Current developments in food law and policy in Australia and internationally (February 2024)

Current developments in food law and policy in Australia and internationally

By Joe Lederman and John Thisgaard (FoodLegal Co-Principals)

© Lawmedia Pty Ltd, February 2024

 

Food Standards Australia New Zealand (FSANZ) News:

1.     FSANZ calls for submissions on Irradiation maximum energy levels

On 1 February 2024, FSANZ called for submissions on Application A1261 by Steritech Pty Ltd to increase the maximum energy level for machines used to irradiate food.

The application proposes to increase the maximum level  energy level for machines generating X-rays used to irradiate food 5 megaelectronvolts (MeV) to 7.5 MeV. The proposed new limit would only apply where X-ray target of the machine source is made of tantalum or gold.

Submissions are due by 15 March 2024.

 

2.     FSANZ calls for submissions on Application A1282 – Subtilisin from GM Bacillus subtillus as a processing aid

On 30 January 2024, FSANZ called for submissions on Application A1282 by IFF Australia Pty Ltd (trading as Danisco Australia Pty Ltd) to permit Subtilisin from GM Bacillus subtillus as a processing aid. The intended use is for protein processing, typically in baking, dairy, egg, meat and fish processing.

Submissions are due by 14 March 2024.

 

3.     Amendment No. 225 takes effect

On 19 January 2024, FSANZ published Amendment No. 225 to the Australia New Zealand Food Standards Code (Food Standards Code). The amendment incorporates changes from the following Applications:

·        Application A1243 – Harmonisation of marine biotoxin standards for bivalve shellfish

·        Application A1250 – Pullulanase from GM Bacillus subtilis (gene donor: Bacillus deramificans) as a processing aid

·        Application A1267 – Fructanase from GM Trichoderma reesei as a processing aid

 

4.     FSANZ completes administrative assessment on Application A1288 – Thermolysin from Anosybacillus caldiproteolyticus Rokko as a processing aid

On 21 December 2023, FSANZ completed its administrative assessment of application A1288 by IFF Australia Pty Ltd to permit Thermolysin from Anosybacillus caldiproteolyticus Rokko as a processing aid. The application is for the substance to be used for protein hydrolysis in dairy foods, egg, meat and fish, protein concentrates and isolates, yeast and brewing.

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

 

5.     FSANZ calls for submissions on food derived from herbicide-tolerant and insect-protected corn lines

FSANZ has called for submissions with respect to the following applications, which were both made by Corteva Agriscience Australia Pty Ltd:

·        Application A1280 - Food derived from herbicide-tolerant and insect-protected corn line DAS1131. Submissions close 9 February 2024.

·        Application A1281 - Food derived from herbicide-tolerant and insect-protected corn line DP910521. Submissions close 5 March 2024.

 

 

6.     FSANZ publishes amendment to Schedule 4 of the Food Standards Code, incorporating ‘no added sugar’ claim changes

On 13 December 2023 FSANZ published Amendment 224 to amend Schedule 4 of the Food Standards Code.

The amendments incorporate the changes from FSANZ Proposal P1062, which concerned the requirements for making claims about ‘added sugars’. Our October 2023 FoodLegal Bulletin article explored the proposal and changes in greater detail.

 

7.     FSANZ approves Food Standards Code variations:

On 15 December 2023, FSANZ approved variations arising from the following applications:

·        Application A1270 – Food derived from herbicide-tolerant and insect-protected corn line DP51291

·        M1021 – 2022 Maximum Residue Limit harmonisation proposal

FSANZ has notified these approvals to the Food Ministers’ Meeting. The Food Ministers’ meeting has 60 days to either request FSANZ to review its approval, or inform FSANZ that it does not intend to request a review.

 

8.     FSANZ starts assessment for MRL Harmonisation

On 21 December 2023, FSANZ completed an administrative assessment and made a decision to prepare proposal M1022 – 2023 MRL Harmonisation Proposal. The proposal will consider varying maximum residue limits for residues of specific agricultural and veterinary chemicals.

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

 

9.     New ACNF record of views now includes sea water

In December 2023, the Advisory Committee on Novel Foods (ACNF) released a new Record of Views formed in response to inquiries into novel foods. The Record of Views lists non-binding determinations in relation to whether a particular substance is novel in the Australian and New Zealand food regulation system.

Notably, the most recent Record of Views includes Sea water processed and packaged for culinary purposes (including to cook seafood, prepare foods such as risottos, soups and marinades). The ACNF took the view that sea water is a novel food except where public health and safety is assured through an appropriate food safety plan.

