Current developments in food law and policy in Australia and internationally (October 2024)
By Joe Lederman and John Thisgaard (FoodLegal
Co-Principals)
© Lawmedia Pty Ltd, October 2024
Australian
Competition and Consumer Commission (ACCC) News:
1.
ACCC commences proceedings against
Woolworths and Coles for misleading pricing, publishes interim Supermarkets
Report
On 23
September 2024, the ACCC initiated proceedings in the Australian Federal
Court against Woolworths and Coles Supermarkets for breaching the Australian
Consumer Law.
The ACCC
is alleging that Woolworths and Coles misled consumers about the discount
pricing claims on common supermarket products by offering products at certain
prices, before increasing the price by 15% for a short period of time. The
supermarkets then placed the products into ‘discount’ programs (such as ‘Prices
Dropped’ or ‘Down Down’) whereby the products were presented as having a ‘special’
or ‘discounted’ price that was the same or higher than the previous price.
The
proceedings follow a directive provided by the Australian Treasurer to the ACCC
in January 2024 to investigate pricing practices at Australian supermarkets. We
provided some contextual analysis of this review in our June 2024 edition of
FoodLegal Bulletin, and the ACCC published its interim report on 27
September 2024.
The
Australian Treasury Department is also seeking submissions on a mandatory code
of conduct that would apply to supermarkets.
2.
ACCC
proposes not to authorise industry code on infant formula marketing
On 20 September 2024, the ACCC announced it
intends to deny the authorisation sought by the Infant Nutrition Council for an
industry code to restrict the advertising and promotion of infant formula.
The Marketing
in Australia of Infant Formula: Manufacturers and Importers Agreement (MAIF
Agreement) is a voluntary, self-regulatory code of conduct which restricts
manufacturers and importers of infant formula (that opt-in to the Agreement)
from promoting infant formula up to 12 months of age.
The ACCC raised concerns that the
agreement is voluntary and may not adequately capture digital marketing media
such as social media. The ACCC has determined the public benefits would not
likely outweigh public detriment.
The ACCC is seeking submissions on this draft
determination by 17 October 2024, before making its final decision.
Food
Standards Australia New Zealand (FSANZ) News:
3.
FSANZ rejects 20-year-old
proposal for catering operations food safety protocols
On
2 October 2024 FSANZ rejected Proposal P290 – Food safety programs for catering
operations to the general public.
Proposal
P290 was first introduced in 2004, and stalled following public consultation in
2007 and 2008. In 2022, FSANZ approved Proposal P1053 which introduced a new
Standard 3.2.2A to the Australia New Zealand Food Standards Code (Food Standards Code). Standard 3.2.2A introduced
new food safety management requirements which supersede those proposed under
Proposal P290.
4.
FSANZ seeks submissions on
cost recovery changes
On
17 September 2024 FSANZ called for submissions in relation to its Draft 2025-26 cost
recovery implementation statement.
FSANZ
charges fees to review applications to amend the Food Standards Code, where the
application would confer an exclusive economic benefit on the applicant or
where the applicant seeks to expedite the application. Under the proposed
changes, the fees for submitting an application will increase by approximately
4%.
Submissions
are due by 25 October 2024.
5.
FSANZ seeks submissions on
Application A1303 – Food derived from herbicide-tolerant sugar beet line
KWS20-1
On 16
September 2024, FSANZ called for comment on Application A1303 made by Bayer
CropScience to seek approval for the sale and use of food derived from sugar
beet line KSW20-1. The sugar beet line has been genetically modified for
tolerance to the herbicides dicamba, glufosinate and glyphosate.
Submissions
close on 14 October 2024.
6.
FSANZ seeks submissions on MRL
harmonisations
On 16
September 2024, FSANZ called for comment regarding Proposal M1022 to vary
the schedules for agricultural and veterinary (agvet) chemicals in the Food
Standards Code.
Submissions
close on 29 October 2024.
7.
