Current developments in food law and policy in Australia and internationally (September 2024)
By Joe Lederman and John Thisgaard (FoodLegal
Co-Principals)
© Lawmedia Pty Ltd, September 2024
1.
DAFF seeks industry input on assurance for
non-prescribed goods
On 29 July 2024 the Australian Department of
Agriculture, Fisheries and Forestry (DAFF) published released a
discussion paper and is seeking submissions on assurances for non-prescribed
goods exported from Australia to other countries.
The reforms will affect Australia’s export industries
including processed foods, pet food, stock feed, feed additives, honey,
pharmaceutical, wool and skins, industries. Contact FoodLegal for more
information and advice.
Under the Export Control Act 2020 (Cth), DAFF
can provide assurances to foreign governments that goods imported into those
countries meet importing country requirements. DAFF is seeking to reform the
way that assurances are managed to reflect increased assurances which are required
by importing countries, and to streamline the administrative process and the
way that fees are imposed.
Submissions close 6 September 2024.
Food Standards Australia New Zealand (FSANZ) News:
2.
FSANZ making progress on nutrition labelling
works
On 13 August 2024 FSANZ announced it will advance work on two proposals relating to
nutrition labelling:
-
Proposal P1059: To examine declarations of energy
content on alcoholic beverages; and
-
Proposal P1049: To clarify nutrition content claims
about carbohydrates and sugar on alcohol.
At the same time, FSANZ is reviewing the display of nutrition information
as part of the Health Star Rating (HSR) system and Nutrition Information Panel, which we address in this
September 2024 edition of FoodLegal Bulletin.
3.
FSANZ commences assessment of infant formula
applications
On 15 August 2024 FSANZ commenced its assessment of Application A1307 to permit the use of
a whey protein enriched by milk fat globule membrane concentrate, as a
nutritive substance in infant formula products.
The application, made by Arla Food Ingredients, will likely open for
public comment in December 2024 or January 2025.
4.
FSANZ calls for
submissions on Application A1260: 2-Methyloxolane as a processing aid
On
26 August 2024, FSANZ called for submissions from industry with respect
to Application A1260 by Pennakem Europa to permit 2-methyloxolane as an
extraction solvent processing aid. FSANZ has prepared a draft variation to
amend Schedule 3 (Identity and purity) and Schedule 18 (Processing aids).
Submissions
close 20 September 2024.
5.
FSANZ calls for submissions on Application A1291: Glucoamylase
from GM Aspergillus niger as a processing aid
On
27 August 2024, FSANZ called for submissions from industry with respect
to Application A1291 by Novozymes Australia to permit a protein engineered
variant of glucoamylase from genetically-modified Aspergillus niger as a
processing aid. FSANZ has prepared a draft variation to amend Schedule 18
(Processing aids).
Submissions
close 24 September 2024.
6.
FSANZ commences assessment of Application A1306: Chitosan from
Agaricus bisporus as a processing aid for alcoholic beverages
On
12 August 2024 FSANZ commenced its assessment of Application A1306 by AB
Biotek to permit a new source microorganism Agaricus bisporus for chitosan to
be used as a processing aid for wine, beer, cider, spirits and other alcoholic
beverage production.
FSANZ
will announce an opportunity for comment at a later date.
7.
Application A1290 to permit Citicoline in formulated caffeinated
beverages withdrawn by applicant
On
12 August 2024 FSANZ announced that Application A1290 to permit the
addition of citicoline as a nutritive substance for addition to formulated
caffeinated beverages had been withdrawn by the applicant, Kyowa Hakko Bio Co.,
Ltd.
The
Application was originally submitted in December 2023.
8.
FSANZ releases survey on consumer attitudes to food
On
7 August 2024, FSANZ released the results of its Consumer Insights
Tracker survey, which surveyed over 2000 consumers across Australia and New
Zealand on their attitudes and understanding of food safety and values. Some
key results include:
·
72% of consumers were confident that food and drinks sold in ANZ
were safe
·
69% of consumers considered the nutrition information panel and
the ingredients list to be important in making food choices
·
60% of consumers considered claims to be important and 59%
considered the health star rating to be important when making food choices
·
Although the health star rating and on-label claims were
considered important, they were the least trusted labelling elements.
·
49% of consumers considered naturalness to be a factor
influencing the purchase of food.
Australian Competition and Consumer Commission (ACCC)
News:
9.
Federal Court orders $10.95
million penalty for misleading parking services
On 8 August 2024, the Australian Federal Court
ordered Secure Parking Ltd to pay AUD$10.95 million in penalties for making
misleading and false claims about its pre-book online parking service in breach
of the Australian Consumer Law.
Although the case was not a food industry case, the
relevance of the decision and ACCC’s position to food businesses is that a food
business should similarly avoid making misleading representations about its
services such as delivery services and should be cautious when making
representations that it does not have the capacity to meet.
