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

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

© Lawmedia Pty Ltd, September 2020

Food reform proposal

1.    Australian food regulators provide update on reform process

On 18 August 2020 the Australian Federal Department of Health provided an update on the progress of the reform of Australia’s food regulatory framework.

The reform was announced on 20 March 2020 and according to the Department of Health will aim to enhance the cooperation, consistency, operations and underlying policies amongst Australian State and Territory food regulators. The Department of Health anticipates that it will conduct stakeholder consultation on many of these objectives throughout September-October 2020.

This September 2020 edition of FoodLegal Bulletin considers the proposed reform policy in more detail in our article “Australian Government initiates major food regulatory reform processes”.


2.    Australian Department of Agriculture releases draft export rules for consultation

On 7 September 2020 the Australian Federal Department of Agriculture released the Exposure Draft Export Control Rules 2020 (Export Rules) for public comment.

The Export Rules are comprised of seven commodity-specific sets of rules covering eggs, fish, meat, milk organic goods, plants and poultry. The Export Rules are designed to operate in conjunction with the Export Control Act 2020, which is due to commence on 28 March 2021.

Submissions on the draft Export Rules are due by 5 November 2020.


Food Standards Australia New Zealand (FSANZ) news

3.    FSANZ calls for submissions on Application A1191 – Mono- and diglycerides of fatty acids (INS 471) as glazing agent for fruits and vegetables

On 3 September 2020 FSANZ called for submissions from industry with respect to 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.

Acting FSANZ CEO Glen Neal said “The food additive is already allowed to be used as a glazing agent for fruits and vegetables in a number of countries including; Chile, China, the European Union, Japan, Mexico, Peru and the United States. FSANZ conducted a safety assessment and found no concerns about the safety of this additive as a glazing agent for consumers.”

Submissions are due by 15 October 2020.


4.    Amendments to Food Standards Code gazetted

On 3 September 2020 Amendment No. 195 to the Australia New Zealand Food Standards Code (Food Standards Code) was gazetted. The amendments incorporates changes to the Food Standards Code arising out of the following Applications:

·         Application A1184 – Glucoamylase from GM Aspergillus niger (donor Trametes cingulata)

·         Application A1185 – Alpha-amylase from GM Aspergillus niger as a processing aid (enzyme)


5.    FSANZ extends deadline for submissions on Proposal P1054 – Pure and highly concentrated caffeine products

On 1 September 2020 FSANZ announced that it had extended the deadline for written submissions on Proposal P1054 to regulate pure and highly concentrated caffeine in foods.

Submissions are now due by 11 September 2020.


6.    FSANZ accepts Application A1207 - Rebaudioside M as a Steviol Glycoside from Saccharomyces cerevisiae

FSANZ announced on 14 August 2020 that it had accepted Application 1207 by Amyris Inc. to permit the use of the Rebaudioside M produced from a genetically modified Saccharomyces cerevisiae (S. cerevisiae) as a general purpose sweetening agent.

FSANZ has stated that it will provide an opportunity to comment at a later date.


7.    FSANZ announces Proposal M1080 – Maximum residue limits (2020)

On 14 August 2020 FSANZ announced its Proposal M1080 to consider varying certain maximum residue limits for residues of specified agricultural and veterinary chemicals that may occur in food commodities.

FSANZ has stated that it will provide an opportunity to comment at a later date.


8.    FSANZ accepts Application A1206 – Subtilisin from GM Bacillus licheniformis as a processing aid

On 6 August 2020 FSANZ announced that it had accepted Application A1206 from Novozymes Australia Pty Ltd to permit the use of subtilisin from a genetically modified strain of Bacillus licheniformis containing the subtilisin gene from Pyrococcus furiosus, as a processing aid in the production of potable alcohol.

FSANZ has stated that it will provide an opportunity to comment at a later date.


9.    FSANZ calls for submissions on Application A1186 – Soy Leghemoglobin in meat analogue products

On 6 August 2020 FSANZ called for submission from industry 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 “[Previous] Feedback from stakeholders did not raise any new evidence of concerns regarding public health and safety. On this basis we have re-affirmed that there are no public health and safety concerns associated with the proposed use of soy leghemoglobin, in the form of LegH Prep."

Submissions are due by 17 September 2020.


10.  FSANZ calls for submissions on Application A1180 – Natural glycolipids as a preservative in non-alcoholic beverages

On 6 August 2020 FSANZ called for submission from industry with respect to Application A1186 by LANXESS Deutschland GmbH to permit the use of long-chain glycolipids from Dacryopinax spathularia (“Natural Glycolipids") as a preservative in non-alcoholic beverages.

FSANZ CEO Mark Booth said “Extracts from the mushroom (known as jelly mushroom glycolipids) are used to protect food from common yeasts, moulds and bacteria that may grow over time. We carried out a safety assessment and found it is safe.”

Submissions are due by 17 September 2020.


