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

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

© Lawmedia Pty Ltd, November 2020

Food Standards Australia New Zealand (FSANZ) news

1.    FSANZ accepts Application A1212 – Beta-fructofuranosidase enzyme from Aspergilus figiensis

On 5 November 2020 FSANZ announced that it had accepted Application A1212 by Meiji Food Materia Co., Ltd. to permit a new source microorganism, Aspergillus Fijiensis, being an updated name of Aspergillus niger, for the permitted enzyme beta-fructofuranosidase.​

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


2.    FSANZ calls for submissions on Application A1193 – Irradiation as phytosanitary measure for all fresh fruit and vegetables

On 30 October 2020 FSANZ called for submissions from industry with respect to Application A1193 by the Queensland Department of Agriculture and Fisheries to approve the use of irradiation as phytosanitary measure for all types of fruit and vegetables.

FSANZ CEO Mark Booth said “Irradiation has a long history of safe use and is used in many countries around the world as a safe way to treat fresh fruits and vegetables… Only a small proportion of fresh fruit and vegetables are likely to be irradiated as the majority of fresh produce in Australia and New Zealand is grown and sold in the same quarantine jurisdiction.”

Submissions are due by 11 December 2020.


3.    FSANZ calls for submissions on Proposal P1051 – Code revision (2020)

FSANZ called for submissions on 30 October 2020 with respect to its proposal to make minor amendments to the Food Standards Code including the correction of typographical errors and formatting issues and updating of references.

Submissions are due by 27 November 2020.


4.    FSANZ releases 2019-2020 annual report

On 27 October 2020 FSANZ released its annual report for 2019-2020.

According to its annual report, FSANZ completed 22 Applications and Proposals to amend the Australia New Zealand Food Standards Code (Food Standards Code), coordinated 99 food recalls and commissioned the analysis of 44 foods for the purposes of strengthening compositional databanks during 2019-2020.


5.    FSANZ calls for submissions on Application A1204 - Beta-amylase from soybean as a processing aid

On 27 October 2020 FSANZ called for submissions from industry with respect to Application A1204 by Danisco New Zealand Ltd to permit the use of beta-amylase sourced from soybean (Glycine max) as a processing aid (enzyme) in starch processing for maltose syrup production.

FSANZ CEO Mark Booth said  “If approved, the processing aid will be used in the production of maltose syrup (a type of sweetener that is added to food). After undertaking a risk assessment, we found no safety concerns from using this new source of beta-amylase which has a long history of safe use.”

Submissions are due by 8 December 2020.


6.    FSANZ calls for submissions on Application A1207 – Rebaudioside M as a Steviol Glycoside from Saccharomyces cerevisiae

On 21 October 2020 FSANZ called for submissions from industry with respect to Application A1207 by Amyris Inc  to allow an existing sweetener (steviol glycoside) from a new source.

Acting FSANZ CEO Dr Sandra Cuthbert said “Steviol glycosides are a type of intense sweetener sourced from the South American plant Stevia rebaudiana Bertoni (stevia), but can also be produced by different methods. FSANZ has conducted a thorough safety assessment and found no public health or safety concerns with this type of steviol glycoside."

Submissions are due by 2 December 2020.


7.    FSANZ accepts Application A1211- Maltogenic alpha aylase enzyme from GM Bacillus licheniformis

On 21 October 2020 FSANZ accepted Application A1211 by Danisco New Zealand Ltd to permit a new source microorganism, being a genetically modified Bacillus licheniformis, for the permitted enzyme, maltogenic alpha amylase.​

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


Australian Competition and Consumer Commission (ACCC) news

8.    ACCC permits origin relabelling for frozen fish

On 9 November 2020 the ACCC announced that Simplot Australia Pty Ltd had relabelled the origin statement for some of its frozen fish products from “Made in Australia” to “Packed in Australia”.

