Current developments in food law and policy in Australia and internationally (September 2021)

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

© Lawmedia Pty Ltd, September 2021

Food Standards Australia New Zealand (FSANZ) news

1.     FSANZ publishes results of 26th Australian Total Diet Study

On 30 July 2021 FSANZ released the results of its latest Australian Total Diet Study (ATDS), undertaken during 2020.

The 26th ATDS focused on levels of persistent organic pollutants (POPs) and polychlorinated biphenyls (PCBs), which are chemicals that can be harmful if accumulated in the body fat of animals and humans. FSANZ concluded that dietary exposure to these chemicals is low in Australia and that current risk management measures are effective.


2.     FSANZ releases educational materials on highly concentrated caffeine powders

In August 2021 FSANZ uploaded an informational video warning Australian and New Zealand consumers of the dangers of purchasing and consuming highly concentrated caffeine powders.

The video is intended to strengthen awareness and enhance consumer safety, as pure and highly concentrated caffeine food products and powders are banned from retail sale in Australia and New Zealand.


3.     FSANZ calls for submissions on third infant formula consultation paper

On 8 September 2021 FSANZ issued a call for submissions from industry in relation to the third consultation paper issued under Proposal P1028 – Infant Formula Consultation.

The consultation paper focuses on the regulatory framework for special infant formulas or infant formula products for special dietary use within Standard 2.9.1 and Schedule 29 of the Australia New Zealand Food Standards Code (Food Standards Code).

Submissions are due by 6 October 2021.


4.     FSANZ gazettes amendments to Food Standards Code

On 26 August 2021 FSANZ gazetted amendments to the Food Standards Code arising from the following Application and Proposal:

·        Application A1210 – Maltogenic alpha-amylase enzyme from GM Saccharomyces cerevisiae​

·        Proposal M1018 – Maximum Residue Limits (2020)​​


5.     FSANZ accepts Application A1235 – Enzymatic production of rebaudioside I​

On 20 August 2021 FSANZ announced it had accepted Application A1235 by Sweegen Inc.

Sweegen Inc is seeking approval for a new specification for the steviol glycoside, rebaudioside I, produced by enzymatic bioconversion of stevia leaf extract. The bioconversion enzymes are derived from a genetically modified yeast strain, Pichia pastoris.

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


6.     FSANZ commences assessment of Application A1212 – Beta-fructofuranosidase enzyme from Aspergillus fijiensis

On 12 August 2021 FSANZ announced that it has commenced assessment of 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 provide an opportunity to comment at a later date.


7.     FSANZ commences assessment of Application A1230 – Very Low Energy Diet Products

On 12 August 2021 FSANZ announced that it has commenced assessment of Application A1230 to amend the Food Standards Code to include food suited for Very Low Energy Diets (VLEDs) in foods for special medical purpose (FSMPs).

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


8.     FSANZ approves Application A1214 – Nicotinamide riboside chloride as Vitamin B3 in FSMP

On 12 August 2021 FSANZ approved an amendment to the Food Standards Code arising from Application A1214 to permit the use of nicotinamide riboside chloride as a permitted form of Vitamin B3 in FSMPs.

FSANZ has notified the Food Ministers’ Meeting (formerly the Australia and New Zealand Ministerial Forum on Food Regulation) of its approval. The Food Ministers’ Meeting has until 11 October 2021 to either request a review of the FSANZ approval, or inform FSANZ that it does not intend to request a review.


9.     FSANZ approves Application A1218 – β Galactosidase from Bacillus subtilis (enzyme)

On 12 August 2021 FSANZ approved an amendment to the Food Standards Code arising from Application A1218 approving a “β-Galactosidase (EC” enzyme derived from a genetically modified organism for use as processing aid in dairy food applications.

FSANZ has notified the Food Ministers’ Meeting of its approval. The Food Ministers’ Meeting has until 11 October 2021 to either request a review of the FSANZ approval, or inform FSANZ that it does not intend to request a review.


10.  FSANZ extends deadline of call for submissions on second infant formula consultation paper

On 9 August 2021 FSANZ extended the deadline of its call for submissions from industry in relation to its second consultation paper issued under Proposal P1028 – Infant formula.

The consultation paper focuses on nutrient composition for macronutrients and energy, vitamins and minerals, permitted forms and other nutritive substances as they relate to infant formula products.

Submissions were due by 2 September 2021.


11.  FSANZ accepts Application A1231 – Maltogenic alpha-amylase from GM Escherichia coli as a processing aid (enzyme)

On 3 August 2021 FSANZ announced that it had accepted Application A1231 by Advanced Enzyme Technologies Ltd to approve the use of maltogenic alpha amylase, sourced from GM Escherichia coli, as a processing aid in baking, brewing and starch processing.

