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
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
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
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 A1268 – Steviol
glycosides produced by bioconversion using new enzymes produced by GM
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.
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:
A1280 - Food derived from herbicide-tolerant and insect-protected corn line
DAS1131. Submissions close 9 February 2024.
A1281 - Food derived from herbicide-tolerant and insect-protected corn line
DP910521. Submissions close 5 March 2024.
FSANZ publishes amendment to
Schedule 4 of the Food Standards Code, incorporating ‘no added sugar’ claim
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.
approves Food Standards Code variations:
On 15 December 2023,
FSANZ approved variations arising from the following applications:
A1270 – Food derived from herbicide-tolerant and insect-protected corn line
– 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.
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
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
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
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.
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.
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
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
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.
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:
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.
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.
High Court issues judgment prioritising specialist safety legislation over consumer
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  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.
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
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
DAFF is seeking submissions on its draft review until 28
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.
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.
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
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
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.
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
26. NZ MPI seeks submissions on various
The New Zealand MPI is
seeking comments on the following regulatory measures regarding residue limits,
fisheries and imports:
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.
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.
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.
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
Avian influenza is a global
threat to egg supply chain and leads to significant packaging costs.
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
32. FDA provides infant formula safety
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
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.
34. South Korea bans dog meat for
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.