Current developments in food law and policy in Australia and overseas
Published: 6 May 2019
Current developments in food law and policy in Australia and overseas
By Joe Lederman (FoodLegal Co-Principal) and John Thisgaard (FoodLegal Senior Associate)
© Lawmedia Pty Ltd, May 2019
Food Standards Australia New Zealand (FSANZ) news
1. FSANZ issues Maximum Residue Limit harmonisation request
From 16 April 2019, FSANZ has invited stakeholders to lodge requests to harmonise Australia’s Maximum Residue Limits (MRLs) with international standards.
A request should comply with guidance material issued by FSANZ. For example, a request for harmonisation must must identify a standard established either by the Codex Alimentarius Commission or nationally by a regulatory authority in a recognised jurisdiction.
Requests are due by 2 June 2019.
2. FSANZ calls for submissions on Application A1160 – Aspergillopopsin I from Trichoderma reesi as a processing aid
On 5 April 2019 FSANZ issued a call for written submissions with respect to Application A1160 by DuPont Australia Pty Ltd to permit the enzyme Aspergillopepsin I as a processing aid for the production of potable alcohol products and protein processing.
Submissions were due by 17 April 2019.
3. FSANZ calls for submissions on Application A1170 – Rebaudioside MD as a Steviol Glycoside
On 2 April 2019 FSANZ issued a call for written submissions with respect to Application A1170 by Cargill Incorporated USA to seek approval for a steviol glycoside mixture (Reb MD) for use as an intense sweetener, produced from a genetically modified Saccharomyces cerevisiae.
FSANZ CEO Mark Booth said “The applicant is seeking approval to include a new specification for Reb MD produced from microbial fermentation, rather than from the plant. FSANZ's risk assessment found no health and safety concerns with this new production method.”
Submissions were due by 10 May 2019.
Australian Competition and Consumer Commission (ACCC) news
4. ACCC proposes to revoke dairy pricing proposal
The ACCC announced on 1 May 2019 that it proposes to revoke a resale price maintenance notification lodged by Meredith Dairy.
The earlier notification would have prevented retailers from selling Meredith Dairy products below a specified price. However, the ACCC has taken the view that the notification would create competition concerns and would not result in a net public benefit. ACCC Commissioner Roger Featherston said the ACCC did not want the resale price maintenance notification to stand for the following reasons: “The proposed minimum retail prices would mean retailers who are currently offering cheeses at lower prices to consumers could no longer do so. It would also reduce the competitive pressure on other retailers to offer lower prices, including major supermarket chains.”
Interested parties have until 29 May 2019 to make submissions in relation to the ACCC’s proposal.
5. ACCC accepts variation to Coles fuel discount undertaking
On 16 April 2019 the ACCC announced that it had accepted a variation to an undertaking by major retailer Coles with respect to its shopper docket fuel discount offers.
The undertaking was first provided in 2013 and required Coles to fund fuel discounts only through the fuel retailer Coles Express. Under the variation, Coles will be able to fund shopper docket discounts from outside of Coles Express, as Coles Express has signified it will be no longer operating as a fuel retailer.
6. ACCC issues proceedings against alleged unfair contract terms
The ACCC announced on 18 April 2019 that it had initiated proceedings in the Australian Federal Court against Smart Corporation Pty Ltd trading as Australian 4WD Hire.
The ACCC alleges that Australian 4WD Hire included unfair terms in its standard form rental contracts, in breach of the Australian Consumer Law. The terms permitted Australian 4WD Hire to charge for excessive wear and tear or damage where the vehicle was driven at night outside built-up areas, above the speed limit, or when visibility was poor. The ACCC alleged that these terms allowed the company to charge for purported damage without having to prove any actual damage occurred.
Although this case does not directly concern a food company, it demonstrates an area of potential enforcement action against companies that include unfair contract terms in their dealings with smaller companies or individuals.
Other Australian food regulatory issues
7. Substantial increases in Australian biosecurity penalties
Amendments that have the effect of substantially increasing penalties for breaching Australia’s biosecurity laws came into effect on 17 April 2019.