11.  FSANZ calls for submissions on Application A1198 – Food derived from enhanced yield & herbicide-tolerant corn line DP202216

On 6 August 2020 FSANZ called for submission from industry with respect to Application A1186 by Dow AgroSciences Australia Pty Ltd to permit the use of corn (maize) line DP202216 as a new food produced using gene technology.

FSANZ CEO Mark Booth said “FSANZ undertook a comprehensive safety assessment which looked at the intended and unintended changes to the food, including potential toxicity and allergenicity of any new proteins. We found that corn derived from this GM line is as safe as traditional non-GM corn.”

Submissions are due by 17 September 2020.


Australian Competition and Consumer Commission (ACCC) news

12.  ACCC announces inquiry into perishable agricultural supply chains

On 26 August 2020 the ACCC commenced a three-month inquiry into bargaining power in Australian perishable agricultural product supply chains.

According to the ACCC, the inquiry will focus on trading practices throughout these supply chains, including imbalances in bargaining power between farmers, processors and retailers.

The review into perishable agricultural markets comes after the ACCC introduced the Dairy Code of Conduct, which took effect on 1 January 2020 and was made in response to imbalances within dairy supply chains.


13.  ACCC extends authorisation for supermarket cooperation during COVID-19

The ACCC announced on 3 September 2020 that it had extended its authorisation for supermarkets to cooperate during the COVID-19 pandemic.

The authorisation permits supermarkets to coordinate with each other when working with manufacturers, suppliers and transport and logistics providers. The coordination must arise from discussions and agreements made at meetings convened by government agencies.

The ACCC authorisation applies until 31 March 2021.


14.  ACCC authorises Victorian chicken supply cooperation

On 10 August 2020 the ACCC provided interim authorisation with respect to the cooperation of chicken processors in Victoria.

The authorisation was made in response to a request by Ingham’s Group and allows the businesses to temporarily cooperate on matters relating to their plants to reduce the extent of job losses and help ensure constant supply. The ACCC provided the example of businesses being able to coordinate the use of processing capacity, essential staff, facilities and products. The authorisation does not extend to any coordination with respect to any contractual obligations the business have with chicken growers or any agreements about the price of goods or services supplied.

The interim authorisation will apply until it is revoked by the ACCC or until the ACCC provides a final determination.


15.  ACCC does not oppose potato business acquisition

On 6 August 2020 the ACCC announced that it would not oppose the proposed acquisition of Thomas Foods International’s potato business by Mitolo.

Both Mitolo and Thomas Foods International grow potatoes and operate packing sheds in South Australia. The ACCC concluded that the acquisition would not detrimentally impact competition, stating that consultations with potato growers in the region found that most growers would be able to switch to rival packing sheds or else swap to growing potatoes for other uses.


Other Australian food regulatory issues

16.  Parliamentary Inquiry criticises food enforcement by regulator

A Victorian State Parliamentary Inquiry tabled on 4 August 2020 found that the City of Greater Dandenong did not act properly in its closure of catering business I Cook Foods.

The City of Greater Dandenong issued I Cook Foods with a closure order in 2019, during attempts to find the source of an alleged listeriosis outbreak. As a result of the closure order, I Cook Foods lost contracts, had to stand down employees and eventually went out of business.

The Inquiry found that although the closure order was issued validly, “there were significant shortcomings in the manner in which I Cook Foods was dealt with by food safety regulators.” In particular, the Parliamentary Inquiry criticised the Victorian Department of Health and Human Services (DHHS) for lacking a suitable framework to address the closure of a catering business that supplies contaminated food to an aged care residential facility.

[FoodLegal notes: the FoodLegal Bulletin April 2019 article Should the law make faster food safety testing technologies for listeria mandatory? addressed this case.]


17.  McDonald’s launches Federal Court action against Hungry Jacks in trade mark claim

In August 2020 fast food chain McDonald’s initiated proceedings in the Australian Federal Court against competing chain Hungry Jacks in relation to alleged trade mark infringements.

McDonald’s claims that Hungry Jacks’ use of burger names “Big Jack” and “Mega Jack” infringe its own rights in the “Big Mac” and “Mega Mac” names. Hungry Jacks received approval from the Australian Trade Marks Office with respect to the “Big Jack” trade mark in February 2020. McDonald’s is seeking an injunction preventing further use of the names by Hungry Jacks.

The Federal Court is yet to set a date for a hearing.


18.  TGA publishes therapeutic advertising framework review

On 10 August 2020 the Therapeutic Goods Administration (TGA) published the final report as part of the review process of Australia’s therapeutic good advertising framework.

The report makes 22 recommendations, all of which have been accepted by the Australian Federal Government. The recommendations include that the TGA remain as the single body responsible for regulating therapeutic goods advertisements, but that the TGA improve information sharing among its own personnel and with other regulators such as FSANZ. The report also recommends broader sanctions to deter misleading advertisements relating to therapeutic goods.


19.  Australian Department of Health publishes guidance on food contact materials

In August 2020 the Australian Federal Department of Health issued guidance on the categorisation of chemicals with an end use in food contact materials.

