Current developments in food law and policy in Australia and internationally (May 2022)

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

© Lawmedia Pty Ltd, May 2022

Food Standards Australia New Zealand (FSANZ) news

1.     FSANZ prepares Proposal P1059 – Energy labelling on alcoholic beverages

On 2 May 2022 FSANZ announced that it had prepared Proposal P1059 to prescribe energy (kilojoule) labelling information on labels for alcoholic beverages.

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

 

2.     FSANZ Prepares Proposal P1058 – Nutrition labelling about added sugars

On 27 April 2022 FSANZ announced that that it had prepared Proposal P1058 to consider including added sugars in the nutrition information panel for packaged foods.

We addressed some important implications that could arise from a requirement to declare added sugars on-pack in our March 2022 edition of FoodLegal Bulletin.

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

 

3.     FSANZ accepts Application A1250 - Pullulanase from Bacillus subtilis

On 27 April 2022 FSANZ acceoted Application A1250 by Novozymes to permit pullulanase sourced from a genetically modified strain of Bacillus subtilis as a processing aid in starch processing for the production of glucose syrups and other starch hydrolysates.

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

 

4.     FSANZ calls for submissions on Application A1238 - Serine endopeptidase enzyme from GM Trichoderma reesei

On 27 April 2022 FSANZ called for submissions from industry in relation to Application A1238 by AB Enzymes GmbH to allow a new processing aid from thermomycolin, a protease enzyme sourced from a GM strain of the organism Trichoderma reesei.

Submissions are due by 9 June 2022.

 

5.     Food Standards Code updated to permit use of specified strain of GM corn

On 27 April 2022 FSANZ published Amendment 207 to the Australian New Zealand Food Standards Code (Food Standards Code).

The amendment incorporates changes from Application A1226 – Food derived from insect-protected corn line MON95379​.

 

Australian Competition and Consumer Commission (ACCC) news

6.     ACCC outlines concerns for online retail marketplaces

On 28 April 2022 the ACCC released its fourth report in its Digital Platform Services Inquiry. The report examined whether online marketplaces are promoting fair and competitive markets for consumers and sellers.

The ACCC identified concerns such as the use of algorithms to decide how products are ranked and displayed, the collection and use of consumer data, inadequate dispute resolution processes and a need for more consumer protections. The ACCC also expressed concern with ‘hybrid marketplaces’, where the marketplace operator sells its own products in competition with those from third-party sellers.

The ACCC stated that it is considering whether Australia needs a new regulatory framework to address competition and consumer concerns with digital platform services more broadly.

 

Other Australian food regulatory issues

7.     Potential amendments to Standard 1.4.2 – Maximum Residue Limits (MRLs)

On 2 May 2022 FSANZ announced that it had been notified by the Australian Pesticides and Veterinary Medicines Authority (APVMA) of applications or variations to the APVMA Maximum Reside Limits Standard.

If these applications or variations are granted, APVMA considers it likely that Schedule 20 of Standard 1.4.2 will need to be amended.

 

8.     Updates to permissible ingredients for listed medicines

On 6 April 2022 the Therapeutic Goods Administration (TGA) announced changes to the list of ingredients that may be added to listed medicines.

Beeswax alcohols and glyceryl mono and dicaprylocaprate have been added as new ingredients. The permissions for several other ingredients have been changed.

 

International food regulatory news

New Zealand

9.     New food recall guidance

On 20 April 2022 New Zealand Ministry for Primary Industries (MPI) issued new food recall guidance.

The updated guidance includes a toolbox of example procedures, checklists, and spreadsheets, as well as an updated recall risk assessment form and recall audit form. The guidance is designed to better assist New Zealand food businesses with meeting their recall requirements under the New Zealand Food Act.

 

10.  Unfair contract terms prohibition extended to standard form B2B contracts

New Zealand’s existing prohibition on unfair contract terms in consumer contracts will be extended to from 16 August 2022 to include standard form small trade contracts.

In this context, ‘small trade contracts’ refer to standard form contracts between parties both engaged in trade worth under NZ$250,000 per year. A contract term will be ‘unfair’ if it would cause a significant imbalance between the parties, is not reasonably necessary to protect the legitimate interests of the party that would seek to rely on it, and would cause detriment if relied upon.

If a ‘small trade contract’ contains an unfair contract term after 16 August 2022, a New Zealand Court may deem that the clause is invalid and impose a fine of up to NZ$600,000.

 

United Kingdom

11.  UK Food Standards Agency issues final call for CBD food products to be added to the public list

On 21 April 2022 the UK Food Standards Agency (FSA) issued a final call for evidence linking Cannabidiol (CBD) products to applications on the public list.

CBD has the status of a novel food in the UK. CBD products that are on the public list may continue to be sold in the UK pending the outcome of the relevant novel food authorisation.