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


12.  FSANZ accepts Application A1232 – Food derived from genetically modified drought-tolerant wheat line

On 3 August 2021 FSANZ announced that it had accepted Application A1232 by Trigall Genetics to seek approval for food derived from wheat line IND-00412-7, genetically modified for drought-tolerance.

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


13.  FSANZ accepts Application A1233 – 2′-FL from new GM source for infant formula

On 3 August 2021 FSANZ announced that it had accepted Application A1231 by FrieslandCampina Ingredients to permit 2′-fucosyllactose (2′-FL), produced by genetically modified Escherichia coli K-12, in infant formula products.

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


14.  FSANZ prepares Proposal M1020 – Maximum Residue Limits (2021)

On 3 August 2021 FSANZ announced that it has completed an administrative assessment and made a decision to prepare Proposal M1020, to consider varying certain maximum residue limits (MRLs) for residues of specified agricultural and veterinary chemicals that may occur in food commodities.

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


Australian Competition and Consumer Commission (ACCC) news

15.  ACCC reports increase in contacts by small businesses

On 20 August 2021 the ACCC released its Small Business in Focus report, highlighting its work in the small business, franchising and agriculture sectors from January to June 2021.

The ACCC found it received over 3,500 contacts from small businesses, the highest number received in the last two years. Approximately one quarter of contacts concerned legal rights when dealing with other businesses and responsibilities to consumers surrounding online business activity.

Deputy Chair Mick Keogh noted that the ACCC has developed new guidance for businesses operating online in response to the COVID-19 restrictions.


16.  Federal Court imposes $1.5 million penalty for failure to comply with safety standards

On 17 August 2021 the Federal Court found that Decathlon (Australia) Pty Ltd (Decathlon) had sold various sporting goods that did not comply with applicable mandatory safety standards in breach of the Australian Consumer Law (ACL).

Decathlon had sold basketball rings, backboards and swimming pools that failed to include the requisite safety labelling, consumer warnings, or installation and use instructions.

The Court ordered Decathlon to publish a corrective notice on its website, implement an ACL compliance program, pay the ACCC’s costs, and imposed a $1.5 million penalty.


Other Australian food regulatory issues

17.  High Court finds media outlets to be “publishers” of Facebook comments made by third parties

On 8 September 2021 the High Court of Australia released its decision on Dylan Voller’s defamation case, finding that the news outlets that posted articles on their respective Facebook pages were “publishers” of allegedly defamatory comments made by third parties.

The Court held that an intention to communicate defamatory matter was not necessary. The fact the media groups had signed up to run Facebook pages, posted material and encouraged third parties to engage with that material, was sufficient.

This has wide-reaching consequences, as individuals and community groups with Facebook pages may be held liable for defamation in Australia even if they are unaware of the comments made.


18.  Ad Standards Community Panel finds KFC advertisement likely to mislead

On 11 August 2021 the Ad Standards Community Panel (the Panel) ruled on an advertisement promoting KFC’s “July feast” as having free delivery when ordered through the KFC app.

In fact, the delivery price for the product was $3.00 more than pick-up. The advertiser argued it is standard practice across the quick service and takeaway/delivery food sectors to use higher menu pricing for delivery than pick-up (regardless of delivery fees), and that such pricing methods are expected by consumers in this sector.

However, the Panel considered that the target audience would also include people who are not familiar with KFC’s pricing strategies. A reasonable consumer would interpret the advertisement to mean there is no difference in costs for delivery and pick-up. As this was not the case, the advertisement was likely to mislead consumers and breached Section 2.1 of the Australian Association of National Advertisers (AANA) Food Code.


19.  CSIRO publishes a roadmap for the strategic growth of an edible insect industry in Australia

In April 2021 the Commonwealth Scientific and Industrial Research Organisation (CSIRO) published a report titled Edible insects: A roadmap for the strategic growth of an emerging Australian industry.

In its report, the CSIRO identified a number of challenges and opportunities for the growth of the edible insect industry in the Australian market. It also provided a framework for First Nations initiatives, start-ups, insect businesses, researchers, policy-makers, and interested members of the general public to enable strategic growth.


20.  Australian Department of Health opens public consultation on proposed amendments to AICIS

The Australian Industrial Chemicals Introduction Scheme (AICIS) replaced the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) on 1 July 2021. It regulates the importation and manufacture of chemicals with an industrial use into Australia.

On 23 August 2021 the Australian Government Department of Health opened a consultation on proposed amendments to the Industrial Chemicals (General Rules) 2019 and the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019. The amendments relate to a number of minor operational issues that have been identified within AICIS’ first year of operation.

Submissions are due by 17 September 2021.


21.  TGA updates permitted ingredients for listed medicines

On 20 August 2021 the Therapeutic Goods Administration (TGA) published an update to the list of ingredients that are permitted for use in listed medicines in Australia.