 

Australian Competition and Consumer Commission (ACCC) News:

 

10.  ACCC releases guidance on environmental claims

On 12 December 2023 The ACCC released its guidance document “Making Environmental Claims”.

The document outlines eight principles which are intended to ensure businesses make clear claims based on evidence. Misleading environmental claims and ‘greenwashing’ is an enforcement priority for the ACCC, and it is likely that these principles will also guide future ACCC enforcement actions.

In an article in this February 2024 edition of FoodLegal Bulletin, we discuss the implications

 

11.  ACCC warns franchisers over unfair contract terms

On 15 December 2023, the ACCC published its findings into a set of targeted compliance checks for unfair contract terms in franchising contracts.

Unfair contract terms are prohibited under the Australian Consumer Law. Agreements between franchisors and franchisees are also governed under the mandatory Franchising Code of Conduct.

The ACCC has indicated that it will be monitoring franchise agreements and taking action in relation to unfair contract terms. In November 2023, the maximum penalty for unfair contract terms was increased to a maximum of AUD$50 million, three times the benefit obtained by the term or 30% of adjusted company turnover during the period of breach.

 

12.  Delicia Franchising breaches Franchising Code

On 13 December 2023, Health food and beverage retailer Delicia Franchising admitted breaches of the Franchising Code of Conduct in an undertaking to the ACCC.

According to an ACCC investigation, Delicia Franchising did not sufficiently detail receipts and expenses within its marketing fund’s financial statements in 2020, 2021 and 2022. Delicia Franchising paid a penalty of $11,100, as well as issuing a corrective notice to its current franchisees to disclose the commitments made in the undertaking.

 

13.  Airbnb pays $15 million in penalties for misleading consumers

On 20 December 2023, Airbnb Ireland UC was ordered by the Australian Federal Court to pay AUD$15 million in penalties for misleading consumers about the currency of prices displayed on its platform. Airbnb was also ordered to pay an additional AUD$15 million in compensation to eligible consumers.

Airbnb charged Australian consumers on their platform in US Dollars, despite consumers reasonably assuming that prices were listed in Australian dollars. This resulted in consumers being charged more than expected.

Although this case is not food related, it does highlight the importance of being truthful and avoiding misleading representations on digital platforms. In particular, prices for Australian consumers must be displayed in Australian dollars unless clearly specified otherwise.

 

14.  Fitbit pays $11 million in penalties for consumer guarantee misrepresentations

On 12 December 2023, Fitbit LLC was ordered to pay penalties of AUD$11 million by the Australian Federal Court for making false, misleading or deceptive representations to consumers about consumer guarantee rights relating to refund eligibility or replacements.

As part of the Court proceedings, Fitbit admitted it told its customer service staff that a set of consumers did not have a right to a replacement for a faulty product after the expiry of Fitbit’s warranty period. Under the Australian Consumer Law¸ Australian consumers are protected by statutory guarantees including guarantees as to acceptable quality.

Although this case did not concern a food businesses, it demonstrates the importance of ensuring that businesses are aware of and comply with their obligations under the Australian Consumer Law.

 

Other Australian regulatory news:

 

15.  ABAC delivers “no-fault” finding in relation to complaint against Coles

On 12 December 2023, the Alcohol Beverages Advertising Code Scheme (ABAC) Adjudication Panel upheld a complaint in relation to Coles Group’s First Choice Liquor product. The complaint alleged that images on the news feed of internet browser Microsoft Edge advertising the product depicted a child under 15 years of age, and therefore breached Part 3(b) of the Responsible Alcohol Marketing Code.

Part 3(b) of the Code prohibits alcohol marketing that depicts a minor, unless shown in an incidental role. Coles Liquor did not provide the image to Microsoft Ads for use on the Edge news feed, and also contended they did not commission the ad in the first place.

The Panel determined that although Coles Group did not consciously place the ad, it had commercial arrangements with Microsoft and did not properly manage its marketing activities. The Panel delivered a “no-fault” finding that there was a technical breach of the ABAC Code, but the breach was “not reasonably foreseeable” or was “outside the reasonable control” of Coles Group.

 

16.  Federal Court finds goods sold “of a kind” to be subject to GST

On 22 September 2023, the Federal Court of Australia ruled that certain frozen foods supplied by supermarkets were goods “of a kind” that were “marketed as a prepared meal” and were subject to 10% Goods and Services Tax (GST).

Australia’s GST legislation exempts some kinds of foods from GST. In some cases, whether an exemption applies is influenced by how the product is marketed.

In handing down its decision on the GST classification of a range of ‘Birds Eye Frozen Foods’, the Court considered matters such as the meaning of “marketed as” and “of a kind“ for GST interpretation purposes, and what a “prepared meal” means today rather than when the GST was introduced in 2000. These and similar everyday products have historically been treated by traders as GST-free.

