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

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

© Lawmedia Pty Ltd, November 2019

Food Standards Australia New Zealand (FSANZ) news

        1.    FSANZ calls for submissions on Proposal P1054 – Pure and highly concentrated caffeine products

On 1 November 2019 FSANZ issued a call for submissions from stakeholders regarding Proposal P1054 to address the availability of pure caffeine and highly concentrated caffeinated foods for retail sale.

FSANZ CEO Mark Booth said “Our risk assessment confirmed pure or highly purified forms of caffeine pose an unacceptably high risk to consumers. Ingestion of small amounts of these substances can result in severe health effects, including death. In addition, the risk assessment has determined a maximum safe level for total caffeine in food should be set at less than 5% - unless there are existing permissions in the Code (i.e. energy drinks and cola drinks).”

Submissions are due by 14 November 2019.


        2.    FSANZ accepts Application A1191 - Mono- and diglycerides of fatty acids as a surface coating

On 1 November 2019 FSANZ announced that it had accepted Application A1191 by Apeel Technology, Inc to ​extend the permission of the food additive mono- and diglycerides of fatty acids (INS 471) as a surface coating on fruit & vegetables to increase postharvest shelf life.

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


        3.    FSANZ accepts Application A1190 - 2'-fucosyllactose in infant formula and other products

FSANZ announced on 25 October 2019 that it had accepted Application A1190 from Jennewein Biotechnologie to permit 2'-fucosyllactose (2'-FL), produced by microbial fermentation using genetically modified Escherichia coli (E.coli) strains, in infant formula products, follow-on formula and formulated supplementary foods for young children.

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


        4.    FSANZ approves Applications to amend Food Standards Code

FSANZ announced on 25 October 2019 that it had approved the following Applications to amend the Australia New Zealand Food Standards Code (Food Standards Code):

·         Application A1163 – Food Irradiation definition of herbs and spices

·         Application A1169 – Alpha-glucosidase from Trichoderma reesei as a PA (enzyme)

The Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum) has until 24 December 2019 to either request FSANZ to review the approved standard or inform FSANZ that it does not intend to request a review.


        5.    FSANZ accepts Application A1184 - Glucoamylase from GM Aspergillus niger

On 23 October 2019 FSANZ announced that it had accepted Application A1184 from Novozymes Australia Pty Ltd to approve the use of glucoamylase sourced from GM Aspergillus niger containing the gene from Trametes cingulata.

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


        6.    FSANZ accepts Application A1185 – Alpha-amylase from Aspergillus niger as a Processing aid

FSANZ announced on 23 October 2019 that it had accepted Application A1185 from Novozymes Australia Pty Ltd to approve the use of Alpha-amylasee sourced from Rhizomucor pusillus in GM Aspergillus niger.

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


Australian Competition and Consumer Commission (ACCC) news

        7.    ACCC announces public consultations on Murray-Darling Basin water markets

On 17 October 2019 the ACCC issued a call for stakeholder views with respect to the operation of water markets in the Murray-Darling Basin.

As part of this announcement, the ACCC released an issues paper setting out the following focus areas for comment:

        ·         Market trends and drivers

        ·         Market transparency and information

        ·         Regulation and institutional settings

        ·         Market participant practices and behaviours

        ·         Competition and market outcomes

Submissions close on 29 November 2019. The ACCC has also commenced a series of public forums being held from 7-29 November 2019.


Other Australian food regulatory issues

        8.    TGA seeks submissions on Sports Supplements in proposed therapeutic goods order

On 22 October 2019 the Therapeutic Goods Administration (TGA) issued an invitation to industry to comment on a proposed legislative order.

The proposed order would have the effect of automatically classifying sports supplements as therapeutic goods (rather than as foods) where they meet a specified criteria.

FoodLegal encourages food businesses that sell sports foods to consider making a submission to the TGA. FoodLegal can assist in making any submission.

We discuss this issue in more detail in this November 2019 edition of FoodLegal Bulletin.


        9.    Australian Federal Government holds consultation on Country of Origin Labelling for complementary medicines

On 3 October 2019 the Australian Federal Department of Industry, Innovation and Science announced that it was seeking submissions in relation to the way that Australia’s Country of Origin labelling requirements for food apply to complementary medicines.

In Australia, “complimentary medicines” may include numerous products such as vitamin pills and capsules, many dietary supplements, health-improving formulations, et al.

The announcement was made after a report by the Complementary Medicines Taskforce identified that changes to Australia’s Country of Origin Labelling laws, including tightening the “substantial transformation” test, made it harder for complementary medicines to voluntarily claim that they had been “Made in Australia”. The Department of Industry, Innovation and Science is seeking submissions on this issues and potential solutions, including the possible implementation of specific manufacturing tests for the complementary medicine industry or the development of an entirely separate origin labelling system for the complementary medicine industry.

Submissions closed on 30 October 2019.


        10.  Taco Bell and Taco Bill in Court over naming dispute

In November 2019 Collins Foods, the Australian franchisor of Taco Bell, announced that it was facing legal action from Taco Bill Mexican Restaurants Australia with respect to the similarity of the names of the two chains.

Taco Bell operates predominantly in Queensland, whereas Taco Bill operates in Victoria and southern NSW. In launching the action in the Federal Court of Australia, Taco Bill claims that Taco Bell should be prevented from expanding into Victoria and Southern NSW on the basis that consumers would be misled by the similarity of the two chains’ names.

