Current developments in food law and policy in Australia and overseas (June 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, June 2019

Food Standards Australia New Zealand (FSANZ) news

1.    FSANZ to review Australian food safety management standards

On 3 May 2019 FSANZ announced that it is reviewing Chapters 3 and 4 of the Australia New Zealand Food Standards Code (Food Standards Code), which contain food safety management requirements for Australian food businesses.

FSANZ CEO Mark Booth said “The review will focus on:

·         the requirements for food safety management in the food service sector and closely related retail sectors, and

·         potential development of a primary production and processing standard for high-risk horticulture products to introduce requirements to manage food safety on-farm, including requirements for traceability.

“In addition, FSANZ will consider new technologies that have developed since the original standards were developed.”

FSANZ has called for submissions from industry as part of its review. Submissions were due by 14 June 2019.

We address the scope of this review and potential outcomes in this June 2019 edition of FoodLegal Bulletin.


2.    FSANZ accepts Application A1180 – Natural Glycolipids as a preservative in non-alcoholic beverages

FSANZ announced on 13 June 2019 that it had accepted Application A1180 by LANXESS Deutschland GmbH to permit the use of long-chain glycolipids from Dacryopinax spathularia (Natural Glycolipids) as a preservative in non-alcoholic beverages.

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


3.    FSANZ calls for submissions on Application A1163 – Food irradiation definition of herbs and spices

On 6 June 2019 FSANZ issued a call for written submissions with respect to Application A1163 by Sapro Australia Pty Ltd to vary Standard 1.5.3 to remove the reference to Schedule 22 in relation to the definition of Herbs and Spices.

FSANZ Acting CEO Dr Scott Crerar said “The applicant is seeking to replace the current definition of herbs and spices to either a commonly understood meaning of herbs and spices or by including generic definitions of 'herbs' and 'spices' in the Code. These changes would be consistent with the original intent of the permission to irradiate herbs and spices, provided in 2001".

Submissions are due by 18 July 2019.


4.    FSANZ calls for submissions on Application A1164 – Pullulanase from Bacillus licheniformis as a processing aid

FSANZ announced on 6 June 2019 that it is seeking submissions from industry in relation to Application A1164 by DuPont Australia to seek approval for the use of Pullulanase from a recombinant strain of Bacillus licheniformis as a processing aid in food.

FSANZ Acting CEO Dr Scott Crerar said “Pullulanase is already a permitted enzyme, and B. licheniformis has a history of safe use in the production of enzyme processing aids. This application would provide food processors with an alternative source of pullulanase".

Submissions were due by 18 July 2019.


5.    FSANZ publishes Amendment 185 to the Food Standards Code

On 6 June 2019 FSANZ published Amendment number 185 to the Food Standards Code, incorporating amendments arising from the following Applications and Proposals:

·         A1149 – Addition of Steviol Glycosides in Fruit Drinks

·         A1162 – Triacylglycerol lipase preparation from Trichoderma reesei as a processing aid (Enzyme)

·         A1165 – Lysophospholipase from Trichoderma reesei as a processing aid (Enzyme)

·         A1167 – Lactase from Bacillus subtilis as a processing aid (Enzyme)


6.    FSANZ Accepts Application A1178 – Method AOAC 2017.16 as a new method of analysis for total dietary fibre

FSANZ announced on 30 May 2019 that it had accepted Application A1178 by the Grain and Legumes Nutrition Council for the addition of a new total dietary fibre method, AOAC 2017.16, as a permitted method in Schedule 11 of the Food Standards Code.

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


7.    FSANZ calls for submissions on Application A1166 – Reduction in minimum alcohol for tequila

On 7 May 2019 FSANZ issued a call for written submissions with respect to Application A1160 by Spirits New Zealand Inc to lower the minimum alcohol percentage by volume for spirits using the Tequila geographical indication.

FSANZ CEO Mark Booth said “Currently the Code requires all spirits to have a minimum content of 37 per cent. Therefore, some products legally entitled to use the Tequila GI are excluded from the New Zealand and Australian markets."

Submissions were due by 18 June 2019.


8.    FSANZ accepts Application A1176 – Enzymatic production of steviol glycosides

FSANZ announced on 16 May 2019 that it had accepted Application A1176 by PureCircle Limited to seek approval for a new specification for steviol glycosides produced by an enzymatic bioconversion method using enzymes derived from genetically modified strains of Escherichia coli.

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


9.    FSANZ calls for submissions on Application A1173 – Minimum protein in follow-on formula

On 16 May 2019 FSANZ issued a call for written submissions with respect to Application A1160 by Nestle Nutrition Oceania to vary the minimum protein requirement in follow-on formula.

Submissions were due by 13 June 2019.


