
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.

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

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

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.