The increased penalties were implemented as amendments to the Biosecurity Act 2015 and Migration Act 1958. Australian citizens who breach the Biosecurity Act by bringing in undeclared hazardous goods into Australia now face a fine of up to $63,000 and imprisonment of up to five years. Foreign citizens who bring undeclared hazardous goods to Australia may have their visas cancelled and be unable to apply for a new visa for up to three years.
People proposing to vising Australia ought to be made aware of Australia’s very strict biosecurity regulations as well as the high penalties for any breach or non-compliance.
8. Bega wins trade mark case against Kraft
On 1 May 2019 the Australian Federal Court ruled in favour of Australian brand Bega in a long-running trade mark dispute with Kraft.
The dispute concerned the usage by Bega of a yellow lid and red and blue labels on its peanut butter. That part of Kraft’s business that included peanut butter had previously been purchased by Bega. Kraft claimed that it was misleading and deceptive for Bega to continue using the “get-up” (or livery) that Kraft had used on the peanut butter products. The Court found that as a result of the purchase, and notwithstanding the goodwill previously generated by Kraft in using the branding, Bega’s purchase meant that it was also exclusively entitled to use those get-up aspects of the branding.
9. Australian Federal Government to extend usage opportunity for “Made in Australia” claim for complementary medicines
On 5 April 2019, the federal Department of Industry Innovation and Science announced its intention to introduce additional permissions for complementary medicines wishing to claim that they have been Made in Australia.
Under the changes, complementary medicines manufactured in Australia in facilities regulated by the Therapeutic Goods Authority would be able to claim that they have been Made in Australia irrespective of the level of processing that occurred in Australia. This is despite the fact that under Australia’s Country of Origin laws that apply for foods, all products must undergo “substantial transformation” in Australia, being defined in the Australian Consumer Law as a fundamental change in essential nature, identity or essential character, in order to claim that they have been Made in Australia.
The announcement appears to be a government policy response to a December 2018 Australian Federal Court decision that found that the encapsulation of fish oil by itself did not amount to substantial transformation. As such, the Court decision meant the product was not a product “Made in Australia”.
The government has not provided a date as to when these changes are expected to be implemented.
10. Australia Federal Government decides not to regulate SDN-1 gene editing
In a 10 April 2019 announcement, the federal government declared that it would not regulate site-directed nuclease (SDN-1) gene editing technology.
The decision was based on the fact that SDN-1 does not result in the insertion of any new DNA into organises, but instead facilitates alterations to DNA that could theoretically occur naturally or during mutation breeding, which is currently unregulated.
The SDN-1 technique is used in technologies such as clustered regularly interspaced short palindromic repeats (CRISPR), which is believed to have significant applications to the agriculture industry. In particular, CRISPR is believed to be a more efficient way of genome editing that eliminates the need to spend time mutating many instances of various crops.
11. Australian Federal Government announces IP directory for exported wine
On 24 April 2019 the federal Department of Agriculture and Water Resources announced that it would be implementing a Wine Label Intellectual Property Directory (Wine Directory).
The proposed Wine Directory is designed to curb intellectual property infringement in the wine export industry, and would house images of product labels of all wine products exported from Australia. The Wine Directory would be publicly available and all prospective wine exporters would have to submit images of their products prior to obtaining export certification.
12. Egg farmer receives five-year ban for animal cruelty
It was reported in April 2019 that a New South Wales commercial egg farmer had received a $6,500 fine and a five year ban on owning animals following an animal cruelty conviction.
The Picton Local Court in New South Wales heard that half the hens on the property were suffering a respiratory disease and that 4,000 hens were declared to be a biosecurity risk and were euthanised.
Thirteen protestors who entered the property with cages and attempted to remove the pens have also been charged with trespass and theft offences.
International food regulatory issues
Food scientific developments
13. Queensland company invents method to keep milk fresh for 60 days
A Queensland food technology company has patented a technology that it claims will keep natural milk fresh in the fridge for 60 days.
