Current developments in food law and policy in Australia and internationally (November 2024)
Current developments in food law and policy in Australia and
internationally
By Joe Lederman and John
Thisgaard (FoodLegal Co-Principals)
© Lawmedia Pty Ltd, November 2024
Australian and
New Zealand regulatory developments
1. AICIS seeks
comments on timeline for amendments to Industrial Chemicals Categorisation
Guidelines
In October 2024 the Australian Department
of Health opened consultation on its proposed timeline for implementing changes
to the Industrial Chemicals Categorisation Guidelines (Guidelines).
The Guidelines include guidance
for manufacturers or importers of industrial chemicals in determining which
pre-market approval steps apply to their product.
The Guidelines were introduced
in 2020. The Department of Health intends to update the Guidelines in September
2025, and annually thereafter unless more urgent change is required.
Submissions are due by 5 December 2024.
2. NHMRC seeks
public comment on new draft guidance in Australian Drinking Water Guidelines
In October 2024, the National
Health and Medical Research Council (NHMRC) requested submissions on the treatment
of Per- and Polyfluoroalkyl Substances (PFAS) under the Australian
Drinking Water Guidelines.
PFAS can damage the immune
system, the liver and can cause cancer. Under the proposed changes, the limits
of various PFAS have been reduced and new limits have been introduced,
including:
·
The limit for Perfluorooctanoic acid has been reduced from 560 ng/L to
200 ng/L
·
The limit for perfluorooctane sulfonate ratio relative to other PFAS
limit has been reduced
·
A new limit of 1000 ng/L has been introduced for Perfluorobutane
sulfonate.
Submissions close on 22 November
2024.
3. ABAC panel
finds ‘Knickers Agave Spirit’ appealed to minors
On 30 September 2024, the Alcohol
Beverages Advertising Code (ABAC) adjudication panel found that
Bunster’s social media advertising of its product ‘Knickers Agave Spirit’, was
in breach of the ABAC Code.
A complaint was raised that the
alcoholic beverage was advertised as a chocolate bar and likely to be confused
as such. The complaint was upheld by the ABAC Panel. The ABAC Panel found that
the beverage was advertised to be strongly related to a confectionary product
that is familiar and popular with minors. On that basis, it had a strong appeal
to minors. The company deleted the Instagram post in response.
Food and beverage businesses
should be mindful when marketing alcoholic beverages in association with
confectionary items and FoodLegal can advise on such matters.
4. Consultation on
draft amendments to the Gene Technology Act
In September 2024, the Department of
Health and Aged care, following a review by the Gene Technology Standing
Committee, prepared the Gene Technology Amendment Bill 2024. The draft bill
seeks to amend the Gene Technology Act 2000 (Cth).
The draft bill would introduce
the following changes to Australia’s regulation of genetic technology:
·
GMOs should be classified into risk-based categories
·
GMO permits should be assessed more quickly
·
Civil and criminal penalties for breach of certification and
accreditation conditions
Submissions closed on 8 November 2024.
New Zealand
5.
New Zealand implements
new advertising rules
On 1 November 2024, substantial
changes to the advertising codes overseen by the New Zealand Advertising
Standards Authority took effect. The changes are as follows:
a. The Food and Beverage Advertising code, which replaces the existing provisions in the Advertising Standards Code;
b. The Children’s Advertising Code, which replaces the previous Children and Young People’s Advertising Code; and
c.
Modification
of two rules in the existing Advertising Standards Code, which are covered in
the new Food and Beverage Code.
6.
The Ministry
for Primary Industries (MPI) extends consultation on proposed changes for
importing food and fibre plants for planting
On 23 October 2024, the NZ Ministry
for Primary Industries (MPI) extended the length of a consultation for
proposed changes to options for importing food and fibre plants for planting.
The proposed amendments include changes to
quarantine duration as well as location for inspections. The original consultation
end-date was 20 December 2024, which has now been extended to 31 March 2025.
7.
NZ MPI
updates import requirements for animal products
The New Zealand MPI has made the following amendments
to the requirements for animal products which are imported into New Zealand:
·
On 31
October 2024, the MPI updated its Animal Products Notice: Sampling Regimes
for Monitoring. The notice replaces the previous version issued on 23 May 2024 under
section 167(2) of the Animal Products Act 1999. The notice is relevant for food
businesses exporting farmed or hunted red meat animals, poultry, fish or bee
products to NZ. The notice involves a number of procedural changes, largely relating
to sampling numbers.
