Current developments in food law and policy in Australia and overseas (October 2020)
By Joe Lederman (FoodLegal Co-Principal)
and John Thisgaard (FoodLegal Senior Associate)
© Lawmedia Pty Ltd, October 2020
Food reform proposal
1. Submissions open on FSANZ Act Review scoping paper
On 5 October 2020 the Australian Federal Department of Health released a scoping paper on review of the Food Standards Australia New Zealand Act 1991 (FSANZ Act) for public comment.
The review of the FSANZ Act is part of a greater reform agenda on Australia and New Zealand’s food regulatory framework. It will include a comprehensive examination of the effectiveness of the FSANZ Act and the operations and responsibilities of FSANZ. We addressed the reform process in more detail in our September 2020 edition of FoodLegal Bulletin in the article “Australian Government initiates major food regulatory reform processes”.
The scoping paper is open to Australian and New Zealand stakeholders until 16 November 2020.
Food Standards Australia New Zealand (FSANZ) news
2. FSANZ announces Proposal P1051 – Code Revision (2020)
On 5 October 2020 FSANZ announced its Proposal P1051 to make minor amendments to the Food Standards Code, including the correction of typographical errors, formatting issues and updating of references.
FSANZ has stated that it will provide an opportunity to comment at a later date.
3. FSANZ approves Application A1155 – 2'-FL and LNnT in infant formula and other products
On 5 October 2020 FSANZ approved the amended Application A1155 to permit the voluntary use of 2’-O-fucosyllactose (2’-FL) alone or in combination with Lacto-N-neotetraose (LNnT), produced by microbial fermentation using genetically modified Escherichia coli (E.coli) strains, in infant formula products and formulated supplementary foods for young children.
FSANZ re-affirmed its approval after the Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum) requested a review of an initial proposal by FSANZ on 17 February 2020.
FSANZ has notified the Food Forum of its approval. The Food Forum has until 29 November 2020 to accept, amend or reject the approved standard.
4. FSANZ calls for submissions on Application A1202 – Food derived from herbicide-tolerant & insect-protected corn line DP23211
On 1 October 2020 FSANZ called for submissions from industry with respect to Application A1202 by Dow AgroSciences Australia Pty Ltd seeking to permit the sale and use of food derived from genetically modified (GM) corn line DP23211, which has tolerance to the herbicide glufosinate and is protected against corn rootworm insect pests.
FSANZ CEO Mark Booth said “We looked at key safety aspects including the process used to transfer the gene into the plant, potential unintended changes, the nutritional content compared to non-GM corn and any potential allergic or toxic effects in humans. Our assessment found no potential public health and safety concerns with this variety of corn. It is as safe and healthy as non-GM corn varieties.”
Submissions are due by 6pm 12 November 2020.
5. FSANZ accepts Application A1210 – Maltogenic alpha amylase enzyme from GM Saccharomyces cerevisiae:
FSANZ announced on 25 September 2020 that it had accepted Application 1210 by Lallemand Baking Solutions to permit a new source microorganism, being a genetically modified Saccharomyces cerevisiae, for the permitted enzyme, maltogenic alpha amylase.
FSANZ has stated that it will provide an opportunity to comment at a later date.
6. FSANZ approves Food Standards Code amendments
On 25 September 2020 FSANZ announced that it had approved amendments to the Food Standards Code arising from the following Applications:
· Application A1192 – Food derived from herbicide-tolerant corn line MON87429
· Application A1194 – Glucoamylase from GM Trichoderma reesei as a PA (enzyme)
· Application A1195 – Alpha-amylase from GM Trichoderma reesei as a PA (enzyme)
· Application A1196 – Food derived from nematode-protected and herbicide-tolerant soybean line GMB151
· Application A1199 – Food derived from Innate potato lines V11 & Z6
FSANZ has notified the Food Forum of its approval. The Food Forum has until 24 November 2020 to 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
7. ACCC appeal against Woolworths “compostable” claims case dismissed
On 29 September 2020 the Full Federal Court of Australia dismissed an appeal brought by the ACCC against the Federal Court’s judgment in favour of Woolworths.
The ACCC had alleged that labels on Woolworths’ “Select eco” range of disposable plates, bowls and cutlery marketing the products as “biodegradable and compostable” represented to consumers that the products would biodegrade or compost within a “reasonable period” of time after disposal.
In dismissing the appeal, the Full Federal Court agreed with the earlier Federal Court decision that the claim “biodegradable and compostable” did not make any representation as to a time limit.
8. ACCC receives international recognition for work on Australian Dairy Code
On 22 September 2020 the International Competition Network and World Bank Group recognised the ACCC for its work on the Australian Dairy Industry Code of Conduct (Dairy Code).
