Current developments in food law and policy in Australia and overseas (October 2019)

By Joe Lederman (FoodLegal Co-Principal) and John Thisgaard (FoodLegal Senior Associate)

© Lawmedia Pty Ltd, October 2019

Food Standards Australia New Zealand (FSANZ) news

1.    FSANZ calls for submissions on Application A1181 – Maximum residue limits for imazapyr in barley grain

On 9 October 2019 FSANZ issued a call for submissions from industry with respect to Application A1181 by BASF Australia to increase the maximum residue limit for imazapyr in barley grain from 0.05ppm to 0.7ppm.

Submissions are due by 24 October 2019.


2.    FSANZ calls for submissions on P1050 – Pregnancy warning labels on alcoholic beverages

On 4 October 2019 FSANZ issued a call for submissions from industry with respect to Proposal P1050 to consider a mandatory labelling standard for pregnancy warning labels on packaged alcoholic beverages.

FSANZ CEO Mark Booth said “The draft warning label features a pictogram and a statement to alert women to the risks of drinking alcohol during pregnancy as well as to raise awareness in the broader community. The design process involved a review of existing evidence on the design of warning labels, including features that attract consumer attention. We also undertook consumer testing of the warning statement, specifically targeting women of child-bearing age in Australia and New Zealand to provide input."

Submissions are due by 27 October 2019.


3.    FSANZ accepts Application A1189 – White Mineral Oil as a processing aid for dust suppression in grain

FSANZ announced on 4 October 2019 that it had accepted Application A1189 by IMCD Australia Pty Ltd to approve the extension of use of White Mineral Oil as a processing aid for dust suppression in grain.

FSANZ will announce an opportunity for industry to comment at a later date.


4.    FSANZ initiates urgent Proposal P1054 – Pure and highly concentrated caffeine products

On 24 September 2019 FSANZ announced Proposal P1054 to restrict the sale of pure and highly concentrated caffeine products in Australia and New Zealand.

Proposal P1054 was declared as urgent under the Food Standards Australia New Zealand Act on the grounds that it is necessary to protect public health and safety.


5.    FSANZ approves Applications to amend Food Standards Code

FSANZ announced on 30 September 2019 that it had approved the following Applications to amend the Australia New Zealand Food Standards Code (Food Standards Code):

·         A1164 - Pullulanase from Bacillus licheniformis as a PA (Enzyme)

·         A1166 - Reduction in minimum alcohol for tequila

·         A1173 - Minimum protein in follow-on formula

The Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum) has until 29 November 2019 to either request FSANZ to review the approved standard or inform FSANZ that it does not intend to request a review.


6.    FSANZ accepts Application A1188 - Gibberellic Acid as a processing aid

On 24 September 2019 FSANZ announced that it has accepted Application A1188 by Cargill Malt Asia Pacific Pty Ltd to allow Gibberellic Acid to be used as a processing aid for all cereal grain germination and retain the limit of GMP.

FSANZ will announce an opportunity for industry to comment at a later date.


7.    FSANZ calls for submissions on Application A1174 - Xylanase from Trichoderma reesei as a Processing Aid

On 24 September 2019 FSANZ issued a call for submissions from industry with respect to Application A1174 by DuPont Australia Pty Ltd to permit the use of xylanase from a genetically modified strain of Trichoderma reesei as a processing aid in the manufacture of bakery products.

Submissions are due by  5 November 2019.


Australian Competition and Consumer Commission (ACCC) news

8.    ACCC criticises wine grape sector contracts

In a 24 September 2019 announcement the ACCC encouraged winemakers to review their contracts with grape growers, citing the potential for such contracts to include unfair terms in breach of the Australian Consumer Law.

ACCC Depty Chair Mick Keogh said “We remain concerned about harmful market practices we have uncovered during the past 12 months, which stem from the bargaining power imbalance that exists between winemakers and growers. Our final recommendations include measures to address this imbalance between grape growers and large winemakers, as well as ways of boosting price transparency in the market and improving grape quality assessment.”

The ACCC has indicated that it will investigate the prevalence of unfair contract terms in the industry, and has recommended mandatory public post-season reporting by major winemakers.


9.    Full Federal Court upholds breach of Franchising Code

On 23 September 2019 the Australian Full Federal Court upheld a decision by the Federal Court finding that Ultra Tune Australia Pty Ltd had beached parts of the mandatory Franchising Code of Conduct.

The Full Federal Court found that Ultra Tune had failed to ensure that its marketing fund statements contained sufficient detail to provide meaningful information to franchisees about expenditure. However, the Full Federal Court reduced the penalty imposed on Ultra Tune from $2.6 million to $2.014 million, finding that the breach was not deliberate, but instead resulted from “egregious inadvertence” to its obligations.


10.  ACCC does not oppose Saputo cheese deal with Lion

On 26 September 2019 the ACCC announced that it would not oppose the proposed acquisition of Lion Dairy & Drinks’ Tasmanian-based cheese business by Saputo Dairy Australia.

The ACCC found that the acquisition would not substantially lessen competition, as other competitors including Fonterra will remain in the industry. ACCC Deputy Chair Mick Keogh said “Some farmers told us that Lion has been offering competitive contract terms and they were concerned these would be lost after the proposed acquisition. However, most farmers were not concerned about the transaction, and told us the remaining milk processors will keep price and non-price terms competitive. Many farmers expressed strong support for Saputo’s investment in cheese production in Tasmania.”