FSANZ seeks submissions on A1300 –
Vitamin K2 (as Menaquinone-7) as a permitted form of Vitamin K in FSMP
On 13
September 2024, FSANZ called for comment on Application A1300 by Novozymes
Australia Pty Ltd to permit Vitamin K2 (as menaquinone-7) as a permitted for of
Vitamin K in food for special medical purposes (FSMP’s).
Submissions
close on 11 October 2024.
8.
Updated infant formula requirements
gazetted
On
13 September 2024 Amendment No. 231 to the Food Standards Code was gazetted.
This amendment introduces new requirements for infant formula products.
We
wrote a detailed article about these changes in our August 2024 edition of
FoodLegal Bulletin.
9.
FSANZ accepts new
applications
On 9
September 2024 FSANZ accepted the following new Applications:
·
Application A1309 by FrieslandCampina
Ingredients B.V. to amend the specification for lacto-N-tetraose (LNT) sourced
from a permitted genetically modified source of Escherichia coli K-12
·
Application A1310 by Bayer
CropScience Pty Ltd to seek approval for the sale and use of food derived from
soybean line MON94637, genetically modified for protection from lepidopteran
insect pests
·
Application A1312 by Synaura
Biotechnology (Shanghai) Co., Ltd. to permit a new genetically modified source
of Escherichia coli BL21 for the production of 2′-Fucosyllactose (2′-FL) for
use as a nutritive substance in infant formula products
FSANZ has
commenced its assessment of Applications A1312 and A1310, and will provide an
opportunity to comment at a later date.
10. FSANZ
seeks submissions on Application A1301 - Triacylglycerol lipase from GM
Komagataella phaffii as a processing aid
On 6
September 2024, FSANZ called for comment on Application A1301 by Danstar
Ferment AG to permit triacylglycerol lipase from genetically modified
Komagataella phaffii to be used as a processing aid in bread and bakery
products.
Submissions
close on 18 October 2024.
Other Australian regulatory news
11. Consultation on new mandatory Food
and Grocery Code draft opens for submission
On 23 September, the
Australian Treasury opened for public submissions on a draft Food and Grocery
Code. The Code, which is proposed to be mandatory for Australian supermarkets
(it is currently voluntary), aims to:
·
Strengthen
dispute-resolution agreements (such as mediation and arbitration);
·
Address
supplier fears of retribution;
·
Introduce
penalties for breaching the code; and
·
Improve
outcomes for suppliers of fresh produce.
Submissions close on 18 October 2024.
The government is separately consulting on exposure
draft legislation to amend the Competition and Consumer Act 2010 (Cth) to
implement the higher penalty amounts proposed for the code.
12. DAFF public consultation on new
food safety requirements
On 3 October 2024, the Department of Agriculture, Fisheries and Forestry (DAFF) proposed new risk management measures for certain
‘risk foods’. This is based on a risk assessment conducted by FSANZ on dates,
melons, enoki mushrooms and pufferfish.
DAFF proposes the following food safety measures:
·
The
requirement of food safety management certification for dates and melons
·
Analytical
testing for enoki mushrooms
·
Foreign
government certification for pufferfish
·
Inspection
of kava from New Zealand
Submissions are open until 5pm (AEST) on 6 December 2024.
13. ASIC issues ‘greenwashing’ report
and obtains Vanguard penalty
In August 2024, the Australian Securities and
Investments Commission (ASIC) issued
a report outlining interventions taken to combat ‘greenwashing’ practices
between 2023-24. ASIC enforces false and misleading claims (including
environmental claims) in relation to financial services, whilst the ACCC
enforces a similar prohibition in relation to trade or commerce more generally,
including the sale of consumer goods.
Common ASIC interventions highlighted in the report include:
·
Undisclosed investments that are inconsistent
with environmental screening procedures;
·
Sustainability claims made without reasonable
grounds;
·
Insufficient disclosure on the methodologies
and scope of environmental investment screens; and
·
Sustainability claims made without sufficient
detail.