The ACCC conducted an inquiry into competition within the dairy industry, which it completed in April 2018. Upon identifying issues regarding the availability of information and unequal bargaining power between farmers and processors, the ACCC recommended that a mandatory dairy code of conduct be implemented. The Dairy Code came into effect on 1 January 2020.
9. ACCC proposes to exempt two Viterra port terminals from the Wheat Port Code
On 6 October 2020 the ACCC released draft determinations proposing to grant grain handler Viterra exemptions from Parts 3 to 6 of the Port Terminal Access (Bulk Wheat) Code.
The exemptions would apply to Viterra’s services at the Port Adelaide Inner Harbour and Outer Harbour port terminals in respect of non-discrimination requirements, dispute resolution processes, ACCC approval of capacity allocation systems and the publication of certain information about expected or current capacity of bulk grain stocks. It will still have to deal with exporters in good faith, publish a port loading statement and loading procedures, and make standard terms and reference prices available.
ACCC Deputy Chair Mick Keogh said “Although Viterra is the dominant port service provider for South Australia’s bulk grain export market, we’ve formed the preliminary view that an increase in competition justifies a reduction in regulation” for these two facilities. The ACCC denied exemptions for Viterra’s four other South Australian port terminals, as these terminals did not face “sufficient competition”.
Submissions on the draft determinations can be made until 3 November 2020.
Other Australian food regulatory issues
10. Western Australia’s container deposit scheme comes into effect
On 1 October 2020 Western Australia’s container deposit scheme commenced under the ‘Containers for Change’ banner.
The scheme provides consumers with a 10 cent refund for each returned container. Food businesses operating in Western Australia will have to comply with the Waste Avoidance and Resource Recovery Amendment (Container Deposit) Act 2019 if they sell or manufacture eligible containers in Western Australia. This may require them to have certain arrangements in place and comply with refund mark labelling requirements.
There will be a 24-month transition period for labelling and sale requirements.
11. TGA declares certain formulated supplementary sports foods to be medicines
On 24 September 2020 the Therapeutic Goods Administration (TGA) issued an order (TGA Order) that will deem relevant “sports supplement” products to be therapeutic goods.
The final order issued by the TGA incorporates some amendments arising from the consultation process undertaken in late 2019. Factors influencing whether the TGA Order will apply to the product include product composition, product claims and product format.
We discuss the implications of the TGA Order on food manufacturers in this October 2020 edition of FoodLegal Bulletin.
12. Advertising industry body publishes new Code of Ethics
In September 2020 the Australian Association of National Advertisers (AANA) published a new version of its Code of Ethics.
The AANA Code of Ethics applies to advertising by AANA signatories. The AANA Code of Ethics is implemented by Ad Standards Australia, another industry-based body, in reviewing advertisements against consumer complaints. Although the AANA Code of Ethics is not legally binding, most media companies only run advertisements that meet AANA requirements.
The new AANA Code of Ethics will apply from 1 February 2021.
13. Australian Department of Agriculture announces changes to some import requirements
On 18 September 2020 the Australian Federal Department of Agriculture announced amendments to the Imported Food Control Order 2019 to change the way some imported foods are inspected and tested.
The amendments reclassify the status of some imports as “risk foods” and change the tests that will need to be applied for particular products. These changes will be made later in 2020, with no specific date set as at October 2020.
Some imported foods will be required to be the subject of a Food Safety Management Certificate or a recognised foreign government certificate for importation.
These requirements will take effect 24 months after the date of amendment of the Imported Food Control Order 2019.
14. Allergen warning requirements for therapeutic good advertisements come into effect
On 1 September 2020 parts of the Therapeutic Goods Advertising Code (No.2) 2018 came into effect requiring allergen declarations in advertisements for therapeutic goods.
Under the provisions, therapeutic goods that contain the allergens specified in Part 4 of Schedule 1 of the Therapeutic Goods Advertising Code (No.2) 2018 are subject to a requirement to declare the presence of that allergen in any advertising about the product.
15. Department of Agriculture announces amendments to new export control laws
On 12 October 2020 the Australian Federal Department of Agriculture released the Exposure Draft Export Control Amendment (Miscellaneous Measures) Bill 2020.
This draft law makes minor amendments to the Export Control Act 2020 that is due to commence on 28 March 2020, as well as to various export control rules made under that legislation. According to the Department of Agriculture, the changes relate to the following elements:
· Fit and proper person test for variations of registrations and alterations of establishments
· Notices of intention (NOI) to export
· Requirements for export permits
· Review of decisions relating to tariff quota entitlements
· Incorporation of documents in export control rules
The Exposure Draft Export Control Amendment (Miscellaneous Measures) Bill 2020 is open for public comment until 26 October 2020.
International food regulatory news
16. Independent review of animal welfare assurances
On 11 September 2020 the New Zealand Ministry for Primary Industries (MPI) announced that it is undertaking an independent review of assurances that relate to the welfare of livestock transported by sea, following the loss of livestock carrier container ship Gulf Livestock 1.
