Current developments in food law and policy in Australia and overseas (June-July 2020)
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 2020
Food Standards Australia New Zealand (FSANZ) news
1. FSANZ commences review of sugar labelling options
FSANZ announced on 25 May 2020 that it had commenced a review of sugar labelling requirements under the Australia New Zealand Food Standards Code (Food Standards Code).
The review is in response to an August 2019 request by the Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum) to review nutrition labelling for added sugars in the context of consumers understanding such information to make informed choices.
FSANZ is currently reviewing potential labelling options and to formulate a Proposal, and is expected to consult with stakeholders throughout the development and assessment processes for the Proposal.
2. FSANZ approves Food Standards Code amendments
On 22 June 2020 FSANZ announced that it had approved amendments to the Food Standards Code arising from the following Applications:
· Application A1184 – Glucoamylase from GM Aspergillus niger (donor Trametes cingulata) as a processing aid (Enzyme)
· Application A1185 – Alpha-amylase from GM Aspergillus niger as a processing aid (Enzyme)
FSANZ has notified the Food Forum of its approval. The Food Forum has until 21 August 2020 to either request FSANZ to review its approval or inform FSANZ that it does not intend to request a review.
3. FSANZ calls for submissions on Application A1194 - Glucoamylase from GM Trichoderma reesei as a processing aid
On 12 June 2020 FSANZ called for submissions from industry with respect to Application A1194 by Danisco New Zealand Ltd to permit a new processing aid for use in brewing, the manufacture of bakery products, the production of potable alcohol and starch processing.
Submissions are due by 27 July 2020.
4. FSANZ calls for submissions on Application A1195 - Alpha-amylase as a processing aid
On 9 June 2020 FSANZ called for submissions from industry with respect to Application A1195 by Danisco New Zealand Ltd to permit the use of Alpha-amylase enzyme from (GM) Trichoderma reesei as a processing aid in brewing and the production of potable alcohol.
FSANZ CEO Mark Booth said “Alpha-amylase from similar production strains, have a long history of safe use. If approved, this enzyme will be used as a processing aid at low levels and is either not present in the final food or present in insignificant quantities.”
Submissions are due by 21 July 2020.
5. FSANZ calls for submissions on Application A1199 – Food derived from genetically modified potato lines V11 & Z6 (Bayer Australia's "INNATE" potato variety lines)
On 22 May 2020 FSANZ called for submissions from industry with respect to Application A1199 by Bayer Australia Ltd 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 CEO Mark Booth said “We consider food from these potato lines to be as safe for human consumption as food derived from conventional potato cultivars.”
Submissions are due by 9 July 2020.
6. FSANZ accepts Application A1202 – Food derived from insect-resistant & herbicide-tolerant corn DP23211
FSANZ announced on 20 May 2020 that it had accepted Application A1202 by Dow AgroSciences Australia Pty Ltd to seek approval for food derived from insect-resistant & herbicide-tolerant corn DP23211
FSANZ has stated that it will provide an opportunity to comment at a later date.
7. FSANZ accepts Application A1193 – Irradiation of all fresh fruit and vegetables
On 15 May 2020 FSANZ 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 has stated that it will provide an opportunity to comment at a later date.
8. FSANZ approves Food Standards Code amendments
On 14 May 2020 FSANZ announced that it had approved amendments to the Food Standards Code arising from the following Application and Proposal:
· Application A1183 - Enzymatic production of Rebaudioside E
· Proposal M1017 - Maximum Residue Limits (2019)
FSANZ has notified the Food Forum of its approval. The Food Forum has until 13 July 2020 to either request FSANZ to review its approval or inform FSANZ that it does not intend to request a review.
9. Food Standards Code amendments published
On 14 May 2020 FSANZ gazetted Amendment 192 to the Food Standards Code. This amendment contains changes arising from the following Applications:
· Application A1159 – Triacylglycerol lipase from Trichoderma reesei as a processing aid (enzyme)
· Application A1174 – Xylanase from Trichoderma reesei as a PA (Enzyme)
· Application A1182 – Glucose Oxidase from a GM Trichoderma reesei as a Processing Aid (Enzyme)
Australian Competition and Consumer Commission (ACCC) news
10. ACCC penalises yoghurt manufacturer for failing to declare ingredient
On 15 May 2020 the ACCC issued an infringement notice against Queensland Yoghurt Company Pty Ltd for omitting the presence of gelatine on some of its ingredients lists.
The ACCC argued that the omission of gelatine was misleading or deceptive in breach of the Australian Consumer Law. The ACCC also expressed concern that the apparent absence of gelatine made the product more attractive to consumers hen compared with competing products.
We address this ACCC action in further detail in this June-July 2020 “bumper edition” of FoodLegal Bulletin.
11. ACCC announces wine grape industry changes
The ACCC announced on 19 June 2020 that a number of Australian winemakers had agreed to amend their supply agreements with grape growers.
The ACCC had raised concerns with a number of winemakers following its 2019 grape market study. The ACCC study identified a high prevalence of standard form contracts containing terms that were potentially unfair to growers. These included terms allowing winemakers to make unilateral amendments to the agreement and terms granting winemakers broad powers of inspection over the grower’s property.
Although the ACCC says that many of these concerns have now been addressed, the ACCC has made reference to many agreements still imposing excessively lengthy payment periods.
12. ACCC flushable wipes appeal dismissed
On 15 June 2020 the Full Court of the Australian Federal Court dismissed an appeal by the ACCC against an earlier decision regarding “flushable” claims made in relation to disposable wipes.
In June 2019 the Australian Federal Court found that it was not misleading for the wipes to be sold as flushable, as the ACCC was not able to establish that the wipes had actually contributed to any real harm in particular instances. The ACCC appealed on the basis that Australian water authorities had identified significant problems arising from sewerage blockages caused by wipes.