 

17.  Australian High Court issues judgment prioritising specialist safety legislation over consumer law

Even though this case did not involve food, this decision by the High Court of Australia should also be considered important and significant in a food industry context:

On 13 December 2023, the High Court of Australia delivered judgment in the case of Mitsubishi Motors Australia Ltd & Anor v Begovic [2023] HCA 43. The respondent had claimed that Mitsubishi engaged in misleading or deceptive conduct, in breach of the Australian Consumer Law, as their vehicle’s fuel consumption exceeded the fuel consumption values labelled on the car. They claimed the fuel label was misleading and deceptive.

Mitsubishi claimed that they complied with the Motor Vehicle Standards Act 1989 (Cth) and the Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth). The High Court decided that complying with the mandatory obligations under the specific safety legislation will generally not be misleading or deceptive.

The High Court found that Section 18 of the Australian Consumer law must be read consistently with the mandatory legislative requirements. Given both pieces of legislation were enacted by Federal Parliament, the Australian Consumer law requirement should give way to the specific mandatory safety legislation.

 

18.  China lifts ban on Australian meat exporters

 

In December 2023, China lifted bans on meat exports from three Australian companies. Meat exports to China from Australia were suspended in 2020 and 2022 due to reports of COVID-19 cases in Australian abattoirs.

 

The restrictions lifted had applied to Teys, Australian Lamb Company, and JBS. China has been the world’s leading food importer since 2019, with imports more than doubling in the 2018-2022 period.

 

 

19.  Department of Agriculture releases draft report for Canadian beef imports

On 11 December 2023, the Australian Department of Agriculture, Fisheries and Forestry (DAFF) conducted a draft review of a proposal by the Canadian government to permit the import of fresh beef into Australia.

As part of the application, Canada will need to achieve an appropriate risk rating by FSANZ in relation to bovine spongiform encephalopathy. Canada will also need to demonstrate compliance with relevant import conditions for beef.

DAFF is seeking submissions on its draft review until 28 February 2024.

 

20.  DAFF advises market on organic beverages in Japan

On 21 December 2023, DAFF issued a Market Access Advice in relation to the Japanese Agricultural Standards. The Standards have been revised, and now include alcoholic beverages.

Until 30 September 2025, organic alcoholic beverages exported to Japan can either be labelled in accordance with the new or former standard. The new standard, which requires obtaining organic Japanese certification, is mandatory after this date.

Australia and Japan recognize each other’s organic certifications and standards for most foods, but this does not yet apply to organic alcoholic beverages.

 

21.  APVMA allows UK-AUS Regulatory Cooperation Guidance

On 17 January 2024, the Australian Pesticides and Veterinary Medicines Authority (APVMA) announced that potential registrants of veterinary medicines can apply to have their products reviewed simultaneously by the United Kingdom and Australian regulators.

The process has been agreed between relevant regulators in Australia and the UK. Applicants for new or existing products may submit their dossier to both authorities who will conduct their assessment simultaneously, with the aim of issuing regulatory decisions at the same time.

 

22.  Therapeutic Goods vaping laws come into effect

 

On 1 January 2024, amendments to the Therapeutic Goods (Standard for Therapeutic Vaping Goods) (TGO 110) Order 2021 came into effect regarding the importation, sale and use of vaping products.

 

Under these amendments, importation of single use vapes is now banned. From 1 March 2024, further changes are scheduled to commence, including bans or limitations on importation of personal vapes, non-therapeutic vapes, notification and licence requirements.

 

 

23.  TGA seizes sports supplements from Sydney retail store

 

On 10 January 2024, the Therapeutic Goods Administration (TGA) seized (in conjunction with the NSW Police) 478 sports supplement products from a Sydney retail store. The TGA alleged that some of the substances in the products are banned, with consumption having potentially dangerous effects.

 

The seizure follows the commencement of provisions in the Therapeutic Goods (Declared Goods) Order 2019 in November 2023, which deem some sports supplement products in capsule, tablet or pill form to automatically be therapeutic goods.

 

 

New Zealand food regulatory news

 

24.  New Zealand Commerce Commission authorises infant formula restrictions

 

On 20 December 2023, the New Zealand Commerce Commission granted authorisation to the Infant Nutrition Council, allowing it to restrict the ability of its members (which comprise major manufacturers and marketers of infant formula) to market infant formula products. The relevant products are those targeted at children up to 12 months of age.

 

The approval is the third such approval the New Zealand Commerce Commission has granted since 2015. In granting the approval, the Commission noted the public health benefits outweigh any reduced competition which may result.