On 25
September 2024, the
Australian Federal Court ordered that Vanguard Investments Australia pay a
penalty of $12.9 million for breaching the Australian Consumer Law. In
March 2024, Vanguard was found to have made misleading representation relating
to the environmental screens and exclusion criteria applied to its investment
products.
14. TGA seeks submissions on Poisons
Standard amendments
On 19
September 2024, the
Therapeutic Goods Administration (TGA) published
an interim decision of proposed amendments to the Poisons Standard. The TGA
proposes to introduce new entries for sildenafil, allyl esters, glyxolic acid
and sulfonamides, which will impose restrictions on the use of these substances.
Consultation is open until 18 October 2024.
15. Federal Court orders record
penalty for unlawful supply of therapeutic goods
On 19
September 2024, the
Australian Federal Court ordered Medtronic Australasia to pay a $22 million
fine for unlawfully supplying 16,267 units of a bone graft kit between
2015-2020.
Therapeutic Goods must be registered in the Australian Register of Therapeutic
Goods (ARTG) before they can be supplied, and
Medtronic did not comply with the conditions specified in the ARTG listing.
This penalty, which occurred as a result of enforcement action taken by
the TGA, is the largest ever penalty awarded for the unlawful supply of
therapeutic goods in Australia.
16. Ad Standards decides Kellogg’s sugar
advertisement not misleading
On 28
August 2024, the Ad
Standards Community Panel found in favour of Kellogg’s in relation to a “25%
less sugar” claim made on Kellogg’s Nutri-Grain Vanilla Malt product.
The complaint alleged that the “25% less sugar” and “light on sugar”
claims were misleading, and therefore breached the AANA Food & Beverages
Code, because the product still contained a high level of sugar.
The Community Panel in this case decided that it was clear to the average
consumer that the “25% less sugar” claim is a comparative claim made with reference
to the original Nutri-grain product. The Panel also decided that the “light
on sugar” claim was a comparative claim made against the original product, and
that this would not be interpreted by the average consumer as a “low
sugar” claim.
Comparative claims and claims about sugar are also regulated under the Australian
Consumer Law, and the Food Standards Code.
17. APVMA changes conditions for use for
insecticide: Chlorpyrifos
On 3
October 2024, the
APVMA made a final decision on the reconsideration of Chlorpyrifos.
Chlorpyrifos is an insecticide which is used to control pests such as insects
and worms in agricultural and horticultural situations. The pesticide has been
further restricted in use in situations such as when:
·
The
risks to professional workers cannot be adequately mitigated
·
The
risks to human beings because of chlorpyrifos residues in food commodities cannot
be adequately mitigated
·
The
risks to non-target species cannot be adequately mitigated.
International food regulatory news
New
Zealand
18. NZ Advertising Standards Agency decision on the NZ Alcohol Advertising and Promotion Code
On 13 August 2024, the NZ Advertising Standards Agency (ASA) found website and social media marketing of Plain Jane alcohol products to be in breach of the Alcohol Advertising and Promotion Code.
The website included claims such as ‘Healthy RTD” and “Health, guilt-free”. A complaint was raised that the ad promoted an association of healthiness with alcohol advertising, along with other issues. The ASA found that the advertisements breached Rule 1(c) of the Alcohol Advertising and Promotion Code, which prohibits representing regular alcohol consumption as ‘healthy or safe’. On that basis, the complaints board held that this had contravened the Alcohol Advertising and Promotion Code. It did not meet the high standard of social responsibility that alcohol suppliers are expected to take when advertising alcohol products.
19. NZ
MPI seeks comments on Biosecurity Act changes
On 19 September 2024, the NZ
Ministry for Primary Industries (MPI) proposed amendments to the NZ
Biosecurity Act 1993. The Biosecurity Act aims so manage harmful organisms,
pests and diseases, and assure trading partners of export quality.
