Current developments in food law and policy in Australia and overseas (February 2020)

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

© Lawmedia Pty Ltd, February 2020

Food Standards Australia New Zealand (FSANZ) news

1.    FSANZ requests submissions on Proposal P1052 - Primary Production and Processing Requirements for High-risk Horticulture

On 5 February 2020 FSANZ called for submissions from industry with respect to Proposal P1052 to consider the development of a primary production and processing (PPP) standard for high-risk horticulture as part of a broader review of chapter 3 and 4 of the Food Standards Code.

FSANZ CEO Mark Booth said "This is the first of two public rounds of consultation. This initial round of consultation is seeking information from stakeholders to help us better understand these high-risk sectors and whether a regulatory approach is required – including what that regulation might look like. We are also establishing a Standard Development Advisory Group consisting of representatives from industry peak bodies and government regulators to assist with and advise on the current work".

Submissions are due by 18 March 2020.


2.    FSANZ accepts Application A1198 - Food derived from enhanced yield & herbicide-tolerant corn line DP202216

On 31 January 2020 FSANZ announced that it had accepted Application A1198 by Dow AgroSciences Australia Pty Ltd to permit the use of corn (maize) line DP202216 as a new food produced using gene technology.

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


3.    FSANZ accepts Application A1199 - Food derived from Innate potato lines V11 & Z6

FSANZ announced on 22 January 2020 that it had accepted Application A1199 by SPS International Inc to seek approval for food derived from genetically modified potato lines V11 & Z6, which have lower reducing sugars, low acrylamide potential, reduced browning (black spot) and late blight protection.

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


4.    FSANZ accepts Application A1194 - Glucoamylase from GM Trichoderma reesei as a processing aid

On 17 January 2020 FSANZ announced that it had accepted Application A1194 by Danisco New Zealand Ltd to permit the use of glucoamylase sourced from GM Trichoderma reesei as a processing aid.

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


5.    FSANZ accepts Application A1195 - Alpha-amylase as a processing aid

FSANZ announced on 17 January 2020 that it had accepted Application A1195 by Danisco New Zealand Ltd to permit the use of Alpha-amylase as a processing aid in brewed beverages and potable alcohol production.

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


6.    FSANZ accepts Application A1196 - Food derived from nematode-protected and herbicide-tolerant soybean GMB151

On 17 January 2020 FSANZ announced that it had accepted Application A1196 by BASF Australia Ltd to seek approval for food derived from nematode-protected and herbicide-tolerant soybean line GMB151, genetically modified to provide resistance to nematodes and the HPPD group of herbicides.

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


7.    Amendments to Food Standards Code gazetted

FSANZ announced the gazettal of Amendment 190 to the Australia New Zealand Food Standards Code (Food Standards Code) on 17 January 2020.

The amendments arise from the following Applications:

·         Application A1163 – Food Irradiation definition of herbs and spices

·         Application A1169 – Alpha-glucosidase from Trichoderma reesei as a Processing Aid (Enzyme)


8.    FSANZ accepts Application A1193 – Irradiation as a phytosanitary measure in food

On 7 January 2020 FSANZ announced that it had accepted Application A1193 by the Queensland Department of Agriculture and Fisheries to extend the option of phytosanitary irradiation to all types of fresh fruits and vegetables.

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


9.    FSANZ Application withdrawn by applicant

FSANZ announced on 7 January 2020 that Application A1188 to permit the use of gibberellic acid as a processing aid for germination of wheat, rye and triticale had been withdrawn by the applicant, Cargill Malt Asia Pacific Pty Ltd.


10.  FSANZ accepts Application A1192 – Food derived from herbicide-tolerant corn line MON874

On 20 December 2019 FSANZ announced that it had accepted Application A1192 by Bayer Australia Ltd to seek approval for food derived from herbicide-tolerant corn line MON87429, genetically modified to provide resistance to dicamba, glufosinate, 2,4-D and the aryloxyphenoxypropionate group of herbicides.

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


11.  FSANZ calls for submissions on Application A1186 - Soy Leghemoglobin in meat analogue products

FSANZ issued a call for submissions from industry on 20 December 2019 with respect to Application A1186 by Impossible Foods Inc to allow the use of soy leghemoglobin derived from P.pastoris as a component in meat analogue products.

