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

Food Standards Australia New Zealand (FSANZ) news

1.    FSANZ issues Proposals to amend Chapter 3 of the Food Standards Code

FSANZ announced on 1 August 2019 that it had initiated the following two Proposals:

·         P1052 - Primary Production and Processing Requirements for High-risk Horticulture: to consider food safety requirements to address food safety for high-risk horticulture products.

·         P1053 - Food Safety Management tools: to consider food safety management requirements for the food service and retail sector.

The Proposals are related to a review by FSANZ of Chapter 3 of the Australia New Zealand Food Standards Code (Food Standards Code).

FSANZ will provide an opportunity to comment on each of these Proposals at a later date.


2.    FSANZ accepts Application A1182 – Glucose Oxidase from Trichoderma reesei as a processing aid

On 30 July 2019 FSANZ announced that it had accepted Application A1182 by AB Enzymes GmbH to approve a Glucose Oxidase enzyme preparation from from Trichoderma reesei for use as a processing aid in cereal based products (baking) and egg processing.

FSANZ will provide an opportunity to comment on this Application at a later date.


3.    FSANZ publishes Amendment no. 186

FSANZ announced on 25 July 2019 that it had published Amendment No. 186 to the Food Standards Code incorporating changes arising from the following Applications and Proposal:

·         A1102 - L-carnitine in Food

·         A1168 - Glucoamylase from GM Aspergillus niger as a PA (Enzyme)

·         M1016 - Maximum Residue Limits (2018)


4.    FSANZ calls for submissions on Application A1155 – 2’-FL and LNnT in infant formula and other products

On 22 July 2019 FSANZ issued a call for submissions with respect to Application A1155 by Glycom A/S to permit the voluntary use of 2'-O-fucosyllactose (2'-FL) alone or in combination with Lacto-N-neotetraose (LNnT) in infant formula products and formulated supplementary foods for young children.

FSANZ CEO Mark Booth said “FSANZ's safety and technical assessment found no public health and safety concerns associated with the addition of these oligosaccharides at the proposed maximum levels, which are within the range of levels found in human milk. We have considered comments received on the first call for submissions (November 2018) and after further targeted consultation have prepared a draft variation to permit the voluntary addition of these oligosaccharides to infant formula products and FSFYC”.

Submissions are due by 2 September 2019.


5.    FSANZ publishes 25th Australian Total Diet Study

On 30 June 2019 FSANZ released the results of the 25th Australian Total Diet Study.

The study tested 88 foods for the presence of 226 agricultural and veterinary chemicals and the metals arsenic, cadmium, lead and mercury. FSANZ used the results to estimate dietary exposure for the Australian population and concluded that the food supply for the general population is safe.

The study did identify that exposures to the organophosphorus insecticide prothiofos exceeded the ADI for mean consumers aged 2 to 5 and 6 to 12 years, which has led to voluntary industry action in this area.


6.    FSANZ approves amendments to Food Standards Code

FSANZ announced on 27 June 2019 that it had approved amendments Food Standards Code arising from the following Applications:

·         A1159 – Triacylglycerol lipase from Trichoderma reesei as a processing aid (enzyme)

·         A1160 – Aspergillopepsin I from Trichoderma reesei as processing aid (enzyme)

·         A1170 – Rebaudioside MD as a Steviol Glycoside from Saccharomyces cerevisiae

·         A1172 – Enzymatic production of Rebaudioside D

FSANZ has notified the Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum). The Food Forum has until 26 August 2019 to either request FSANZ to review its approval or to inform FSANZ that it does not intend to request a review.


7.    FSANZ accepts Application A1182 – Glucose Oxidase from Trichoderma reesei as a processing aid

On 27 July 2019 FSANZ announced that it had accepted Application A1182 by AB Enzymes GmbH to approve a Glucose Oxidase enzyme preparation from from Trichoderma reesei for use as a processing aid in cereal based products (baking) and egg processing.

FSANZ will provide an opportunity to comment on this Application at a later date.


8.    FSANZ announces Proposal P1010 – Review of Formulated Supplementary Sports Foods

FSANZ announced on 27 June 2019 that it had initiated Proposal P1010 to review Standard 2.9.4 – Formulated Supplementary Sports Foods (FSSF) of the Australia New Zealand Food Standards Code.

This Proposal is considered in detail in the August 2019 edition of FoodLegal Bulletin.


9.    FSANZ accepts Application A1181 – Maximum residue limits for lmazapyr in Barley Grain

On 20 June 2019 FSANZ announced that it had accepted Application A1181 by BASF Australia to increase the maximum residue limit for imazapyr in barley grain from 0.05ppm to 0.7ppm.

FSANZ will provide an opportunity to comment on this Application at a later date.