According to MPI, the proposed
amendments are intended to modernize the Biosecurity Act and address issues
such as:
-
Funding
and compensation;
-
Import
Health Standard system improvements (including passenger processing and
biosecurity control areas);
-
Decision-making
processes, and ministerial authority to make decisions.
Submissions are open until 29
November 2024.
20. NZ MPI updates MRLs for agricultural
compounds
On 30 September 2024, the NZ MPI
updated Schedules 1 and 3 of the Food Notice: Maximum Residue Levels (MRLs)
for Agricultural Compounds. A new MRL has been set for penflufen, and
amendments have been made to the MRLs for piperonyl butoxide, glufosinate-ammonium
and mecoprop.
New Zealand sets its MRL’s separately
from Australia. In Australia, MRL’s are listed in Schedule 20 of the Food
Standards Code.
21. Updated exemptions from domestic
compositional requirements
On 25 September 2024, the NZ MPI
updated the Food for Export - Exemptions from Domestic Compositional
Requirements No. 21 2024 (Export Exemptions Notice).
The Export Exemptions Notice lists foods
that are exempt from New Zealand compositional requirements, including some
requirements under the Food Standards Code and New Zealand Food (Supplemented
Food) Standard 2016.
The Export Exemptions Notice has been updated to include new exemptions for dairy products exported to Cambodia, Korea, Barbados and Trinidad & Tobago.
22. NZ Commerce Commission releases Annual
Grocery Report
On 4 September 2024, the NZ Commerce Commission released its Annual Grocery Report, which aims to monitor and provide recommendations in relation to New Zealand’s major grocery retailers such as Foodstuffs and Woolworths.
The report, made under New Zealand’s Grocery
Industry Competition Act 2023, provides the following key findings and
updates:
-
No
meaningful competition has been created between 2019-2023
-
Retail
margins of large supermarkets have increased by 3.1% on average
-
Despite
the introduction of a mandatory Grocery Supply Code in 2023, many suppliers are
concerned about arrangements with retailers
-
The
NZ Commerce Commission has commenced investigating major retailers for
misleading pricing and incorrect charges at checkout, under the NZ Fair
Trading Act. Regulators in Australia have taken similar action, with the
ACCC commencing action against Woolworths and Coles for misleading pricing
-
The
NZ Commerce Commission will also investigate ‘land-banking’ and the potential
impact of underutilised sites on grocery competition
Related to these competition concerns,
the NZ Commerce Commission has also refused permission sought by Foodstuffs
North and South Island to merge and become a single entity.
United Kingdom
23. UK FSA recalls mustard contaminated with peanuts
On 30 September 2024 the United
Kingdom Food Standards Agency advised persons with a peanut allergy to avoid
consuming mustard, mustard powder or mustard flour due to peanut contamination.
The contaminated mustard ingredients
have been traced back to a supplier in India.
24. UK FSA consults on allergen guidance
On 3 October 2024 the UK FSA initiated
consultation on new best practice guidance for the provision of allergen
information by food businesses providing non-prepacked food.
Submissions are due by 27 November
2024.
European Union
25. EU
commission launches WTO consultations to challenge China’s investigation into
EU dairy
On 23 September 2024, the European Commission launched a consultation request at the World Trade Organisation (WTO) to challenge China’s anti-subsidy investigation concerning the imports of EU dairy products. On 21 August 2024, China launched an investigation against subsidies set by the EU on various dairy products such as liquid milk, cream and various cheeses.
According to the Chinese government, its investigation was based on the belief that EU has potentially violated trade rules and are protectionist in nature, which the European Commission denies. In response to the investigation, the EU challenged it on the grounds that it was based on questionable allegations and insufficient evidence and therefore amounts to an abuse of procedure.
26. European Commission pushes back
deforestation regulation
On 2 October 2024 the European Commission proposed to delay the implementation of its new Deforestation Regulations, which would have significant consequences for the food and beverage sector. The delay follows calls from industry to allow more time to prepare.
The new regulations are targeted at ensuring due diligence is done to confirm products are not produced on land subject to deforestation, and are now due to be implemented in December 2025. Previously, the laws were due to come into effect in December 2024.
