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

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

© Lawmedia Pty Ltd, May 2024

 

Australian Competition and Consumer Commission (ACCC) News:

1.     ACCC brings proceeding against GLAD bags manufacturer for ‘50% ocean plastic’ claims

On 18 April 2024, the ACCC instituted proceedings in the Australian Federal Court against Clorox Australia Pty for allegedly making false or misleading representations in breach of Section 18 of the Australian Consumer Law. Clorox manufacturers GLAD-branded kitchen and garbage bags.

The ACCC alleges that Clorox represented its GLAD bags and garbage bags were made of 50% recycled ‘ocean plastic’ collected from the ocean or sea. There was a statement of “50 ocean plastic” in large font at the front of package. The ACCC alleged the statement was misleading as the plastic component was actually collected from Indonesian communities that were located up to 50 kilometres from a shoreline, instead of the ocean or sea.

 

2.     Qantas admits it misled consumers on ticket purchases

On 6 May 2024, Australian airline Qantas admitted it had misled consumers by advertising tickets for flights it had already decided to cancel, and for cancelling further flights without promptly informing ticket holders.

The ACCC and Qantas have agreed to a settlement including a $100 million penalty, which now must be approved by the Federal Court, for contravention of the Australian Consumer Law. The parties have also agreed to Qantas paying affected customers the total sum of $20 million.

Although this case did not specifically concern a food business, it highlights the importance ensuring that any statements about the product being purchased by a consumer are not misleading, especially where the sale takes place online.


3.     ACCC approves proposed acquisition of Superior Food Services by Metcash

On 26 April 2024, the ACCC announced that it would not oppose the acquisition of wholesale food distributor SFG Group Food Holdings by Metcash Trading Limited.

The ACCC reviewed the proposed acquisition and found that it would not be likely to substantially lessen competition. The ACCC found that although both Metcash and Superior supply food products, they do not compete closely for customers.

 

Food Standards Australia New Zealand (FSANZ) News:

4.     FSANZ approves amendments to Food Standards Code

On 8 May 2024 FSANZ approved amendments to the Australia New Zealand Food Standards Code (Food Standards Code) arising from the following Applications:

·        Application A1257 – Australian native bee honey

·        Application A1280 – Food derived from herbicide-tolerant and insect-protected corn line DAS1131

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

 

5.     FSANZ publishes Food Standards Code amendments

On 29 April 2024, Food Standards Australia New Zealand (FSANZ) published Gazette No. 227 to amend the Food Standards Code. The amendments relate to Standard 1.2.1 (Requirement to have labels), Schedule 18 (Processing Aids) and Schedule 26 (Gene technology produced foods).

The amendments arise from the following applications:

·        Application A1271 Cellulase from GM Aspergillus niger as a processing aid

·        Application A1272 Food derived from herbicide-tolerant and insect-protected corn line DP915635

·        Application A1274 Food derived from disease-resistant banana line QCAV-4

·        Application A1278 Beta-Fructofuranosidase from GM Trichoderma reesei as a processing aid

 

Other Australian regulatory news

6.     APVMA opens public consultation for regulatory decisions

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has opened for public consultation on the following decisions:

·        Fenitrothion – submissions close 8 July 2024;

·        Diazinon – submissions close 11 June 2024;

·        Neomycin – submissions close 26 May 2024.

Submissions can be made on the APVMA website.

 

7.     TGA reschedules bromoxynil as a dangerous poison, APVMA delays enforcement

On 17 April 2024 the Therapeutic Goods Administration (TGA) reclassified bromoxynil from a Schedule 6 “Poison” to a Schedule 7 “Dangerous Poison” under the Standard for Uniform Scheduling of Medicines and Poisons (Poisons Standard). The reclassification has been delayed and will take effect on 1 February 2025.

On 24 April 2024 the APVMA announced it would delay taking enforcement action relating to the use of bromoxynil until the reclassification takes effect on 1 February 2025. Previously, the APVMA had announced it would commence enforcement of bromoxynil use on 1 June 2024.