Under New Zealand law, live animal exports require an Animal Welfare Export Certificate. An application for such a Certificate requires the applicant to provide an assurance regarding animal welfare. The MPI review will focus on “carriage by sea as a mode of transport, and susceptibility of livestock to harm and distress on the journey when exported by ship.”
The MPI has suspended cattle livestock exports for the duration of the review.
17. Animal Products Notice: Raw Milk Product Specifications comes into force
On 10 September 2020 the New Zealand Animal Products Notice: Raw Milk Product Specifications commenced to amend the Animal Products (Raw Milk Products Specifications) Notice 2009.
The amendments prescribe manufacturing and verification requirements in relation to raw drinking milk products and apply to manufacturers of those products. The amendments do not apply to activities covered by the Raw Milk for Sale to Consumers Regulations 2015, which sets out requirements relating to premises, equipment, operation practices, animal care, milk quality and advertising in the sale of raw milk in New Zealand.
18. Minister of Fisheries finalises decisions on the review of sustainability measures
On 1 October 2020 the New Zealand Minister of Fisheries implemented the final decisions on changes to sustainability measures for selected fish stocks following public consultation.
The included decisions relate to Total Allowable Catches, non-commercial allowances, and Total Allowable Commercial Catches. The catch limits relate to 29 fishing stocks for the 2020/2021 October fishing year.
United States of America
19. FDA releases results of milk allergen testing in “dairy free” dark chocolate samples
On 1 October 2020 the US Food and Drug Administration (FDA) released the results of its milk allergen investigation which took place from July 2018 to October 2019. The FDA had collected 119 samples, representing 52 domestically manufactured dark chocolate products, and tested them for the presence of milk allergens. All products had claimed to be “dairy free”.
According to the FDA, four of the products contained potentially hazardous levels of milk allergens resulting in a recall. In a fifth product, the FDA detected a lower level of milk allergen in one of four tested samples. The FDA did not require a recall in this instance but requested that the manufacturer take “appropriate action”. In the US, “dairy free” and “milk free” claims are voluntary, but must be truthful and not misleading.
The FDA has indicated that it will continue to monitor the issue and will also test imported chocolate products for the presence of milk.
20. Court delivers first injunction for violating public safety standards under the Produce Safety Rule
On 15 September 2020 the US District Court for the Northern District of Illinois issued the first injunction under the Produce Safety Rule of the US federal Food Safety Modernization Act 2011. The Produce Safety Rule sets scientific standards for the growing, harvesting, packing and holding of fruits and vegetables for human consumption.
Fortune Food Product Inc., a processor of sprouts and soy products based in Illinois, agreed to stop production due to repeated violations of standards under the Produce Safety and Current Good Manufacturing Practice regulations. The FDA had conducted numerous inspections and documented the state of the facilities’ conditions and found that the sprouts and soy products may have been contaminated with filth or rendered injurious to health.
The injunction will be in place until Fortune Food Product Inc. takes remedial action and ensures compliance with the Federal Food, Drug and Cosmetic Act.
21. US Department of Agriculture and FDA collaborate on dairy exports
On 1 October 2020 the US Federal Department of Agriculture (USDA) and the FDA signed a Memorandum of Understanding agreeing to coordinate efforts and increase the efficiency and effectiveness of milk and milk product export regulation.
The FDA ensures that dairy products are safe and wholesome, and communicates with foreign regulators and stakeholders on the safety of US dairy products where necessary. The USDA uses its dairy grading service to issue dairy sanitary certificates, facilitates interagency collaboration on US dairy exports, and negotiates with international authorities for certifications that meet their importing requirements.
22. UK FSA announces consultation into shelf-life guidance for VP/MAP chilled foods
On 1 October 2020 the UK Food Standards Agency (FSA) launched a six-week consultation into its guidance on the safety and shelf-life of vacuum and modified atmosphere packed (VP/MAP) chilled beef, lamb and pork.
It will review the maximum shelf-life of VP/MAP chilled beef, lamb and pork currently advised by the guidance, which is 10 days unless suitable controls are in place to appropriately reduce associated risks. FSA will undertake the review and consider amendments with industry and other partners.
Submissions into the consultation will be accepted until 11 November 2020.
23. EFSA sets intake level for perfluoroalkyl substances in food
On 17 September 2020 the European Food Safety Authority (EFSA) published its tolerable weekly intake for perfluoroalkyl substances (PFAS) in food.
PFAS refers to a group of synthetic chemicals used in various industries that may be present in food indirectly. PFAS are most commonly found in drinking water, fish, fruit, eggs and egg products.
Upon examining scientific literature regarding PFAS, EFSA set a tolerable weekly intake of 4.4 nanograms per kg of bodyweight per week.
This is general information rather than legal advice and is current as of 12 Oct 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.