The products in question had been imported from overseas before being sliced, crumbed, par-fried and frozen in Australia. According to the ACCC, these combined processes were not enough to “substantially transform” the imported fish in Australia. As such, the ACCC argued that the products were not eligible to claim that they had been made in Australia.

The ACCC stated that it decided to permit Simplot to amend its labels without taking formal enforcement action.


9.    Dairy processor penalised under Dairy Code of Conduct

On 21 October 2020 the ACCC announced that Union Dairy Company had paid a penalty of $10,500 for an alleged breach of the Dairy Industry Code of Conduct (Dairy Code).

Under the Dairy Code, dairy processors must publish their standard form supply agreements on their website. According to the ACCC, Union Dairy Company required farmers to disclose information about herd size and their current processor before they were able to access the supply agreement.

ACCC Deputy Chair Mick Keogh said “In failing to properly publish its agreements by the time required by the Dairy Code, UDC may have made it more difficult for farmers to quickly access key information and identify the best supply agreement and milk processor for their circumstances.”


10.  ACCC exemption to allow small businesses to collectively bargain

On 22 October 2020 the ACCC announced it will implement a class exemption allowing small businesses to collectively bargain under the Competition and Consumer Act.

Currently, the Competition and Consumer Act prohibits competitors from acting together unless they are subject to a class exemption, or otherwise obtain authorisation or notification from the ACCC. Under the amendment, small businesses, franchisees and fuel retailers will be able to collectively negotiate with their suppliers and processors, franchisor or fuel wholesaler respectively, without first having to seek ACCC approval.

The exemption will apply to:

  • businesses with an aggregated turnover of less than $10 million in the preceding financial year to collectively bargain with customers or suppliers, and 
  • franchisees and fuel retailers to collectively bargain with their franchisor or fuel wholesaler (respectively) regardless of their size


Other Australian food regulatory issues

11.  Department of Agriculture seeks submissions on US apple imports

On 23 October 2020 the Australian Federal Department of Agriculture, Water and the Environment issued a draft report for the importation of fresh applies from the Pacific Northwest states of the US.

The Australian Department of Agriculture prepared the draft report following a proposal by the US for market access to Australia for commercially-produced fresh apples. The Department of Agriculture is now seeking submissions on the report, including whether the importation of US apples should be permitted.

Submissions are due by 21 January 2021.


12.  Ad Standards dismisses

On 7 October 2020 Ad Standards reviewed an advertisement by Aldi Australia depicting a child who throws a stone at a flock of flying bananas, causing one of the bananas to fall out of the air.

The complainant alleged that the advertisement depicted violence against animals in breach of Clause 2.3 of the Code of Ethics. Ad Standards considered that the advertisement was “highly stylised and fantastical” and that it quickly became clear that the flying objects were bananas rather than birds. Ad Standards also found that viewers would understand that the child was attempting to catch food rather than to harm an animal, and that the advertisement did not depict the stone hitting the banana. As such, Ad Standards found that there was no breach and dismissed the complaint.

We discuss the introduction of the new Code of Ethics in detail in this November 2020 edition of FoodLegal Bulletin.


13.  Australian food exporters to potentially face new Chinese tariffs

On 5 November 2020 various Australian food producers reported that China was seeking to limit the importation of a number of product categories from Australia.

The reports referred to a ban on Australian wine, coal, barley, copper ore and concentrate, sugar, timber, wine and lobster. As at the date of this letter, the Australian Federal Government is seeking clarification with respect to any restrictions.

Australian wine producers have also reported that the Chinese Ministry of Commerce is considering a request to make Australian wines subject to retrospective tariffs. The request was made as part of an ongoing investigation in China into allegations that Australian wines had been “dumped” in China below cost.

The Australian Federal Government is reported to be assessing whether to proceed with an action at the World Trade Organisation in relation to import restrictions in China on Australian barley.


International food regulatory news

United States

14.  FDA accepting submissions on alternative sweetener labelling

On 19 October 2020 the US Food and Drug Administration (FDA) announced it was seeking submissions in relation to nutrition labelling requirements for sweeteners which are metabolised differently to sugar.