 

Up until now, New Zealand has not had an equivalent to Australia’s MAIF agreement, which restricts marketing of infant formula products in Australia.

 

 

25.  NZ MPI publishes Red Meat Post-Mortem Examination Code

 

On 20 December 2023, the New Zealand Ministry for Primary Industries (MPI) published its Operational Code: Red Meat Post-Mortem Examination. The Code replaced Chapters 6, 7 and 8 of the previous Red Meat Code of Practice.

 

The MPI introduced the changes to align with current legislation, following a redesign of regulations under the Animal Products Act 1999 (NZ). Rules were made easier to understand, including making clearer the difference between legal requirements and guidance.

 

 

26.  NZ MPI seeks submissions on various regulatory measures

 

The New Zealand MPI is seeking comments on the following regulatory measures regarding residue limits, fisheries and imports:

 

·        On 15 December 2023, the New Zealand MPI opened consultation on 5 related proposals to amend the New Zealand Food Notice: Maximum Residue Limits for Agricultural Compounds. Submissions close on 13 February 2024.

·        In December 2023, NZ MPI invited feedback on commercial fishers landing exception for pacific bluefin tuna. This is an exception to the general rule that fishers cannot return fish to the sea if subject to a Quota Management System. Submissions close on 9 February 2024.

·        The NZ MPI has asked for feedback relating to which mushrooms to include in a new import health standard for imported mushroom spawn for propagation. Submissions close 16 February 2024.

 

 

 

United Kingdom

 

27.  UK competition regulator launches Unilever greenwashing investigation

 

On 14 December 2023, the UK Competition and Markets Authority announced a formal investigation into ‘green’ claims made by Unilever on products such as toiletries and cleaning products. Unilever is responsible for brands such as Dove and Lynx.

 

The Competition and Markets Authority is investigating whether representations made constitute exaggerated or unsubstantiated environmental claims.

 

In Australia, the ACCC announced greenwashing and environmental claims as a priority for 2023 in relation to its compliance and enforcement policies.

 

 

28.  UK safety regulator requests allergen disclosure rules for foodservice

 

On 13 December 2023 the UK Food Standards Authority (FSA) wrote to UK ministers to discuss allergen information requirements for foodservice venues.

 

The FSA is requesting UK ministers to consider introducing a requirement for customers and staff to have verbal conversations on possible allergens for non-prepacked foods, in addition to the provision of written information. The FSA will also develop guidance material for written allergen information to increase compliance.

 

 

29.  UK upgrades farming schemes

 

On 4 January 2024, the UK Department of Environment, Food & Rural Affairs announced a major upgrade to national farming schemes – the biggest since leaving the European Union. The updates include streamlining application processes and enhancing environmental incentives for farmers.

 

 

30.  UK proposes egg labelling changes

 

On 9 January 2024, the British government proposed removing the requirement for egg producers to amend egg labels during avian influenza outbreaks. The proposal, which would apply to producers in England and Scotland (if approved) aims to reduce costs for producers.

 

Avian influenza is a global threat to egg supply chain and leads to significant packaging costs.

 

 

 

United States

 

31.  US FDA releases labelling draft guidance

 

On 13 December 2023, the United States Food and Drug Administration (FDA) released draft industry guidance documentation to update the existing Menu Labelling Supplemental Guidance. The guidance applies to the provision of nutrition labelling for foods sold in establishments such as restaurants.

 

Submissions close 12 February 2024.

 

 

32.  FDA provides infant formula safety updates

 

On 13 December 2023, the US FDA provided an update regarding initiatives to strengthen the safety and supply of infant formula in the United States.

 

Initiatives include updating the FDA infant formula compliance program, increasing the diversity of product, updating online documentation and guidance materials, and providing specialized training to personnel with oversight of critical foods (such as infant formula).

 

 

 

33.  FDA issues supplemental response on labelling D-tagatose on nutrition label

 

On 14 December 2023, the FDA issued a supplemental response to a 2018 petition from Bonumose Inc. The petition concerned the percent daily value declaration for added sugars for products containing D-tagatose, which must be declared as an added sugar despite having less calories than sucrose or table sugar.

 

In Australia and New Zealand, added sugars have been the subject of recent FSANZ proposal P1062, which resulted in amendments to Schedule 4 of the Food Standards Code.

 

 

 

South Korea

 

34.  South Korea bans dog meat for consumption

 

On 9 January 2024, the South Korea National Assembly unanimously voted to ban the production and sale of dog meat for human consumption.

 

The ban is due to take effect in July 2024, with a 3 year transition period.


This is general information rather than legal advice and is current as of 11 Feb 2024. 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.