·
On 29
October 2024, the MPI updated its Animal Products Notice: Maximum
Permissible Levels. This notice replaces the previous one issued on 30 January
2023. The notice is relevant for anyone exporting animal material or animal
products intended for human consumption to NZ, other than dairy products. The
new notice revises schedule 1: Specified maximum permissible levels and
schedule 2: Veterinary medicines where no maximum permissible levels apply.
Food Standards
Australia New Zealand (FSANZ) News
8.
FSANZ seeks submissions
on Application A1269 – Cultured quail as a novel food
On 12 November 2024 FSANZ invited submissions from
industry with respect to Application A1269 by Vow Group Pty Ltd to permit cell-cultured
quail as a novel food.
Submissions are due by 24 December 2024.
9.
FSANZ commences
assessment of Application A1318 - Steviol glycosides produced by enzymatic
conversion
On 11 November 2024 FSANZ commenced its assessment
of Application A1318 by Sichuan Ingia Biosynthetic Co., Ltd. to permit rebaudioside
M (a steviol glycoside) produced by the enzymatic conversion method, using
enzymes derived from genetically modified Escherichia coli BL21.
FSANZ will announce an opportunity to comment at a later
date.
10. FSANZ approves amendments to Food Standards Code
On 8 November 2024 FSANZ approved amendments to
the Australia New Zealand Food Standards Code (Food Standards Code)
arising out of the following Applications:
·
Application
A1260 - 2-methyloxolane as a processing aid
·
Application
A1289 - Food derived from disease-resistant, low-reducing sugars and reduced
browning potato line BG25
·
Application
A1291 - Glucoamylase from GM Aspergillus niger (gene donor: Gloeophyllum
sepiarium) as a processing aid
FSANZ has notified the Food Ministers’ Meeting of its
approval. The Food Ministers’ meeting has 60 days to either request
FSANZ to review its decision, or inform FSANZ it does not intend to request a
review.
11. FSANZ commences assessment of Application A1314 –
Permitting small dogs and cats in aircraft cabins
On 7 November 2024 FSANZ commenced its assessment
of Application A1314 by Virgin Australia to permit companion animals (small
dogs and cats) to accompany their owners aboard airline cabins under controlled
conditions.
The reason for FSANZ involvement is to assess the risks
associated with existing food safety systems or the modifications for safety
plans.
FSANZ will announce an opportunity to comment at a later
date.
12. FSANZ calls for comment on Application A1299 - Fructosyltranserase
from Aspergillus oryzae as a processing aid
On 7 November 2024, FSANZ called for comment on
Application A1299 to permit immobilized fructosyltransferase (EC 2.4.1.9) from Aspergillus
oryzae as a processing aid. The application, made by Tate and Lyle
Solutions USA LLC, would permit the substance as a processing aid in the
manufacture of short-chain fructooligosaccharides from sucrose.
Submissions are due by 5 December 2024.
13. FSANZ commences assessment of Application A1315 for food
additives derived from mushrooms
On 29 October 2024 FSANZ commenced its assessment
of Application A1315 by Chinova Bioworks Inc to permit the use of chitosan and
beta-1,3-glucans from Agaricus bisporus (white button mushrooms) as a
food additive in food and beverage products.
FSANZ will announce an opportunity to comment at a later
date.
14. Amendments to Food Standards Code gazetted
On 29 October 2024 amendment no. 233 was gazetted.
The amendment incorporates amendments to the Food Standards Code arising from
the following Applications and Proposal:
·
Application
A1247 - D-allulose as a novel food
·
Application
A1284 - Triacylglycerol lipase from GM Trichoderma reesei as a processing aid
·
Proposal P1063
- Code revision (2024) – Added sugar(s) claims
On 17 October 2024 amendment no. 232 was gazetted,
which includes amendments to the Food Standards Code arising from Application
A1287 - Food derived from short-stature corn line MON94804.
15. FSANZ calls for submissions on Application A1302 for food
made from a GM corn line
On 22 October 2024, FSANZ called for submissions
with respect to Application A1302 by Syngenta Australia Pty Ltd to permit the
sale and use of food made from a new genetically modified (GM) corn line
MZIR260. The corn line has been modified to be resistant to lepidopteran insect
pests, including fall armyworm.
Submissions are due by 4 December 2024.
Australian Competition and Consumer Commission (ACCC)
News
16. ACCC publishes “free range” labelling guidance
for poultry businesses impacted by bird flu
On 13 November 2024 the ACCC published
guidance for the making of ‘free range’ claims on poultry products where
suppliers have been impacted by an outbreak of the deadly avian influenza H5N1
in Australia.