10.  FSANZ calls for submissions on Application A1169 - Alpha-glucosidase from Trichoderma reesei as a processing aid

In a 20 June 2019 announcement, FSANZ called for submission from industry with respect to Application A1169 by DuPont Australia Pty Ltd to permit the use of Alpha-glucosidase enzyme from A Recombinant Strain of Trichoderma reesei as a processing aid.

FSANZ CEO Mark Booth said “The applicant is seeking permission to use the enzyme to produce biochemicals, such as monosodium glutamate, organic acids, potable alcohol, isomalto-oligosaccharides and other sweeteners and lysine. FSANZ has undertaken a thorough safety assessment and concluded there are no public health safety issues related to the use of the enzyme.”

Submissions were due by 30 July 2019.


Australian Competition and Consumer Commission (ACCC) news

11.  Federal Court fines potato wholesaler for breach of Horticulture Code

The ACCC announced on 2 August 2019 that the Australian Federal Court had issued a penalty of $240,000 against potato wholesaler Mitolo Group Pty Ltd for breaches of the Horticulture Code of Conduct (Horticulture Code).

The Federal Court found that 19 contracts with potato growers breached the Horticulture Code as they did not specify the time in which the price was to be agreed with growers in writing.

The Federal Court also found that several of Mitolo’s contract terms were unfair and therefore void. These included clauses that allowed Mitolo to unilaterally determine or vary the price Mitolo paid farmers for potatoes, unilaterally vary other contractual terms, declare potatoes as “wastage” without a mechanism for proper review, and prevent farmers from selling potatoes to alternative purchasers.


12.  ACCC highlights market imbalance in grape wine industry

On 22 July 2019 the ACCC provided an update on its market study into the grape wine industry, indicating a low level of competition between winemakers buying grapes.

The ACCC specifically highlighted imbalances in bargaining power between a few major buyers and many small sellers, as well as a lack of transparency in pricing. ACCC Deputy Chair Mick Keogh said, “The imbalance in bargaining power results in growers accepting contracts with sub-optimal terms, with limited ability to resolve disputes, and having to wait sometimes up to nine months for payment for their grapes”.

The ACCC released an interim report into its study on 3 June 2019. Submissions on the interim report closed on 28 July 2019.


13.  Uber Eats amends its contracts following ACCC concerns

The ACCC announced on 17 July 2019 that Uber Eats would change its contracts with restaurants following an ACCC investigation.

According to the ACCC, the investigation found that Uber Eats’ contracts with restaurants allowed Uber Eats to require restaurants to refund customers at Uber Eats’ discretion, even where the refund may not be due to any fault of the restaurant. ACCC Chair Rod Sims said “We consider these terms to be unfair because they appear to cause a significant imbalance between restaurants and Uber Eats; the terms were not reasonably necessary to protect Uber Eats and could cause detriment to restaurants.”

Uber Eats will amend their terms to clarify that restaurants will only be responsible for matters within their control, and to give restaurants the ability to dispute any refunds. Uber Eats also agreed to remove a term providing that Uber Eats does not provide logistics services following ACCC concerns that this term was misleading.


14.  ACCC case against Woolworths “biodegradable” claims dismissed

On 5 July 2019, the Federal Court of Australia dismissed proceedings brought by the ACCC against Woolworths.

The ACCC had alleged that Woolworths’ claims that its “Select eco” range of disposable plates, bowls and cutlery were “biodegradable and compostable” were misleading and deceptive. The Court found that these claims had been sufficiently substantiated. The ACCC announced on 5 August 2019 that they intend to appeal this decision.

This case is considered in greater detail in the August 2019 edition of FoodLegal Bulletin.


15.  Fruit seller amends contracts with growers

On 25 June 2019 the ACCC announced that Red Rich Fruits had agreed to amend its horticulture produce agreements with growers after the ACCC raised concerns with a particular term in the agreements.

The contracts contained a term requiring growers to provide a credit covering the retail price for fruit that was on-sold by Red Rich Fruits but rejected by a third party. The ACCC claimed that this term was an unfair contract term in breach of the Australian Consumer Law. The ACCC also raised concerns with pricing and payment clauses that potentially breached the Horticulture Code of Conduct.


Other Australian food regulatory issues

16.  Australian Government requests review of concentrated caffeine products

On 10 July 2019 the Australian Federal Minister for Health and Minister for Youth and Sport requested that FSANZ provide formal advice on the safety of concentrated caffeine products.

The request was made in response to the death of an Australian man who consumed a protein shake containing pure caffeine powder. This has led to calls for greater regulation of concentrated caffeine in Australia. Currently, such products face regulation as either foods or therapeutic goods when imported in commercial quantities, but may be imported for personal use without restriction.


International food regulatory issues

New Zealand

17.  New Zealand retailer introduces age requirement for energy drinks

On 27 July 2019 New Zealand grocery retailer Countdown (owned by Australian-based Woolworths) announced that it would impose age restrictions on the sale of formulated caffeinated beverages, or energy drinks.