 

12.  UK Food Standards Agency issues consumer guidance on oil substitutions

On 29 April 2022 the FSA expanded its guidance to consumers that some UK food products may contain substituted vegetable oils.

This guidance comes amidst product shortages arising from the conflict in Ukraine.

Under the guidance, UK food businesses may sell products that contain fully refined palm oil, fully refined coconut oil and fully refined soybean oil in products that state ‘sunflower oil’ in the ingredients list.

Where the substitute oils are used, the FSA expects businesses to inform consumers about any product changes (e.g. point of sale notices and information on their websites).

 

13.  Kellogg’s launches legal challenge against UK laws for sugar in cereal

In April 2022 Kellogg’s initiated legal proceedings against the UK Government in relation to laws that would present some cereal products from being displayed prominently on supermarket shelves.

The UK laws will come into effect from October 2022, and will restrict the promotion of certain foods that meet prescribed thresholds for fat, sugar and salt. These products will not be able to be displayed at the checkout, store entrance, aisle ends or in prominent positions on supermarket websites.

Kellogg’s claims that its cereal products would be consumed with milk or yoghurt, in which case the product ‘as-consumed’ would not meet the nutritional threshold that would see it be captured under the laws.

 

United States

14.  FDA Issues Draft Guidance on evaluation of new allergens

On 18 April 2022 the US Food and Drug Administration (FDA) issued draft guidance outlining its approach when evaluating the public health importance of food allergens that are not one of the major food allergens identified by law in the US.

Under US Law, the major food allergens are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. Sesame becomes the ninth major food allergen effective January 1, 2023. Under the draft guidance, the FDA proposes to consider key scientific factors including prevalence, severity and allergenic potency to determine the public health importance of a non-listed food allergen.

 

15.  FDA revises permitted fluoride levels for bottled water

On 20 April 2022 the US FDA announced that it had revised down the levels of added fluoride allowed in domestically packaged and imported bottled water.

The current allowable levels range from 0.8 to 1.7 milligrams per litre (mg/L). Under the final rule, bottled water which contains added fluoride must not contain in excess of 0.7 mg/L. This rule will become effective on 21 June 2022, and all US businesses must comply by 17 October 2022.

 

16.  FDA issues draft guidance for industry on levels of lead in juice

On 27 April 2022 the US FDA issued draft guidance on the action levels for lead in single-strength (ready to drink) apple juice and in other single-strength juices and juice blends.

The draft guidance provides an action level for lead in apple juice of 10 parts per billions (ppb) and in other juices of 20 ppb. If finalised, these new action levels will replace the current level of 50 ppb.

The FDA may find products that exceed the prescribed action levels to be adulterated.

 

European Union

17.  EFSA’s scientific advice on nutrient profiling published

On 19 April 2022 the European Food Safety Authority (EFSA) published its scientific advice related to nutrient profiling.

EFSA concluded that intakes of energy, saturated fats, sodium and added sugars/free sugars are too high in Europe. EFSA also found that dietary fibre and potassium intake is too low in most European adult populations.

The EFSA advice will inform both the development of a future EU-wide system for front-of-pack nutrition labelling and conditions for restricting nutrition and health claims on foods. As at May 2022, EFSA has not proposed any particular nutrient profiling model.

 

Indonesia

18.  Indonesia announces plans for an export ban of palm oil

On 22 April 2022 the Indonesian government announced plans for an export ban of palm oil starting 28 April 2022.

Initially, the Indonesian government indicated that it would only halt shipments of refined, bleached and deodorized palm olein. However, the ban has been expanded to apply to both crude and refined palm oil. The ban has contributed to an increase in worldwide cooking oil prices, as palm and other oils had been used to account for supply shortages in sunflower oil from Ukraine.

The Indonesian government has stated that the ban will continue until it is satisfied domestic availability and affordability of the cooking oil.

Commentators have queried the commercial viability of maintaining such an export ban because of the shortage of silo and tank storage space to hold large volumes of palm oil in Indonesia, and the adverse impacts on plantations that would be caused by non-harvesting.

 

India

19.  Food Safety and Standards Authority of India issues guidance note on elimination of trans fatty acids

The Food Safety and Standards Authority of India has issued a guidance note on the elimination of trans fat.

The guidance note includes suggestions for food manufacturers on how to eliminate trans fats from their products and information for consumers on avoiding trans fats. The guidance note also outlines technologies that may be used to eliminate industrial trans fats, such as inter-esterification, selection of raw material and binding options, monitoring and modifying hydrogenation process & deodorisation process.

 

South Korea

20.  South Korean businesses to submit recycling data

From 15 April 2022 South Korean manufacturers and importers of packaging materials are required to submit prescribed delivery and import data.

The requirement was imposed by the South Korea Ministry of Environment (MoE). The data that businesses must submit includes records of the delivered/imported quantity of recyclable packaging materials and information that can be used to calculate the weight and capacity of the packaging materials.


This is general information rather than legal advice and is current as of 26 May 2022. 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.