produce a refined canola oil and a cold-pressed canola oil. The refined oil, as it has gone through a process with the effect of removing the novel DNA, is exempt from the labelling requirements. As a cold-press process may not have the effect of removing the novel DNA, the oil would have to be tested. The User Guide provides the following guidance:

  • If novel DNA and/or novel protein found to be present routinely, label canola oil as 'genetically modified’.
  • If no novel DNA and/or novel protein found routinely, no 'genetically modified' label is required.

The use of the word ‘routinely’ suggests that even if some novel DNA were present, as long as it was not routine, the oil would be exempt from the labelling requirements.

Furthermore, the wording of the Standard suggests that so long as the product has undergone a process with ‘the effect of’ removing the novel DNA it is exempt. There is not mention as to how successful that process must be. The User Guide lends further weight to this interpretation as the canola examples show. After going through the refining process, the refined oil is not recommended to be tested whereas the cold-press oil is.

The result is that many products are consumed in Australia that are not labelled GM may contain novel DNA. What is certain is that many products that are derived from GM food are similarly exempt from labelling. For example, Single Vision Grains Australia, a grain industry initiative made up of many major stakeholders, noted in their report Delivering market choice with GM canola that in 2006 Australia massively increased its import of Canadian GM canola due to the drought. This canola was processed in the Australian supply chain leading to Australian food products. This means that a significant amount of canola oil processed in Australia in 2006 was derived from GM sources and not required to be labelled as such.

The carve-out for “unintentionally present” GMOs

In Standard 1.5.2 of the Food Standards Code, section 4 (1)(f) excludes from the definition of “genetically modified food” (and from the labelling requirements in the Standard):

a food, ingredient, or processing aid in which genetically modified food is unintentionally present in a quantity of no more than 10g/kg per ingredient [1%].

This carve-out protects food producers in the event of a contamination somewhere along the supply chain, from seed distribution to food processing. So long as the contamination is kept within what is known as the tolerance threshold of 1% in any single ingredient in the food, then the final food product can still avoid the mandatory ‘GM’ labelling requirements in Standard 1.5.2.

This ‘unintentionally present’ amount of GMO in any given food product is known in the industry as an adventitious presence. It is difficult to ascertain what obligations the word ‘unintentional’ places on food producers. Legally, the word suggests that a 0.9% threshold applies so long as no one intentionally adds GMOs to a food product. This would then mean that any person who is reckless (i.e. does not care whether the GMOs are in the product or not) may still be allowed to avoid the labelling requirements. The wording of this carve-out does not appear to place a stringent requirement on food producers. If tightened, the Standard could result in more testing of food products and more consumer awareness as to levels of GM foods in their diet.

This is general information rather than legal advice and is current as of 3 Jul 2008. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.