27. Norwegian Competition Authority
fines supermarkets US$466 million following anticompetitive conduct
On 21 August 2024, the Norwegian Competition Authority (NCA) fined Norway’s three leading grocery chains (NorgesGruppen, Rema 1000, and Coop) the equivalent of US$466 million.
Norwegian competition law prohibits sharing price information which restricts fair competition. The NCA found that the supermarkets had engaged in prohibited price sharing since 2011. Each chain expected its competitors to follow price changes and incentivised parallel price increases.
United States
28. USDA updates guidelines for labelling meat and poultry
On 30 August 2024, the US Department of Agriculture (USDA) updated guidelines for validating claims about animal raising or environmental benefits in relation to meat and poultry products.
Animal raising
claims include claims such as ‘raised without antibiotics’, ‘grass-fed’ or
‘free-range’. The guidance also covers environmental claims such as ‘raised
using regenerative agriculture practices’ and ‘climate-friendly’. The updated
guidance puts forward new recommendations such as when negative antibiotic
claims should be made, routine sampling and testing programs that should be
implemented to detect antibiotic use.
29. US FDA updates domestic and imported
foods compliance program
On 26 September 2024, the US FDA updated
its Mycotoxins in Domestic and Imported Human Foods Compliance Program to
include monitoring activities for additional mycotoxins.
Mycotoxins are toxins that are produced
by fungi and are naturally occurring in moulds and can contaminate food. Mycotoxins
can have severe health effects as they are mutagenic and carcinogenic. The
program has been updated to include the monitoring of mycotoxins such as T-2/HT-2
toxins and zearalenone. These are mycotoxins produced by the fungi Fusarium
and are found in grains such as wheat, rye, oat and barely. T-2 and HT-2
mycotoxins can cause fever, gastrointestinal problems and hemorrhage.
30. US FDA invites public comment on proposed process for post-market assessment of chemicals in Food
On 25 September 2024, the US FDA conducted a public meeting concerning an ongoing development of a process for post-market assessment of chemicals in food. The FDA wanted to align federal processes with steps taken by state legislatures such as the California Food Safety Act, which increased regulation of food additives and banned four food additives in California. The FDA is proposing a three-stage process to post-market assessment:
1)
Food
Chemical Signal Monitoring
FDA identifies
new information on food chemicals such as through FDA submissions, scientific
publications as well as US and international regulatory activities.
2)
Triage
Based on
the information obtained through food chemical signal monitoring, FDA conducts
a preliminary quality and impact assessment of information. This is to
determine whether a post-market assessment is necessary.
3) Fit-for-purpose decision
FDA
decides on whether a focused or comprehensive assessment is needed based on the
complexity of the assessment. Focused assessments can take between 4 months to
1 year whereas comprehensive assessments can take years to complete.
Submissions close on 6 December 2024.
31. California bans octopus farming
On 27 September 2024 the US State
of California enacted a new law prohibiting the farming of octopus on land and
in water, as well as the sale of farmed octopus. The California Oppose Cruelty
to Octopuses (OCTO) Act is the second of its kind in the world, and aims to
protect octopus welfare and other ecological concerns.
The use of antibiotics in aquaculture
has been linked with the development of multidrug-resistant bacteria. Advocates
for the law claim that intense octopus farming lead to unnatural and
unfavorable behaviours in octopus, such as aggression and cannibalism.
Indonesia
32. New halal rules introduced
On 17 October 2024, new rules
will come into effect in Indonesia as a result of law 33/2014 on Halal Product
Assurance. The law will expand the range of products and services that require
halal certification to stay in the Indonesian market. The laws relate to
processes such as slaughtering, processing, storage, packaging, marketing,
transport and presentation.
The Halal Product Assurance Organizing Agency will also be introduced as part of this law, which will also administer labelling and segregation of halal and non-halal products.
This is general information rather than legal advice and is current as of 7 Oct 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.