The process is reported to differ from traditional pasteurisation as it does not rely on heat to the same extent. It is also different to long life milk that is the result of the UHT process. The invention is said to enhance export opportunities for Australian milk.
14. New fast screening method developed for detecting coeliac disease
The Wesley Medical Research Institute in Queensland has developed a quick diagnostic screening test for coeliac disease.
The test can analyse a droplet of blood within 10 minutes to indicate whether the subject requires further testing to confirm the presence of coeliac disease. It can currently take a number of years to diagnose a case of coeliac disease once a person first presents symptoms. The test is undergoing further research and validation.
15. New invention to test for pesticide residues in real time
An Israeli company has developed a portable device capable of testing pesticide residues in food in real time.
The device can be calibrated to detect specific kinds of chemical contamination in real time upon receiving a sample of the food. The device is currently undergoing pilot testing with food companies in the EU and US. The company aims to ultimately develop a consumer-level hand-held device.
16. Scientists discover link between diabetes and bread preservative Propionate
A team of US and Israeli scientists has found a link between propionate, a common food additive, and diabetes.
Upon administering propionate to mice, the scientists recorded a hormonal surge that caused the mice to gain weight and develop a resistance to insulin. Researches then conducted a study on humans, observing higher levels of glucagon in people who had ingested propionate. Glucagon works to increase the concentration of glucose in the bloodstream.
17. Manuka honey producer pleads guilty to adding artificial chemicals
On 18 April 2019 it was reported that a New Zealand company pleaded guilty at the North Shore District Court in Auckland to the offence of adding artificial chemicals to its manuka honey product.
New Zealand Food Safety alleged that the company introduced the chemicals to increase the levels of anti-bacterial agents which give manuka honey its premium quality. The guilty plea came during legal proceedings brought by New Zealand Food Safety. In 2016, the New Zealand Ministry of Primary Industries (MPI) initiated a withdrawal of the products in question on the basis that they might contain “non-approved substances”.
18. New Zealand Food Safety amends updated shelf life requirements for eggs
On 10 April 2019 the New Zealand Food Safety amended shelf life requirements for clean, un-cracked eggs.
According to New Zealand Food Safety, the shelf life for such eggs is now 35 days at room temperature. This amendment was made based on new scientific evidence. The shelf life for other eggs remains the same.
The MPI has issued an amended version of its guidance document “Understanding the Labelling Requirements for Eggs and Egg Products” to reflect this change.
19. New Zealand biosecurity agency and citrus industry reach agreement on biosecurity threats
On 3 April 2019 Biosecurity New Zealand and Citrus New Zealand announced that the two bodies had entered into a Sector Operational Agreement for Readiness and Response (Biosecurity Agreement).
The Biosecurity Agreement will remain on foot for 3 years and allows Biosecurity New Zealand and Citrus New Zealand to jointly plan and fund programs to deal with the incursions of pests and pathogens that are considered a concern to the citrus industry.
20. US FDA to remove frozen cherry pie and French dressing standards
In April 2019 it was reported that the US Food and Drug Administration (FDA) formalised plans to remove prescriptive standards of identity for frozen cherry pie and French dressing.
Currently, products sold in the US as frozen cherry pie must contain at least 25 percent cherries by weight. No more than 15 percent of the cherries may be blemished. French dressing must contain at least 35 percent by weight of vegetable oil and no more than 25 percent by weight of citric or malic acid. Similar desserts and dressings are not subject to standards of identity.
The FDA has said that it will make further announcements with respect to when it will revoke these standards of identity.
21. US meat company wins lawsuit over its “natural” labelling
In a 10 April 2019 decision the D.C. Superior Court dismissed a lawsuit against meat producer Hormel with respect to “natural” claims in its advertising.