Schedule 7 poisons have higher potential for causing harm at lower exposure than Schedule 6 poisons. The re-classification to Schedule 7 will have an impact on signal heading and storage requirements on product labels.

 

8.     TGA opens consultation on Poisons Standard changes

On 23 April 2024, the TGA opened public consultation for applications and proposals to amend the Poisons Standard. Public comment is sought in relation to Sildenafil, Allyl Esters, Glyoxylic Acid, Intravenous Potassium Salts and Sulfonamides.

Submissions close 22 May 2024 for consideration by the June Advisory Committee on Medicines Scheduling (ACMS) and the Advisory Committee on Chemicals Scheduling (ACCS).

 

9.     TGA commences court proceedings against medicinal cannabis group

On 17 April 2024, the TGA initiated court proceedings against Montu Group Pty Ltd (and its subsidiary Alternaleaf Pty Ltd) for unlawful advertising of medicinal cannabis. The TGA alleges the company’s advertising included terms such as “medical cannabis” and “plant medicine” to promote their online clinic in the context of the treatment of serious disorders and diseases.

The TGA alleges that these representations were restricted or prohibited and therefore not allowed in advertising without express TGA permission. The TGA also alleged that the advertisements implied the medicinal cannabis:

-        Had been approved or recommended by the TGA;

-        Was safe and without side effects; and

-        Included endorsements from health professionals.

The claim is also filed against the common director of the companies. The TGA is focusing on the unlawful advertising of cannabis products as an enforcement priority in 2023-24.

 

10.  TGA fines individual for unlawful peptide import

The TGA has issued an infringement notice (following a number of previous warnings) totalling $3,756 to an individual based in Victoria for the alleged unlawful importation of a peptide. The TGA alleges that the individual did not have approval or authority to import the prescription-only medicine.

 

11.  Department of Agriculture seeks comments on updated report on dairy biosecurity

In April 2024, the Australian Department of Agriculture, Fisheries and Forestry (DAFF) published an updated draft report containing a risk review for dairy products for human consumption.

The review aims to update the requirements for dairy products imported into Australia to reflect current science and biosecurity risks. DAFF released its first report in 2023 and made amendments following a round of industry feedback. The most recent report includes changes to the minimum requirements for imported milk, as well as the way biosecurity risk is assessed in relation to Foot and Mouth Disease and Lumpy Skin Disease.

Submissions are due by 17 June 2024.

 

12.  Department of Agriculture provides export and import updates

Throughout April 2024, DAFF has provided updates on the following issues:

·        Updated export guidance for import of fresh fruit and vegetables to Fiji, according with the risk of fall armyworm (Spodoptera frugiperda);

·        Updates to the published list of horticulture protocol treatment facilities;

·        A risk review on biosecurity risks associated with importing dehydrated and pre-sterilised microbiological media;

·        Opened for public consultation on changes to regulatory charges for biosecurity and imported food activities. The draft fee schedule is open for comment until 7 May 2024. The proposed changes will commence on 1 July 2024;

 

13.  Department of Agriculture releases draft on import requirements for pomelo fruit

On 30 April 2024, DAFF released a biosecurity draft report for import requirements pertaining to pomelo fruit from Vietnam. The report is open for submissions until 29 June 2024.


International food regulatory news

New Zealand

14.  New Zealand Ad Standards Authority updates advertising codes

On 30 April 2024, the New Zealand Ad Standards Authority announced that two new Codes will replace the existing Children and Young People’s Advertising Code, as well as the existing rules in the Advertising Standards Code.

The two new codes will be the Food and Beverages Advertising Code and the Children’s Advertising Code, and will take effect for new advertising from 1 August 2024. The Codes will take effect on signatories from 1 November 2024.

 

 

15.  NZ Commerce Commission raises concerns with proposed retailer merger

On 4 April 2024 the New Zealand Commerce Commission released a statement of issues identifying concerns with the proposed merger of grocery retailers Foodstuffs North Island Limited and Foodstuffs South Island Limited.