Following prosecution by the ACCC, Secure Parking
admitted it had made false or misleading representations to consumers that
there would be a parking space reserved for them at a particular time and date,
when it was not the case. The ACCC indicated that it will bring proceedings
against any business that makes misleading claims about the nature of its
services.
10. ACCC
grants interim authorisation for infant formula marketing agreement to continue
On 14 August 2024 the ACCC granted interim authorisation
to the Infant Nutrition Council to allow the continuation of the Marketing in
Australia of Infant Formula (MAIF) Agreement. The MAIF Agreement is a
voluntary industry code of conduct through which infant formula brand
signatories agree to comply with marketing principles for infant formula.
The MAIF Agreement came into existence as a
consequence of Australia signing an international treaty by which countries
agreed to impose restrictions on marketing infant formula foods so as not to
detract from human breastmilk as a healthy alternative. However, in the modern
western world, many working women want to purchase infant formula products, and
infant formula processors have been investing considerably to make infant
formulas that are closer to the natural human alternative.
In April 2024, the Australian Department of Health reviewed
the MAIF agreement, finding that it is no longer fit for purpose in its current
form (see Item 11 below). The interim authorisation granted by the ACCC allows signatories
to operate under the current MAIF Agreement while industry works on an
alternative measure.
Other
Australian regulatory news
11. Australian
Department of Health opens public consultation on improving commercial foods
for infants and young children
On 5 August 2024 the Food Regulation Standing
Committee, which is part of the Australian Federal Department of Health, opened
submissions regarding the nutritional composition, labelling and texture of
commercial foods for infants and young children. In April 2024, the Australian
Department of Health identified that the current MAIF Agreement, which applies
to infant formula products, was not fit for purpose in its current form (see
item 10 above).
The announcement follows the approval of a Consultation
Regulation Impact Statement (RIS) considering policy options to improve commercial
foods for infants and young children by Australian and New Zealand Food
Ministers in July 2024. The RIS concerned improvements in labelling,
composition and texture, among other things, of those commercial foods. The consultation
seeks comment on current issues with commercial foods for infants and young
children, the potential impact of the RIS, alignment with present advice for
infant feeding and alternate options or strategies.
Submissions close on 13 September 2024.
FoodLegal can assist businesses with submissions.
12. Federal
Court orders $11.3 million penalty for misleading environmental claims in
financial sector
On 2 August 2024, the Australian Federal Court
ordered Mercer Superannuation to pay AUD$11.3 million in penalties for making
misleading representations about its investment products in breach of the Australian
Securities and Investments Commission Act.
Mercer represented that its “Sustainable Plus”
investment product excluded companies profiting from carbon intensive fossil
fuels, alcohol and gambling. However, the funds of members choosing this option
actually became invested in companies involved in these sectors. This amounted
to a breach of sections 12DB(a) and 12DF(1) of the Australian Securities and
Investment Commission Act 2001 (Cth) which prohibits false and misleading
representations in relation to financial services.
Similar prohibitions on misleading and deceptive conduct
exist under the Australian Consumer Law, which is enforced by the ACCC
and applies to product marketing. This case highlights the importance of
reviewing marketing material to ensure it does not include misleading environmental
claims.
We addressed the ASIC action against Mercer in the
context of regulator enforcement of ‘greenwashing’ claims in our April 2023
edition of FoodLegal Bulletin
13. APVMA
opens consultation on definition of ‘minor use’
On 16 August 2024, the Australian Pesticides
and Veterinary Medicines Authority (APVMA) opened submissions in
relation to draft guidelines for determining a ‘minor use’ for a chemical
product or active constituent.
Under Australia’s agricultural and veterinary chemical
framework, it is possible to obtain a permit that would allow an otherwise
restricted chemical product to be used for a ‘minor use’, without obtaining
additional registration. The draft guidelines seek to clarify which activities
could amount to a minor use, including small-scale and/or infrequent use of
pesticides, or a change of use of a registered chemical product to account for
unusual seasonal conditions.
Submissions close on 11 October 2024.
14. ABAC
panel finds roadside advertisement to breach alcohol advertising standards
On 8 July 2024, the Australian Beverages
Advisory Council (ABAC) Panel made a determination that a roadside
advertisement breached the ABAC Code.
The roadside advertisement by Murrumbateman Winery stated
that “Good wine is cheaper than therapy”. The ABAC Panel found that the advertisement
breached Part 3 (c)(iv) of the ABAC Code, which prohibits marketing
communication from suggesting that alcohol consumption offers therapeutic or
health benefits or is needed to relax.
15. Ad
Standards finds food advertisement ‘targeted children’
On 24 July 2024, the Ad Standards Community
Panel found that a McDonalds advertisement targeted children and therefore
breached the AANA Food & Beverages Code.
Under the Food & Beverages Code, advertisements of
‘occasional food and beverage products’ (products which do not meet the
Nutrient Profile Scoring Criterion found in the Food Standards Code) must not
target children.