FSANZ CEO Mark Booth said “The purpose of this haem-containing ingredient is to impart 'meat-like characteristics' by replicating the flavour, smell of meat and as a source of iron. These products are currently sold overseas in the United States, Singapore, Hong Kong and Macau. FSANZ has undertaken a risk and technical assessment which found no public health and safety concerns associated with its intended use.”

Submissions are due by 14 February 2020.


12.  FSANZ approves amendments to Food Standards Code

On 20 December 2019 FSANZ approved amendments to the Food Standards Code arising out of the following Applications:

·         Application A1155 – 2'-FL and LNnT in infant formula and other products

·         Application A1171 – Endo-inulinase from GM Aspergillus oryzae as a PA (Enzyme)

·         Application A1176 – Enzymatic production of Steviol Glycosides

·         Application A1181 – Maximum residue limits for Imazapyr in Barley Grain

FSANZ has notified its approval to the Australia and New Zealand Ministerial Forum on Food Regulation, which has until 18 February 2020 to either request FSANZ to review its approval or inform FSANZ that it does not intend to request a review.


Australian Competition and Consumer Commission (ACCC) news

13.  Federal Court orders penalties against car wash franchisor

On 24 January 2020 the Australian Federal Court penalised former car was franchisor Geowash Pty Ltd, its director and its franchising manager a total of $4.2 million for breaching the Franchising Code of Conduct.

The Court found that Geowash made false or misleading representations, failed to act in good faith and acted unconscionably by creating the impression that amounts charged to franchisees would be used to establish their car wash site, when in fact they were used for other Geowash expenses.

Personal penalties were ordered against the Geowash director and franchising manager as partial redress to franchisees. Both the director and franchising manager were disqualified for managing corporations in Australia.’

Although this case does not concern a food business, it demonstrates action taken against a franchisor for breaching parts of the Franchising Code of Conduct.


14.  ACCC flags concerns with pharmaceutical acquisition

On 19 December 2019 the ACCC raised concerns with the proposed acquisition of Juno PC by pharmaceutical company iNova.

The ACCC was concerned that the acquisition would limit competition in the market for weight loss medication, as Juno PC is developing a product that would compete against iNova’s current offerings. ACCC Commissioner Stephen Ridgeway said “We are concerned that the proposed acquisition would remove the opportunity for Juno PC’s new product to enter the market as a strong competitor to iNova. Buying out a potential future competitor can raise competition concerns in the same way that buying an existing competitor can”.

The ACCC has released a statement of issues regarding the acquisition. Interested parties can make a submission on the acquisition by 7 February 2020.


Other Australian food regulatory issues

15.  Northern Territory updates food risk classifications

In October 2019 the Northern Territory published an updated version of its “Food Business Risk Classification Framework”.

The document provides guidance on the various risk levels the Northern Territory Department of Health believes are associated with various foods and food business activities. Food businesses are designated one of four risk levels depending on the types of activities they perform and the foods they deal with.

The document has aroused great concerns for the Aged Care sector in Australia by potentially classifying many foods as high risk and restricting their use by meals providers servicing the elderly.


16.  Victoria to introduce container deposit scheme

In February 2020 the Victorian State Government confirmed its intention to introduce a container deposit scheme.

The Victorian government is yet to publicly announce the details of the scheme. However, it is likely to be similar to container deposit schemes in place in South Australia, the Northern Territory, Queensland and New South Wales whereby consumers can collect 10 cents by returning eligible containers to drop-off points.

The scheme is due to be implemented in 2023.


17.  Sydney winds back alcohol consumption “lock-out” laws

On 14 January 2020 changes to “lock-out” laws in place in New South Wales took effect.

The laws placed time restrictions on entry into liquor licensed venues and bottle shop opening hours in Sydney. They also limited the types of alcoholic beverages that could be served by licensed venues after certain times. The laws have been wound back to remove time-based entry restrictions across Sydney with the exception of Kings Cross.

The liquor laws are set to be further reviewed in November 2020.


18.  TGA responds to submissions for increased ingredient information

On 23 January 2020 the Australian Therapeutic Goods Administration (TGA) provided its response to submissions received in relation to its proposal to provide greater online therapeutic ingredient information.

