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

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

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.

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