11.  ACCC opposes merger of chilled ready meals businesses

On 5 September 2019 the ACCC formally opposed the proposed merger between B&J City Kitchen Pty Ltd and Jewel Fine Foods.

Both companies supply chilled ready meals at retail and wholesale. Upon conducting a competition analysis, the ACCC was of the opinion that the proposed merger would “concentrate the two largest suppliers with demonstrated experience and track records in manufacturing a broad range of chilled ready meals.” The ACCC believed that other chilled ready meals providers would not be able to effectively compete.


Other Australian food regulatory issues

12.  Regulatory survey of fermented soft drinks finds excessive alcohol levels

In August 2019 the Implementation Sub-Committee for Food Regulation completed a national survey of alcohol content and labelling of fermented soft drinks.

The survey considered 239 samples collected across Victoria, Queensland, new South Wales, Tasmania and South Australia during 2017 and 2018. It found that a proportion of sampled products contained excess or undeclared alcohol content. This issue was most common among kombucha and water-based kefir products.

This October 2019 issue of FoodLegal Bulletin deals specifically with the regulatory issues facing fermented beverages.


13.   Australian Nationals party votes to overhaul use of animal descriptors on food

In a 14 September 2019 Federal Council meeting, the Australian National party voted to seek the prohibition of the use of animal descriptors such as “milk” and “meat” on behalf of plant-based products.

The National party, which is part of the political coalition that makes up the Federal Australian Government, voted to urge its coalition partner to implement legislative changes that would apply to the way plant-based products can be described.


International food regulatory issues

New Zealand

14.  New Zealand implements new laws protecting consumers and small businesses

On 24 September 2019 the New Zealand Ministry of Business, Innovation and Employment (MBIE) announced that it will amend the New Zealand Fair Trading Act to insert additional protections for consumers and small businesses against unfair commercial practices.

The MBIE has proposed the following amendments:

·         Prohibiting unconscionable conduct relating to the supply or acquisition of foods or services

·         Prohibiting unfair contract terms with respect to standard form business contracts worth less than $250,000

The Fair Trading Act already prohibits unfair contract terms with respect to standard form contracts entered into by consumers. The MBIE announced that the New Zealand Government intends to introduce these amendments in early 2020.


15.  New Zealand Court imposes fines for taking pipi

On 4 October 2019 the Whakatāne District Court convicted and fined four persons who had illegally taken pipi from Ohiwa Harbour.

The offenders collectively took more than 5,000 pipi and were each fined between $NZ900-1,500. The daily limit for pipi collection in New Zealand is 150 per person.

The New Zealand Ministry for Primary Industries (MPI) has issued a warning for persons who take fish in excess of prescribed limits.


United States

16.  FDA launches compliance dashboard

On 1 October 2019 the US Food and Drug Administration (FDA) launched its new dashboard designed to measure food industry compliance.

The dashboard uses data collected by the FDA in its inspection of food businesses to display metrics on general compliance with the US Food Safety Modernization Act. The dashboard specifically tracks compliance with preventative control rules for food, risk-based preventative controls and foreign supplier verification.

The dashboard will be updated quarterly. Current data indicates that the majority of US food businesses comply with relevant requirements.


17.  California faces lawsuit over animal confinement law

On 4 October 2019 the North American Meat Institute issued legal proceedings against the US State of California.

The proceedings relate to Proposition 12, which was passed in November 2018 and prohibits the sale of raw pork or veal from animals that do not meet minimum space requirements in confinement. The North American Meat Institute alleges that the law is an unconstitutional “overreach” and places uncompetitive burdens on the meat industry.


European Union

18.  EFSA launches public consultation on aflatoxins in food

On 4 October 2019 the European Food Safety Authority (EFSA) announced that it is seeking submissions from industry with respect to the risks to public health related to the presence of aflatoxins in food.

Aflatoxins are produced by the fungus Aspergillus, and are known to be carcinogenic and capable of damaging DNA. EFSA seeks further information on these effects and the exposure to aflatoxins through the food supply.

Submissions are due by 15 November 2019.


United Kingdom

19.  UK FSA seeks submissions on new method of determining sheep age

On 19 September 2019 the UK Food Standards Agency (FSA) announced that it was seeking submissions with respect to a proposed new method to determine the age of sleep for slaughter.

UK law requires sheep that are slaughtered at over 12 months of age to have certain body parts removed for public health reasons. Currently, whether a sheep is over 12 months of age is determined with reference to the number of permanent teeth present. The proposal would provide an alternative ageing method under which sheep born in the previous calendar year would be considered as aged under 12 months if submitted for slaughter prior to 30 June the following calendar year.

Submissions are due by 31 October 2019.



20.  Japanese list of allergenic foods expands to include almonds

It was reported in October 2019 that the Japanese Consumer Affairs Agency had included almonds on the list of potentially allergenic substances that it recommends be displayed on product labels.

The Japanese Consumer Affairs Agency made this decisions after examining 4,800 cases of allergic responses and finding that 21 cases were related to almonds. Japanese laws distinguish between substances that must be declared on product labels and substances that may be voluntarily declared. Almonds were added to the list of substances that may be voluntarily declared.

This is general information rather than legal advice and is current as of 17 Oct 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.