10.  FSANZ approves amendments to Food Standards Code

FSANZ announced on 16 May 2019 that it had approved amendments to the Australia New Zealand Food Standards Code (Food Standards Code) arising from the following Applications and Proposal:

·         Application A1102 - L-carnitine in Food

·         Application A1168 - Glucoamylase from GM Aspergillus niger as a processing aid (Enzyme)

·         Proposal M1016 - Maximum Residue Limits (2018)

FSANZ has notified its approval to the Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum). The Food Forum has until 15 July 2018 to either request FSANZ to review its approval or inform FSANZ that it does not wish to request a review.


Australian Competition and Consumer Commission (ACCC) news

11.  ACCC rejects price maintenance proposal

On 14 June 2019 the ACCC announced that it had rejected a notification by Meredith Dairy that would allow it to set a minimum price at which its products could be sold by retailers.

ACCC Deputy Chair Mick Keogh said “In our view, the proposed conduct would have led to consumers paying higher prices for Meredith Dairy’s goat cheeses, and would have limited the ability of delicatessens and other small retailers to compete with big chains”. The ACCC previously issued an objection with respect to the notification on 1 May 2019.

We discuss the issue of price maintenance in this June-July 2019 edition of FoodLegal Bulletin.


12.  ACCC seeks feedback on plan to allow collective bargaining for small businesses

The ACCC announced on 6 June 2019 that it is seeking feedback on its proposal that would allow small businesses to collectively negotiate with suppliers and processors, and franchisees to collectively negotiate with franchisors.

Currently, groups of competitors looking to collectively bargain with another party must obtain formal approval from the ACCC. The ACCC proposes to implement a “class exemption” that would apply to “businesses and independent contractors which form, or are members of, a bargaining group, and each had an aggregated turnover of less than $10 million in the financial year before the bargaining group was formed.” The ACCC further proposes to implement a class exemption for all franchisees governed by the Franchising Code of Conduct, regardless of turnover.

Submissions are due by 3 July 2019.


13.  ACCC publishes interim wine grape market study

On 3 June 2019 the ACCC released an interim report into the wine grape industry, outlining measures to improve competition.

The report identifies a number of supply arrangements that favour large winemakers, including a lack of transparency with respect to how grapes are priced and assessed for quality, as well as reliance on long-term contracts that do not offer price security to growers.

The ACCC recommends the imposition of 30 day payment terms in grape growing agreements, standardised testing for wine grape quality, and a requirement for winemakers in warm climates to provide publicly available indicative and final grape prices.

The ACCC is seeking feedback on the report by 28 June 2019.


Other Australian food regulatory issues

14.  Chocolate manufacturer issued cease and desist over advertisement

It was reported in June 2019 that Australian chocolate manufacturer Darrell Lea had received a cease and desist letter from Sensis in relation to its television advertisement.

The advertisement in question was a tongue-in-cheek reference to a 2000 advertisement first used by Sensis featuring the catchphrase “Not happy Jan”. The Darrell Lea advertisement uses the same actress and setting as the Sensis advertisement, with a twist on the catchphrase as “No worries Jan”.

Following receipt of the letter, Darrell Lea stopped showing the advertisement.


15.  Department of Agriculture approves bulk wheat imports for first time since 2007

On 14 May 2019 the federal Department of Agriculture and Water Resources issued a permit to import bulk wheat from Canada.

The import permit marks the first time that bulk grain has been imported to Australia since 2007. Australia’s winter crop production is currently down by 20 percent on previous years, owing to a drought during 2018 and 2019. The Department of Agriculture has said that it is considering a further eight applications for import permits for bulk grains.


16.  ACCC investigating WA free range egg industry

It was reported in May 2019 that the ACCC is investigating practices in the WA free range egg industry, following concerns raised by the WA Minister for Agriculture and Food.

The investigation follows concerns that non-free range eggs are arriving in WA from other Australian States and are being sold as free range at a lower price than other free range eggs. In 2018, the Australian Consumer Law (Free Range Egg Labelling) Information Standard came into effect which sets out requirements for eggs sold as free range.

The ACCC has not made any official announcement with respect to the investigation and has not yet provided a timeline as to next steps.


17.  Queensland government introduces fines for farm trespassers

On 26 April 2019 new fines came into effect in Queensland that apply to persons who trespass on farming and animal processing properties.

A fine of $652.75 now applies in relation to unauthorised entry to places where animals are kept. The fine was introduced following a number of incidents of animal activists entering such properties without permission, and reflect the biosecurity risks posed by the entrance of unauthorised persons.


International food regulatory issues

18.  Amendment of Basel Convention to limit transfer of plastic waste between countries

On 10 May 2019 signatories to the international Basel Convention (including Australia) resolved to amend the Convention to place additional limits on the international transfer of plastic waste.

The Basel Convention is intended to promote the responsible disposal of waste, and to curtail the transfer of “hazardous waste” across borders by requiring prior informed consent from the country accepting the waste. Prior to this amendment, “hazardous waste” did not include plastic waste. The Basel Convention now requires prior informed consent to be provided from any country prior to receiving contaminated, mixed or unrecyclable plastic waste.


New Zealand

19.  MPI seeks proposals for research to tackle M. bovis

On 21 May 2019 the New Zealand Ministry for Primary Industries (MPI) announced that it is seeking proposals with respect to the research outlined in its M. bovis Science Plan.