McDonalds advertised its banana desserts range by
portraying ‘Minions’ from the Despicable Me movie franchise playing in a
McDonalds playground, which the Community Panel determined would appeal to
children. Notably, the Community Panel distinguished this advertisement from
previous advertisements which also featured ‘Minions’ characters on the basis
that this most recent advertisement included children in ‘Minion’ costumes,
which were bright and would have significant appeal to children.
International
food regulatory news
New
Zealand
16. Dairy
company fined NZ$420,000 for misleading origin claim
On 26 August 2024, the
Hamilton District Court fined Milkio Foods Ltd NZ$420,000 for breaches of the New
Zealand Fair Trading Act.
Milkio Foods claimed that
certain dairy products such as their ghee products were “100% Pure New Zealand”,
when in fact core ingredients in the products had been imported from India. Milkio
Foods also used false and incomplete information to maintain approval to use
the ‘Fernmark Logo’ and license, which demonstrates that a product is made in
New Zealand.
17. NZ Advertising Standards Authority
finds alcoholic lemonade to be in breach
On 23 July 2024, the New Zealand Advertising
Standards Authority found that social media advertising for BEE Pink Alcoholic
Lemonade breached the NZ Alcohol Advertising and Promotion Code (NZ Alcohol
Code).
The post, which was made by a third party advertiser
but referred to the product, also included images of water sports, which was
found to have breached the NZ Alcohol Code prohibition against linking alcohol
consumption with swimming and water sports. However, this portion of the
complaint was considered ‘settled’ rather than ‘upheld’ because the post was
removed after the complaint was made.
This case provides an example of why companies should
regularly monitor ‘tagged’ social media content. In many jurisdictions, tagged
content is considered an ‘advertisement’ or ‘post’ made by the subject
organisation.
18. NZ
MPI restricts tomato seed imports from Australia
On 22 August
2024, the
New Zealand Ministry for Primary Industries (MPI) announced it had placed
import restrictions on tomato seed imports from all states in Australia, except
Queensland. This step was taken due to the detection of tomato brown rugose
fruit virus at 2 growing locations in South Australia.
Imported seeds for sowing
from Australia now require testing for the virus prior to arrival in New
Zealand.
19. Fish trader sentenced for
illegally catching fish
On 19 August
2024, the New
Zealand MPI announced the Auckland District Court had sentenced Sea World
Limited (trading as Seamart) as well as an individual employee for receiving
and distributing over NZ$300,000 of illegally caught fish.
As a result of the charges
brought under the Fisheries Act, Seamart was fined NZ$360,000 and the employee
was jailed for 3 years 7 months. Over 38,000kg of snapper, 2,700kg kahawai and 1,700kg
of grey mullet was illegally caught and distributed.
European
Union
20. European Commission proposes Whole
Genome Sequencing to combat food illness outbreaks
On 21 August 2024, the EU Commission proposed a
new initiative which would require EU Member States to use whole genome sequencing
(WGS) as a tool during some foodborne illness investigations.
Specifically, the proposed requirement top use WGS
would apply to investigations into infectious diseases transmissible from
vertebrate animals to humans, in line with EU Directive 2003/99/EC.
The draft initiative is open for comment until 18
September 2024.
United
States
21. US FDA seeks comments on notification
programs
On 9 August 2024, the US Food and Drug
Administration (FDA) opened comments on their General Recognized as Safe
(GRAS) and Food Additive Petition notification programs. These programs
are used as pre-market steps for the introduction of new food ingredients and
additives.
The purpose of the consultation is to determine if changes
to the notification programs are necessary to improve efficiency.
Submissions close on 9 December 2024.
22. Florida cultivated meat ban challenged
in court
In August 2024,
cultivated meat producer Upside Foods brought a legal challenge against a
Florida State ban on cultivated meat.
The ban came into effect in
Florida on 1 July 2024. Upside Foods alleges that the ban is unconstitutional
on the grounds that it is protectionist and targets cultivated meat which is
only produced outside of Florida.
23. US FDA releases new version
of voluntary sodium reduction guidance for food companies\
On 16 August
2024, the US FDA released its second edition of Draft Guidance for
Industry: Voluntary Sodium Reduction Goals. The guidance concerns Phase 2 goals
for sodium reduction, which will operate between 2024-2027. It requests
producers of packaged and prepared foods to reduce sodium in 163 food
categories.
The Dietary
Guidelines for Americans, 2020-2025 (Dietary Guidelines) recommends individuals
to limit sodium intake to 2,300 mg per day. The average intake for US persons
is 3,400 mg/day. The voluntary targets for industry are aimed at reducing
average sodium intake to 2750 milligrams daily, which is 20% lower than the Phase
1 target of the earlier 2021 guidance.
Submissions are
open to comment on the draft guidance until 14 November 2024.
This is general information rather than legal advice and is current as of 4 Sep 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.