Hormel sold numerous meat products marketed as “Natural Choice”. The plaintiff, Animal Legal Defense Fund, alleged that these claims misled consumers as they did not meet consumer expectations regarding natural products. Hormel argued that the products met a US Department of Agriculture standard regarding the use of the term “natural” on product packaging. The Court found that where products are permitted by this standard to make natural claims on their packaging, they are also permitted to make such claims on wider advertising.
The US Department of Agriculture standard permits the use of “natural” on product labels where the product contains no artificial ingredients and has been minimally processed.
22. Two US states prohibit use of “meat” by plant-based alternatives
It was reported in April 2019 that the States of Mississippi and South Dakota had passed legislation prohibiting the usage of the descriptor “meat” on behalf of any product that was not derived from a slaughtered animal.
The US State of Montana is reportedly close to finalising a similar law. Missouri, the first US State to pass such a law, is currently engaged in legal proceedings regarding the validity of that law. The plaintiffs in that case argue that the law is unconstitutional as it would criminalise the usage of the word “meat”.
23. European Commission to limit trans fat content for all foods
On 24 April 2019 the European Commission adopted Regulation 1169/2011 to limit the amount of trans fats that may be present in foods sold at retail.
Under the regulation, food that is intended for sale to a final consumer or for supply to retail would be prohibited from containing more than 2 grams of trans fat per 100 grams of fat, other than trans fat that is naturally occurring in fat of animal origin. The regulation defines trans fat as “fatty acids with at least one non-conjugated (namely interrupted by at least one methylene group) carbon-carbon double bond in the trans configuration”.
The regulation is due to take effect on 1 April 2021.
24. EFSA seeks submissions on dietary reference values for sodium and chloride
On 3 April 2019 the European Food Safety Authority (EFSA) issued a call for submissions with respect to its draft dietary reference values for sodium and chloride.
EFSA’s draft dietary reference values for the general adult population (including pregnant and lactating women) are as follows:
· An intake of 2g sodium per day to be safe and adequate, considering evidence on the risk of cardiovascular disease on the one hand and nutrition adequacy on the other;
· An intake of 3.1g chloride per day to be safe and adequate, taking account that the main source of chloride in EU diets is sodium chloride.
Submissions were due before 7 May 2019.
25. EFSA seems submissions on complementary feeding age
EFSA announced on 17 April 2019 that it is seeking submissions from stakeholders with respect to its scientific opinion on the appropriate age for introducing complementary feeding to infants.
EFSA recommends introducing complementary foods to most infants at the age of between 3-4 and 6 months, depending on the infant’s characteristics and development. EFSA also found that there is no evidence that introducing potentially allergenic foods increases the risk of children developing allergies.
Submissions are due by 29 May 2018.
26. UK Food Standards Agency report identifies data enhancing food safety
On 5 April 2019 the UK Food Standards Agency (FSA) issued its Chief Scientific Adviser’s Report.
The report examines how data standards are used to enhance food safety. Specifically, the report outlines the following three principles in developing data standards that have an impact on food safety:
· Adopting recognised standards that are already accepted and maintained;
· Working with others in the food industry to agree to common standards; and
· Ownership in setting, managing and maintaining unambiguous standards.
27. Chinese food regulator proposes authorisation of four food additives
On 9 April 2019 the Chinese National Centre for Food Safety Risk Assessment (CFSA) announced that it proposes to permit the use of four food additives in food sold in China.
The proposed food additives are as follows:
2. Disodium EDTA
3. Caramel I
4. e-poly-L-lysine HCI
Additives 2-4 above are already permitted in China for some applications; however, the current proposal seeks to widen this permission to other types of product. Additive 1 is entirely new to China and would permit the sale of numerous imported energy drinks in which it is used as an additive.
28. Canada proposes warning labels for ‘junk food’
It was reported in March 2019 that Health Canada is considering implementing warning markers for so-called junk food products.
The labels, which are yet to be finalised, would apply to products that exceed a certain nutritional threshold – for example, products that are high in fat, sugars or sodium. It was reported in online media that the scheme may be challenged by the US under the North Atlantic Free Trade Agreement.
This is general information rather than legal advice and is current as of 6 May 2019. 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.