The Science Plan seeks to eradicate M. bovis from New Zealand. The MPI is accepting proposals for diagnostics research that will contribute towards achieving this objective. MPI Chief Science Adviser Dr John Roche said "The focus is on diagnostic tools that will contribute towards national surveillance testing and on enhancing diagnostic test performance at the herd level. We’re also interested in tools we can use on germplasm.”

Proposals were due by 19 June 2019.


United States

20.  FDA supports voluntary “Best if used by” labelling

The FDA announced in a 23 May 2019 letter that it supports the use of a “Best if used by” statement on behalf of products that include date labels.

The use of such a phrase is voluntary under US law. As a result, usage of different variations of non-standardised “best before” statements has created consumer confusion. A number of different US food companies have rallied behind “Best if used by” in an attempt to create a standard wording.


21.  Cereal manufacturer sued for misrepresenting cocoa

A lawsuit filed on 26 April 2019 against Post Consumer Brands (Post) alleges that Post has falsely advertised the nature of the cocoa in its cereals.

The products in question claim that they contain “real cocoa”. However, the lawsuit alleges that the cocoa in the cereals has been alkalised to enrich its appearance and that this process has a negative impact on taste. The lawsuit further alleges that calling the cocoa “real cocoa” therefore creates a false impression.

A hearing is scheduled for September 2019.


22.  Court prevents beer manufacturer from making claims about corn syrup

In a 24 May 2019 decision, the Wisconsin Federal Court issued an order preventing brewer AB InBev from making claims about the use of corn syrup by its competitor MillerCoors.

The order relates to advertisements made by AB InBev calling attention to MillerCoors’ use of corn syrup. MillerCoors uses corn syrup to aid fermentation, but no corn syrup remains in the final product. The Court found that “consumers would interpret advertising statements about ‘made with corn syrup’ or ‘brewed with corn syrup’ as corn syrup actually being in the final products”.


United Kingdom

23.  National Audit Office releases report into food safety

On 12 June 2019 the UK National Audit Office published its report on the effectiveness of food safety regulations in the UK.

The National Audit Office is an independent body that scrutinises public spending in the UK. The report found that a number of elements of the UK food regulatory system are outdated and overly complex. The report also raised concerns with respect to the ability of the current regulatory system to achieve value for money in response to potential new trading scenarios following the UK’s exit from the EU.


24.  UK FSA recommends full ingredient labelling to improve allergen information

On 8 May 2019 the UK Food Standards Agency (FSA) announced its support for mandatory full ingredient labelling for pre-packed food for direct sale.

Pre-packed foods for direct sale include those that have been packed on the same premises from which they are sold. Such foods are currently not required to include allergen or ingredient information on their labels. The FSA has announced that such products should be subject to a requirement to label all ingredients, including potential allergens. The FSA believes that this will bring the requirements for direct sale products into line with other packaged foods and will increase labelling consistency for allergic consumers.

The recommendation by the FSA must be implemented by UK Ministers.


25.  Meat plant fined for obstructing food inspections

The UK FSA announced on 14 May 2019 that a London meat cutting plant had been fined £9,000 for preventing FSA inspectors from entering its site.

The inspectors were attending the site to undertake an inspection. The business owner told the Thames Magistrates Court that he felt harassed by the inspections. The Court ultimately found the business guilty of two offences of obstructing FSWA inspectors from entering the premises.


European Union

26.  EFSA to review pesticide guidance

On 8 May 2019 the European Food Safety Authority (EFSA) announced that it is establishing a stakeholder consultative group to support its review of guidance on risk assessment of pesticides and bees.

The EFSA guidance was first published in 2013 and provides principles to consider when determining the impact of pesticides on bees. The review was requested by the European Commission and will focus on bee background mortality, the list of bee-attractive crops, exposure routes and the methodology with respect to higher tier testing.

The guidance is expected to be finalised in 2021.


27.  Dutch advertising watchdog finds artificial vanilla to be misleading

In a 16 May 2019 decision, the Dutch Advertising Code Committee found that the labelling of a vanilla custard product that used artificial vanilla flavours was misleading.

The product in question was called “Optimel Vanille Vla” and stated “Soft vanilla flavour” on the side of the pack. According to the Advertising Code Committee, this gave the impression that the product actually contained vanilla, which was not the case. The fact that the ingredients list on back of pack did not refer to any natural vanilla was not enough to correct this impression.


28.  Ireland launches horsemeat supply chain investigation

It was reported in June 2019 that Ireland’s Garda Síochána has launched an investigation into potential contamination of the horsemeat supply chain.

As part of the investigation, seven farms, houses and commercial premises were raided. The investigation concerns alleged fraudulent practises undertaken with respect to horses presented for slaughter. These practices include tampering horse identification passports and microchips. Ireland exports large quantities of horsemeat to other countries.

This is general information rather than legal advice and is current as of 18 Jun 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.