From 1 September 2019, consumers will only be able to purchase energy drinks from Countdown stores if they are at least 16 years of age. Countdown says it is taking this action to avoid health risks associated with children under 16 consuming products with high amounts of caffeine and sugar.


18.  New Zealand honey exporter receives NZD $372,500 fine for falsely describing products as manuka honey

On 28 June 2019 the New Zealand Ministry for Primary Industries (MPI) announced that honey exporter Evergreen Life Ltd had been fined $372,500 for adulterating its honey products and passing them off as manuka honey.

The Auckland District Court heard that synthetic chemicals including methylglyoxal and dihydroxyacetone were added to the honey in an attempt to give it the properties of manuka honey. According to the MPI, Evergreen Life had derived benefits of approximately NZD $700,000 due to being able to sell its products as high value manuka honey. This was the first case of honey adulteration to be prosecuted in New Zealand.


19.  New Zealand MPI releases online food safety tools

On 19 July 2019 the New Zealand MPI launched three online food safety tools designed to make it easier for food businesses to meet their registration and food safety requirements.

The tools consist of the following:

·         Remote Verification, which allows food businesses to receive government verification via Skype rather than requiring an in person inspection

·         My Food Rules, which allows food businesses to find the food laws that apply to them based on their activities

·         My Food Plan, which allows food businesses that must have a custom food control plan because they make high risk foods to base their custom plan off a pre-evaluated food control plan.


United States

20.  FDA issues final guidance on labelling honey and maple syrup

On 18 June 2019 the US Food and Drug Administration (FDA) issued a final guidance document clarifying that honey and maple syrup products would not have to list added sugars in their nutrition facts labels.

The guidance aims to address the uncertainty around whether these products have to include an “added sugars” section with their nutrition information, even though most of these products do not contain any added sugars. The FDA clarified that, while honey and maple syrup do not have to list added sugars, they must include the percent daily value for added sugars. Such products may also voluntarily include information on added sugars.


21.  US States sued over meat labelling laws

On 1 July 2019 plant-based food company Upton’s Naturals initiated legal proceedings against the State of Mississippi in relation to its law prohibiting plant-based products from being labelled as meat.

In its complaint, Upton’s Naturals claims that this law violates its right “to engage in non-misleading speech, so that they may continue to use the labels that are best understood by their customers.” The case comes during settlement talks between plant-based companies and the State of Missouri in relation to a similar Missouri law.

On 22 July 2019 Tofurky, another plant-based food company, initiated proceedings against the State of Arkansas in relation to a similar law. Tofurkey claims that the law violates its first amendment right to free speech and its fourth amendment right to due process.


22.  Coca-Cola succeeds in arbitration against Monster

On 1 July 2019 Coca-Cola Co and Monster Beverage Corp announced that an arbitration tribunal had found in Coca-Cola’s favour following uncertainty regarding the sale of energy drinks by Coca-Cola.

The dispute related to an agreement between the two companies entered into when Coca-Cola took a 16.7% stake in Monster in 2014. The agreement allowed Coca-Cola to sell its own-brand energy while retaining its stake in Monster, but prevented Coca-Cola from distributing any other energy drinks.

In April 2019, Coca-Cola launched "Coca-Cola Energy" and "Coca-Cola Energy No Sugar," and launched arbitration proceedings. The arbitration tribunal found that this did not amount to a breach of the abovementioned contract.


United Kingdom

23.  FSA announces additional allergen labelling requirements

On 25 July 2019 the UK Food Standards Agency (FSA) announced plans to implement additional allergen labelling requirements.

The requirements will apply to pre-packed foods for direct sale, which include foods that have been packed on the same premises from which they are sold. Such products will be required to include full ingredients information on pack. The FSA indicated its support of these laws on 8 May 2019.

The FSA stated that the new laws will come into force by mid-2021.


European Union

24.  EFSA updates advice on phosphates

On 12 June 2019 the European Food Safety Authority (EFSA) issued new advice on intake levels for phosphates.

EFSA re-assessed the safety of phosphates and developed an acceptable daily intake of 40 mg per kg of bodyweight per dat. Upon reviewing dietary exposure, EFSA noted that much of the dietary intake of phosphates could be attributed to the usage of phosphates as food additives, particularly in food supplements. EFSA warned that infants, toddlers and children who consume food supplements may be exceeding the new acceptable daily intake for phosphates.


25.  EFSA issues work plan for reviewing pesticide and bees guidance

On 5 July 2019 EFSA published a work plan outlining how it will review its guidance on the risk assessment of pesticides and bees in the EU.

EFSA is undertaking this review in response to a mandate from the European Commission. EFSA’s existing guidance was published in 2013 and has not been materially updated since then. As part of the review, EFSA plans to seek feedback before drafting its updated guidance and then holding a full public consultation and workshop.

This is general information rather than legal advice and is current as of 22 Aug 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.