The Commerce Commission is continuing to investigate the potential impacts on competition should the merger proceed. However, it has specifically identified concerns with the potential for a merged entity to coordinate with other major retailers in New Zealand to impose stricter trade terms on suppliers. The Commerce Commission also identified the potential for the merger to slow the pace of product innovation.

 

16.  NZ MPI seeks comments on import health standard for zoo equids

On 19 April 2024, the New Zealand Ministry for Primary Industries (MPI) opened a comment period for a new proposed import standard for zoo equids. The new standard will replace an existing standard for importing zebras from Australia into New Zealand.

Submissions close 16 July 2024.

 

United Kingdom

17.  Food Standards Agency launches consultation on product approval process

On 3 April 2024 the UK Food Standards Agency (FSA) opened a consultation period on proposed changes to the authorization process for regulated products including food additive and flavours.

The current UK process mirrors the approval process that applies in the European Union. The FSA proposes to remove the current requirement to have approvals renewed at fixed periods, and to remove the requirement for legislation to be updated before approvals can take effect.

Submissions are due by 5 June 2024.

 

European Union

 

18.  EFSA publishes report on pesticide residues in food

On 23 April 2024 the European Food Safety Authority (EFSA) published an updated report on pesticide residues in food in the European Union.

The report analysed over 110,000 samples and found that 96.3% of samples fell within legally permitted levels. The results will be used to inform future EFSA dietary exposure assessments.

 

United States

19.            FDA reopens comment period for draft guidance on Food testing for fish and fishery products

On 12 April 2024, the US Food and Drug Administration (FDA) reopened the comment period for its draft guidance: ‘Recommendations for Collecting Representative Samples for Food Testing Used as Evidence for Release of Certain Fish and Fishery Products Subject to Detention Without Physical Examination (DWPE) and Removal of a Foreign Manufacturer’s Goods from DWPE’.

The guidance provides recommendations for how representative samples ought to be collected for testing when fish and fishery products are subject to detention without physical examination (DWPE). DWPE products have been associated with the appearance of adulteration caused by pathogens, unlawful drugs or decomposition.

The comment period closes on 11 June 2024.

 

20.  FDA publishes Agricultural water safety rule

On 2 May 2024, the FDA published a final rule revising pre-harvest agricultural water provisions for covered products (other than sprouts) under the FDA Food Safety Modernisation Act Product Safety Rule.

The rule replaces previous water microbial quality criteria and testing requirements for covered produce.

 

21.  FDA releases report on economically motivated adulteration in Honey

On April 8th 2024, the US FDA released data from a sampling collection and analysis on imported honey to detect economically motivated adulteration (EMA).

The sampling assignment, which was conducted between April 2022 and July 2023, found 3% of samples to adulterated out of 107 samples collected. Adulterated product may be refused entry into the US.

 

22.  US introduces bill to harmonise pet food regulation

In February 2024, US Congress introduced a bill to harmonise the approval process for pet food products across the US.

The new Federal system is intended to make it easier for per food manufacturers to invest in research and development for new products. Currently, pet food manufacturers in the US are subject to separate State and Federal requirements.

 

23.  FDA makes technical amendment to food additive name

On 29 April 2024, the FDA has updated its food additive regulations in response to a scientific development. The organism Corynebacterium lilium has been reclassified to Corynebacterium glutamicum in the scientific field.

Corynebacterium lilium is a production organism in extracted glutamic acid fermentation.

 

South Africa

24.  South African court rules on plant-based nomenclature

The Johannesburg High Court has ruled against a government to prohibit the sale of plant-based products that use meat descriptors.

The policy, introduced by the South African Department of Agriculture in 2022, would have allowed the seizure of plant-based products using “meat-like” names on labels such as “nuggets”, “burgers” or “sausage”. The Court granted a two-year interdict that has the effect of preventing any government seizures of product.


This is general information rather than legal advice and is current as of 10 May 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.