Australian water authorities are currently developing an Australian industry standard for “flushable” claims.
Although this case did not concern a food product, it is a further example of how a claim about product disposability might now present a legal risk. In particular, any similar claim by a food packager is likely to attract scrutiny.
Other Australian food regulatory issues
13. NSW proposes restrictions for same-day alcohol delivery
On 4 May 2020 the NSW State Government invited public consultation on proposed amendments to liquor licensing regulations.
The amendments include new restrictions on same-day alcohol delivery services, including mandatory age verification procedures and banning unattended deliveries. We address the proposed changes and other issues to consider about online sales of alcohol in this June-July 2020 ‘bumper edition’ of FoodLegal Bulletin.
Any comments for the public consultation process are due by 28 June 2020.
14. TGA makes final decision on caffeine listing
On 7 May 2020 the Therapeutic Goods Administration (TGA) announced its final decision to list caffeine on the Poisons Standard.
The final decision reaffirms the TGA’s February 2020 interim decision to list caffeine under Schedules 4 (as a prescription-only medicine) and 6 (as a poison) of the Poisons Standard. The Poisons Standard listing applies to caffeine if used in a therapeutic good or any other product where caffeine is present at levels greater than 5%.
Caffeine may be present in foods at levels up to 5% and beverages up to 1% subject to any other restrictions in the Food Standards Code.
15. Ad Standards dismisses fast food complaint
In a 10 June 2020 decision the Ad Standards Community Panel dismissed a complaint against a television advertisement by Hungry Jacks.
The advertisement depicted people engaging in some physical activities including so-called “swimming” on a skateboard while at home. Complaints alleged that this behaviour was unsafe. However, the Ad Standards Community Panel found that most members of the community would view the advertisement as a humorous collection of videos rather than a depiction intended to encourage young people to imitate the behaviour.
16. TGA releases social media advertising guide
On 13 May 2020 the TGA published guidance for the advertisement of medicines using social media.
The guide deals with general advertising restrictions for therapeutic goods and responsibilities that apply to business owners. It also provides guidance for social media influencers that may not be the brand owner but nevertheless make representations about the product.
International food regulatory issues
17. FDA guidance permits ingredient swaps without label amendment
In May 2020 the US Food and Drug Administration (FDA) issued temporary guidance permitting food businesses to swap ingredients without making an amendment to their label in some instances.
The guidance was issued as a response to global supply chain issues brought about by the COVID-19 pandemic. Under the guidance, the FDA will permit undisclosed ingredient changes where:
· No allergen is introduced
· The substituted ingredient makes up 2% or less of the finished product
· The ingredient is not a defining characteristic of the product
· The substitution will have no impact on health claims or functionality
The US FDA had not specified an end date for its guidance as at the issue of the temporary guidance.
18. Confectionary manufacturer sued over “real milk” claim
In New York, a group of consumers have brought an action against Conagra Brands claiming deceptive labelling of pudding products with claims of being “made with real milk”.
The plaintiffs allege that the products in question are actually made using non-fat milk powders, rather than whole milk. The plaintiffs also claim that the fat portion of the product instead comes from palm oil (rather than milkfat), and that this results in a different nutritional profile than if the products were made using traditional milk ingredients.
19. US publishes Proposed amendment to GM requirements
On 13 May 2020 the US Department of Agriculture published a proposed amendment to the US regulation of genetically modified plants.
Under the proposed amendment, genetic modifications that create changes in plants that have also been made through conventional breeding would not require specific federal oversight. According to the US Department of Agriculture, the proposed amendment reflects updated technology and knowledge about the safety of genetic modification in these circumstances.
The proposed amendment is due to come into effect on 5 April 2021.
20. US Department of Agriculture commits to purchasing surplus food
On 4 May 2020 the US Department of Agriculture announced that it would purchase surplus food supplies during the COVID-19 pandemic.
The US Department of Agriculture has set aside US$470 million for this purpose and intends to purchase commodities including fruits, vegetables, meat, dairy and seafood.
21. EFSA publishes opinion on Ochratoxin A health risks
On 13 May 2020 the European Food Safety Authority (EFSA) published its opinion on the public health risks related to the presence of Ochratoxin A in food.
Ochratoxin A can be naturally present in mould found in cereals, meats, fruit and cheese. According to EFSA, current safety data suggests that Ochratoxin A can damage the DNA and be carcinogenic to the kidney if ingested in unsafe amounts.
EFSA previously set a tolerable weekly intake for Ochratoxin A, but is now revising its assessment in light of new scientific data. As at June 2020, EFSA is working with the European Commission to set a new limit on Ochratoxin A.
22. France to introduce additional food information requirements
On 5 June 2020 France notified the European Commission of proposed laws that would expand the information requirements for some prepacked foods and agricultural products.
In particular, the proposed laws would:
· Require mandatory information for prepacked foods to be made available online
· Require the declaration of the origin of cocoa in cocoa products, origin of honey in blends and the presence of royal jelly
· Ban the use of names associated with animal origin in relation to vegan or vegetarian analogues
· Require beer labels to include the name and address of the manufacturer
23. UK FSA publishes updated allergen guidance
On 18 June 2020 the UK Food Standards Agency (FSA) published updated technical guidance for allergen labelling requirements.
The guidance relates to new allergen labelling laws which are due to come into effect on 1 October 2021. The laws will now require allergen labelling on foods packaged onsite by a business before a customer selects or orders it from the same premises. Such products will be required to bear a label including an ingredients list and allergen declaration.
This is general information rather than legal advice and is current as of 23 Jun 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.