The guidance addresses how food contact material regulation interacts with Australian requirements regarding the use of industrial chemicals. The introduction of new chemicals in food contact may be exempted, reported or assessed depending on the nature of the chemical in question.


20.  Australian Department of Agriculture announces changes to surveillance food testing

The Australian Federal Department of Agriculture has announced that the following changes to surveillance food testing will apply from 7 September 2020:

·         Canned and preserved fruit will not be tested for lead

·         Canned food will not be tested for lead

·         Fresh and frozen vegetables will be subject to lead testing at a referral rate of 5%

Surveillance foods are those that do not pose a medium or high risk to health and face randomised inspections upon import.


21.  China anti-dumping investigation targets Australian wine

On 18 August 2020 the Chinese Trade Remedy and Investigation Bureau (TRIB) announced it was initiating a 12-month investigation into Australian wine.

According to TRIB, the investigation will examine whether Australian exporters flooded the Chinese market with below-market-price wine in order to crowd out Chinese producers. The Australian Federal Government and Australian winemakers say that Australian wine has not been dumped in China. The announcement comes amid growing trade tensions between Australia and China.


New Zealand nexus

22.  New Zealand dairy company removes claims after complaint

On 3 September 2020 Consumer New Zealand reported that Lewis Road Creamery had removed claims about bovine collagen following complaints made by Consumer New Zealand.

The claims appeared on the business’ website and, according to Consumer New Zealand, linked collagen with joint health.

[FoodLegal notes: the law on health claims for both Australia and New Zealand is governed by the bi-national Australia New Zealand Food Standards Code Standard 1.2.7.]


Other International food regulatory news

United States of America

23.  US Department of Agriculture publishes draft organic requirements

On 5 August 2020 the US Federal Department of Agriculture published proposed laws that would apply to products marketed as organic.

Under the proposed laws, more parties in the supply chain would have to obtain organic certification when making organic claims. This would require many USA companies with international supply chains to obtain import certificates. The laws would also increase inspection rates and reporting requirements.

The proposed laws are open for comment until 5 October 2020.


24.  Michigan imposes mandatory COVID-19 testing for agricultural and food processing workers

On 3 August 2020 the US State of Michigan imposed mandatory COVID-19 testing requirements for some food workers.

The Michigan Department of Health Order applies to meat, poultry and egg facilities with more than 20 workers on-site at a time. Such businesses are required to conduct an initial test of all employees, as well as an additional test of any employee that subsequently develops symptoms or is exposed to COVID-19.

Affected businesses were required to develop a testing plan by 10 August 2020 and implement ongoing testing by 24 August 2020.


25.  Californian court permits use of “butter” on plant based products

In an August 2020 ruling, the US District Court or the Northern District of California found that plant-based manufacturer Miyoko’s Kitchen could not be prohibited from using the term “butter” on its vegan products.

The ruling comes after Miyoko’s Kitchen took action against the California Department of Food and Agriculture in relation to orders to stop using the term “butter” on the grounds that it confused consumers. The Court found that, when used in conjunction with terms such as “vegan” and “made from plants”, consumers would not be confused about the use of “butter”.


United Kingdom

26.  UK FSA to review food safety and hygiene requirements

On 10 August 2020 the UK Food Standards Agency (FSA) called for submissions with respect to its review of the Food Safety and Hygiene (England) Regulations 2013.

The review is required under UK law and relates to the consolidation of numerous food safety requirements under a single piece of regulation. The FSA is also seeking comments on the effectiveness of the law in its current form.

Submissions were due by 4 September 2020.


27.  FSA announces amendments to retained EU food safety law

On 20 August 2020 the UK FSA announced amendments to its food and feed regulations.

The amendments aim to ensure that retained EU law relating to food and feed safety and hygiene remains effective at the end of the transition period upon the UK’s withdrawal from the EU. The FSA is seeking submissions with respect to the amendments.

Submissions are due by 16 September 2020.



28.  Japan bans use of “artificial” and “synthetic” additive descriptors

In August 2020 the Japanese Consumer Affairs Agency (CAA) banned the use of the terms “artificial” and “synthetic” when used to describe additives on labels.

According to the CAA, terms such as “artificial” and “synthetic” are not well understood by consumers, and consumers may avoid products containing such substances even where they are safe and approved for use in food. The CAA gave the example that under the new law, an additive labelled as “artificial sweetener” would be labelled simply as “sweetener”.

The new law is being introduced with a transition period. Japanese companies will have until 31 March 2022 to comply.



29.  China seeks submissions on draft food labelling laws

On 27 July 2020 the Chinese State Administration for Market Regulation (SAMR) announced draft new food labelling laws for comment.

Proposed changes arising from the laws include:

·         Extending the requirement that words on food labels contrast with the background to more product categories

·         Introducing stricter requirements relating to the format of date marks

·         Requiring product names to be more standardised and better reflect the composition of the product

·         Requiring additives to be listed by name (rather than just INS number)

Submissions closed on 26 August 2020.

This is general information rather than legal advice and is current as of 7 Sep 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.