Under the TGA proposal, the online database for ingredients used in therapeutic goods would be expanded to include the names of excipient ingredients, as opposed to only active ingredients. The TGA noted concerns that including such information could jeopardise commercially sensitive information and has proposed to:

·         display excipient names in the public view of ARTG entries for medicines, where these ingredients are not present in a flavour, fragrance or colour proprietary ingredient mix

·         identify flavour, fragrance and colour proprietary ingredient mixes using the generic terms 'flavour', 'fragrance' and 'colour' and

·         apply this approach to all medicines and biologicals, but not extend it to Other Therapeutic Goods (OTGs), such as disinfectants.

The TGA expects to implement these changes in the first half of 2020.


International food regulatory issues

New Zealand

19.  New Zealand seeks submissions on proposed Country of Origin labelling laws

On 9 December 2019 the New Zealand Ministry of Business, Innovation and Employment announced that it was seeking submissions in relation to proposed Country of Origin labelling requirements.

The proposed laws arise from the Consumers' Right to Know (Country of Origin of Food) Act. We discuss the proposed laws and the potential impact for food products traded between New Zealand and Australia in this February 2020 edition of FoodLegal Bulletin.

Submissions are due by 10 February 2020.


United States

20.  Kansas Court finds prohibitions on agricultural disclosure unconstitutional

On 22 January 2020 the Kansas US District Court found much of the Farm Animal and Field Crop and Research Facilities Protection Act to be unconstitutional.

The Act, which was first introduced in 1990, restricted whistleblowing with respect to practises on factory farms. The Court found that this restricted the US constitutional right to free speech. Similar laws in other US states have been found to be unconstitutional for the same reason.


21.  Court finds that Dr Pepper did not make misleading weight loss claims

In a 30 December 2019 decision the 9th US Circuit Court of Appeals found that Dr Pepper beverages did not make misleading claims about weight loss or healthy weight management in breach of Californian laws.

The plaintiff had alleged that it was misleading for the product label to state “diet” even though the product had no weight loss benefit. The Court found that “diet” soft drinks are common in the market, and that the descriptor “diet” on behalf of such a product is not false or descriptive simply because some consumers may “unreasonably interpret the term differently”.


United Kingdom

22.  UK Food Standards Agency seeks submissions on updated allergen guidance

On 23 January 2020 the UK Food Standards Agency (FSA) announced that is seeking submissions in relation to updated guidance designed to assist with the implementation of new allergen laws.

The new laws were introduced in September 2019 and will apply from 1 October 2021. Under these new laws, food that is packaged on-site after being ordered by a consumer will require an ingredients list with allergens emphasised on it. The FSA has updated its technical guidance in order to reflect these changes.

Submissions are due by 6 March 2020.


23.  FSA provides Brexit update

On 31 January 2020 the UK left the EU and entered into a transitional period that will last until 1 January 2021.

The UK FSA has advised that current trade arrangements will remain in place until 1 January 2021. The FSA has implemented a number of new UK laws that are equivalent to existing EU laws in order to maintain consistency. The UK government is negotiating new rules for trade, travel and business that will apply after 1 January 2021.


European Union

24.  EFSA seeks submissions on genome analysis for food and feed

On 16 January 2020 the European Food Safety Authority (EFSA) announced that it is seeking submissions on how to conduct and describe the whole genome sequence analysis of microorganisms added to food and feed.

The submissions will be used in developing guidance for applicants who wish to place microorganisms on the market. The use of such products requires specific approval which is based on a risk assessment by EFSA. Applicants will be able to use the guidance where EFSA requests genome sequencing information in order to make its risk assessment.



25.  China to introduce mandatory allergen labelling

In January 2020 the Chinese National Health Commission (NHC) released a draft law that would require allergens to be labelled on food products.

The proposed law would apply to allergens that have been intentionally added to food but also allergens that are unintentionally present as a result of cross content. Such labelling is currently voluntary in China. The proposed law would also introduce compositional requirements for claims including “non-GMO” and “no artificial colours”.

The NHS is currently seeking submissions with respect to the proposed law. Submissions are due by 28 February 2020.



26.  Philippines to introduce salt tax

In October 2019 the Filipino Department of Health announced it would introduce a tax on products with a high salt content.

The tax would form part of a suite of laws designed to reduce salt intake, including restrictions on marketing, mandatory front-of-pack labels and salt reduction in community eating spaces. The proposed measures were criticised in December 2019 for inadvertently targeting lower socioeconomic groups that rely on saltier foods.


This is general information rather than legal advice and is current as of 5 Feb 2020. 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.