This is not the first time that the Taco Bell name has come before the Federal Court. In 1982, Taco Bell was prevented from opening stores in Australia as the Federal Court found that the trade mark "Taco Bell" had already been registered by another restaurant in Australia, and that the establishment of Taco Bell stores would amount to trade mark infringement.


        11.  Australian farmer launches glyphosate lawsuit

It was reported in October 2019 that an Australian farmer had initiated legal action in the Victorian Supreme Court against herbicide manufacturer Monsanto in relation to damages caused by glyphosate.

Glyphosate is a common ingredient found in herbicides and has been the subject of several lawsuits in the united states. This action represents the first glyphosate-related lawsuit to be brought in Australia. The lawsuit claims that long-term exposure to glyphosate can contribute cancer.

The case is not expected to be heard until at least late 2020.


International food regulatory issues

United States

        12.  Meat labelling lawsuit dropped as Mississippi changes laws

On 7 November 2019 plant-based food advocates dropped an ongoing lawsuit against the State of Mississippi in relation to laws that prohibited plant-based products from using descriptors that are usually associated with meat.

The lawsuit was dropped on the same day that Mississippi introduced changes to the law that would permit plant-based products to use these descriptors (such as “burger” or “hot dog”) as long as the products also include terminology that indicates that they are plant-based.


        13.  Kellogg’s settles “healthy” cereal lawsuit

In October 2019 a the US District Court for the Northern District of California granted preliminary approval to a settlement reached between Kellogg’s and the plaintiffs in a class action lawsuit.

The plaintiffs claimed that Kellogg’s falsely advertised its breakfast cereal as being healthy when in fact it contained added sugar. As part of the settlement, Kellogg’s agreed to pay $20 million and cease using the words “healthy”, “wholesome”, “nutritious” or “benefits” to describe its cereal products as a whole. Kellogg’s also agreed to refrain from using “Heart Health” and “Lightly Sweetened” to describe its Smart Start, Raisin Bran and Frosted Mini-Wheats products.


        14.  US Congress tables law requiring plant-based meat to be labelled “imitation”

On 25 October 2019 a proposed bill was introduced to US Congress that would have the effect of requiring products made to simulate beef to be labelled as “imitation”.

The bill was introduced jointly by a Republican and a Democrat and would apply to products simulating beef that do not come entirely from a cow. The reason given for the bill is that it would reduce consumer confusion and increase food labelling transparency.


        15.  FDA faces lawsuit regarding perchlorate ban

On 29 October 2019 a number of health and environmental groups issued proceedings against the US Food and Drug Administration (FDA) in the US District Court for the Southern District of New York.

The proceeding relates to a 2017 decision by the FDA not to ban the use of perchlorate in food packaging. The plaintiffs argue that in making this decision, the FDA ignored evidence of detrimental health effects associated with the use of perchlorate. The FDA argues that the estimated intake of perchlorate among the US population is at a level that presents no statistically significant effect on health.


        16.  Kombucha manufacturer faces lawsuit regarding bacteria claims

In October 2019 a lawsuit was filed in Portland, Oregon against Brew Dr Kombucha with respect to claims made on pack about the presence of beneficial bacteria.

The plaintiff claims that the product claimed to contain “billions” of probiotic bacteria; however, product testing found that the product contained only 50,000 colony forming units of probiotic bacteria. The plaintiff alleges that this amounts to false advertising. The manufacturer of the product is already facing a separate lawsuit dealing with the same issue, and has amended its product labels.



        17.  China publishes new set of food safety regulations

On 31 October 2019 the China State Council released the Regulation on the Implementation of the Food Safety Law, which contains a set of regulations regarding food safety, food inspection and assessment and food import and export.

The Regulation was previously released for comment in 2017. Since then, it has been updated to reward whistle-blowers and informants who disclose food safety violations, require prominent labelling for genetically modified foods, and in some circumstances impose personal liability for food offences on the legal representative of a company.

The Regulation comes into effect on 1 December 2019.



        18.  Singapore to introduce colour-coded nutrition information and ban sugary beverage advertising

The Singapore Ministry of Health announced at an October 2019 conference that it is introducing two measures to impact consumer choice with respect to food products.

The two measures will apply to pre-packed sugar sweetened beverages and include:

·         Requiring sugar sweetened beverages products to display colour-coded nutrition information on front of pack to provide at-a-glance information with respect to the nutritional quality of the product

·         Banning sugar sweetened beverages that receive the poorest front-of-pack nutrition grade from being advertised on all local mass media platforms

The Ministry of Health intends to obtain feedback on each of these measures in 2020.


        19.  Singapore amends requirements for imported pork

On 22 October 2019 the Singapore Food Agency announced it was amending its import conditions for imported pork.

Under the amendments, all pork imported into Singapore must:

        ·         Come from a country that has been free from Foot and Mouth Disease, African Swine Fever, Swine Vesicular Disease and Classic Swine Fever for at least three months prior to the date of slaughter and export; and

        ·         Be kept in a zone that is free from Foot and Mouth Disease, African Swine Fever and Classic Swine Fever.

This is general information rather than legal advice and is current as of 13 Nov 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.