The updated list is contained in the Therapeutic Goods (Permissible Ingredients) Determination (No. 2) 2021 and implements changes to 61 ingredients.

The TGA is also currently seeking views on its annual proposed low-negligible risk changes to the list of permitted ingredients for 2021-22. The changes concern allergen statements for mollusc-derived ingredients, peripheral neuropathy associated with lower dose vitamin B6, risk to infants from nasal use of benzalkonium chloride, and artemisinin and pregnancy risk.

Submissions are due by 29 September 2021.


22.  Wine industry grants available

On 1 July 2021 Wine Australia (an Australian Federal Government statutory authority) opened applications for its Wine Tourism and Cellar Door Grant.

The grant is intended to support wine or cider producers who add value by attracting visitors to wine regions, and thereby encourage wine tourism. Applicants who meet the relevant eligibility criteria may apply for a grant worth up to 29 percent of the notional wholesale selling price of their eligible rebatable domestic cellar door sales (up to a maximum of $100,000 excluding GST).

Applications are due by 30 September 2021.


International food regulatory news

New Zealand

23.  MPI invites comments on proposed amendment to import health standard

On 23 August 2021 the New Zealand Ministry for Primary Industries (MPI) opened a public consultation seeking feedback on its proposed change to the import health standard for importing grains and seeds for consumption, feed, or processing.

The MPI is proposing to remove import permits, which are currently required for the importation of specific grain or seeds for processing. It is of the view that import permits are not necessary as it duplicates the check done by Border Clearance staff when consignments arrive at the border.

Submissions are due by 1 October 2021.


24.  MPI seeks feedback on wine requirements for New Zealand

On 6 August 2021 the New Zealand MPI announced it is seeking submissions from industry with respect to three Draft Wine Notices that would amend the requirements for manufacturing and selling wine in New Zealand.

The Draft Wine Notices are comprised of:

·        Good Operating Practice, which includes requirements for clean water testing commodity supply and the process of winemaking

·        Requirements for Recognised Agencies and Persons, which relate to the evaluation and verification of wine products

·        Export Requirements and Exemptions which sets standards for wines exported from New Zealand

Submissions are due by 20 September 2021.


25.  Royal jelly supplements found to mislead consumers on the origin of ingredients

On 4 August 2021 the Christchurch District Court found that the New Zealand Health Food Company Ltd (NZHFC) had misled consumers about the origin of its royal jelly supplements.

Labelling and marketing gave the impression that the product was from New Zealand, when in fact most ingredients were sourced from China and other overseas countries. Representations on the product labelling, the company’s website, social media and email newsletters included statements such as “100% New Zealand”. The product packaging also contained imagery of a kiwi silhouette and New Zealand map. NZHFC was fined $377,000.


United States of America

26.  Labelling changes for some gluten-free products take effect

On 13 August 2021 a final rule on “gluten-free” labelling for fermented and hydrolysed foods came into effect.

The rule was developed by the US Food and Drug Administration (FDA) and applies to foods that are fermented or hydrolysed, or contain fermented or hydrolysed ingredients such as yoghurt, cheese, vinegar, beer and wine. The rule sets out substantiation methods that such products must meet in order to make a “gluten-free” claim. Manufacturers or sellers of such products may either rely on analytical testing or rely on records kept by the manufacturer.


27.  FDA reminds producers of crops affected by floods of resources for assessing food safety

On 27 August 2021 the US Food and Drug Administration (FDA) issued a reminder to animal food producers in the Gulf Coast who may be affected by the Tropical Storm Ida.

The FDA’s Guidance for Industry: Evaluating the Safety of Flood-affected Food Crops for Human Consumption is intended to assist farmers and growers who produce and market crops that may have been affected by flooding. Growers are responsible for ensuring the safety of crops where there is a risk of contamination by storm or flood waters.


United Kingdom

28.  UK announces plans to ban shark fin trade

On 15 August 2021 the UK Department for Environment, Food and Rural Affairs announced a ban on the import and export of detached shark fins.

The ban will also extend to any products containing shark fins, such as tinned shark fin soup. The intention is to promote shark conservation in light of unsustainable fishing practices that have placed significant population pressures on many species of shark.

The UK Government has not announced when the ban will take effect.



29.  Canadian food industry publish new standard for advertising to children

In August 2021 the Association of Canadian Advertisers, the Canadian Beverage Association, Food, Health & Consumer Products of Canada and Restaurants Canada jointly published new advertising standards for food and beverage products marketed to children.

The new standard restricts the advertisement of foods and beverages to children aged under 13 based on a set nutritional criteria. Under the nutritional criteria, a food will be penalised if it is high in saturated fat, sodium or sugar.


This is general information rather than legal advice and is current as of 13 Sep 2021. 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.