According to the FDA, it is seeking submissions to determine which substances should be included under “added sugar” on US food nutrition labels. The FDA referenced concerns that current regulatory definitions regarding sugar might not facilitate reformulation in a way that meets consumer expectations.

Stakeholders have 60 days to make a submission.


15.  Class action lawsuit claims that “lightly sweetened” iced tea is misleading

During October 2020 a class action was filed in a Pennsylvania Federal Court against Healthy Beverage Co, claiming that its iced tea product labels are misleading.

The labels state that the beverage is “lightly sweetened”. The plaintiffs allege that the beverage actually contains 20 g added sugar per bottle, which should not be considered “lightly sweetened”. The plaintiffs also claim that the term “lightly sweetened” is synonymous with “low sugar”, the use of which is restricted by the US FDA.


United Kingdom

16.  UK FSA accepts Hospital Food Review

On 26 October 2020 the UK Food Standards Agency (FSA) announced the outcome of the Hospital Food Review.

The Hospital Food Review was announced following a listeriosis outbreak in 2019 and recommends a number of measures to improve food safety in UK hospitals. The recommendations include a greater recognition by hospital providers that they are operating as food businesses. The Hospital Food Review also recommends that hospitals implement robust food safety management systems, employ dedicated food specialists and report any concerns across the entire hospital food chain.


17.  FSA seeks submissions on food contact material amendments

On 4 November 2020 the UK FSA called for submissions in relation to proposed amendments to the Materials and Articles in Contact with Food (England) (Amendment) Regulations 2020.

The proposed amendments will replace previous regulations made in 2018. The new amendments seek to change the criminal penalties that apply to some food contact safety offences. In particular, the maximum penalty for a number of offences will be reduced from imprisonment to a fine.

Submissions are due by 18 November 2020.


18.  Submissions sought on Northern Ireland food safety amendments

On 16 October 2020 the FSA issued a call for submissions with respect to amendments to the Northern Ireland Hygiene Rating Act.

The amendments are designed to incorporate relevant parts of EU Regulation 2017/625 in to Northern Ireland law to allow the FSA to issue statutory food hygiene ratings to Northern Ireland food businesses.

Submissions were due by 30 October 2020.


European Union

19.  European Parliament rejects restrictions for meat descriptors

On 23 October 2020 the European Parliament voted against a proposed law that would ban plant-based products from using meat descriptors such as “sausage” or “burger”.

Proponents of the amendment argued that the laws were necessary to prevent consumers from being misled. However, the majority of the European Parliament voted against the proposal.

In a separate vote, the European Parliament also agreed to prohibit the use of terms such as “milk-like” or “cheese-style” in relation to dairy analogues.


20.  European Court of Justice finds that insects are not novel foods

During October 2020, the European Court of Justice issued a rule that whole insects do not amount to novel foods under European laws.

The Court considered the application of European Regulation 258/97, which requires novel foods to receive pre-market regulatory approval prior to sale. However, this regulation was replaced on 1 January 2018 by European Regulation 2285/2015, which specifically provides that insects are subject to the same pre-market approval as novel foods.

The effect of the Court ruling is that whole insect products that were commercialised prior to 1 January 2018 in the EU were not in breach of any law at that time.


21.  EFSA assesses welfare conditions of cattle for slaughter

On 3 November 2020 the European Food Safety Authority (EFSA) released its assessment of the welfare of cattle at slaughter.

The EFSA assessment identified 40 welfare hazards that could occur during slaughter. 39 of these hazards arise from potential human error or fatigue among abattoir staff. The assessment recommends implementation of a standard operating procedure for abattoirs which identifies hazards and related welfare consequences using relevant animal-based measures.

EFSA has previously published similar assessments dealing with the welfare of poultry, rabbits and pigs.

This is general information rather than legal advice and is current as of 9 Nov 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.