According the guidance, poultry producers affected
by a H5N1 government housing order will have a 90-day grace period where they
can continue selling products with ‘free range’ labelling without a risk of enforcement
action by the ACCC.
17. ACCC brings proceedings against Magnamail for
alleged promotional misrepresentations
On 8 November 2024, the ACCC commenced proceedings
against Magnamail in the Australian Federal Court for allegedly making false or
misleading representations in contravention of the Australian Consumer Law.
The ACCC alleges that Magnamail falsely represented that
if consumers ordered certain products from its catalogues, they would be
eligible to enter into a draw to win cash prizes of up to $25,000 or other
prizes such as iPads or jewellery. However, in fact the prizes had already been
drawn and new customers were not eligible for a major prize.
Although this case does not concern a food business, food
businesses should be careful when offering special incentives or rewards to new
customers. Trade promotions including prize draws are also subject to
additional State and Territory requirements.
18. ACCC approves mergers in food and pharma industries
The ACCC has approved the following corporate acquisitions:
·
On 1
November 2024 the ACCC stated it would not oppose Sanitarium’s proposed
acquisition of the brand and intellectual property assets necessary for the
supply of Vita Brits from Nestle. The ACCC concluded that the acquisition would
not substantially lessen competition as Vita Brits is unlikely to be a strong
competitive constraint on existing Sanitarium brand Weet Bix in the absence of
the acquisition.
·
On 7
November 2024 the ACCC stated it would not oppose a proposed merger between
Sigma Healthcare and Chemist Warehouse, subject to a court-enforceable
undertaking that Sigma (which is a pharmaceutical wholesaler and franchisor) would
allow existing franchisee pharmacies to exit existing franchise arrangements.
The ACCC concluded that the merger would not substantially lessen competition
as sufficient retail pharmacies and distribution channels will remain to ensure
competition and multiple levels in the supply chain.
United States
19. FDA, NIH and CDC releases consensus statement
on infant formula and Necrotizing Enterocolitis
On 3 October 2024, the US Food and Drug
Administration (FDA), the Centre for Disease Control (CDC) and
the National Institute of Health (NIH) issued a consensus statement
regarding allegations of a link between infant formula and necrotizing
enterocolitis (NEC).
NEC is a condition in infants where the
intestine tissue lining becomes inflamed and dies, making an infant vulnerable
to life-threatening illness. NEC is one of the leading causes of pre-term
infant mortality. Some studies had suggested a higher correlation between
infant formula consumption and NEC risk, and some lawsuits in the US had been
filed on this basis.
The FDA has now clarified that infant formula
consumption does not actually cause NEC but rather that mother’s milk and donor
milk provides the greatest degree of protection against NEC.
20. USDA update on guidance for animal raising
and environmental claims
On 10 September 2024, the United
States Department of Agriculture Food Safety and Inspection Service (USDA
FSIS) updated its guideline on ‘Substantiating Animal-Raising or
Environment-Related Labelling Claims’.
Under the updated guidance, food businesses
are strongly encouraged to use third-party certifiers to substantiate
animal-raising claims. Labels that truthfully display a third-party certifier’s
name, logo and website do not need to further explain their certification on
the product label. The guidance also encourages the use of additional
documentation to substantiate animal-raising claims such as “pasture-raised”,
“pasture-fed” or “pasture grown”.
21. FDA releases policy guideline on adulteration
in fish and fishery products
On 1 November 2024, the US FDA
released a final compliance policy guide on FDA attitudes on adulteration of
fish and fishery products with Scombrotoxin (histamine). The guideline is aimed
at protecting consumers from the effects of scrombrotoxin fish poisoning by
taking action against products that have a lower level of histamine than the
earlier thresholds.
Scrombrotoxin poisoning is caused by spoilage
that forms from bacteria, and it is more likely in certain fish species such as
tuna and mahi-mahi. Good hygiene practices such as rapidly chilling fish and
maintaining appropriate time and temperature controls can prevent scrombrotoxin
poisoning.
22. FDA extends comment period for sodium
reduction guidelines
On 1 November 2024, the US FDA extended
the comment period for its voluntary Phase 2 sodium reduction goals. The
voluntary goals, released on 15 August 2024, are designed to support a maxim
daily sodium intake of 2,750 mg- which is 20% lower than the target outlined in
Phase 1. However, this target is still higher than the recommended maximum
intake of 2300 mg/day.
The initial comment period was open until 14
November 2024. However, the time has now been extended to 13 January 2025.
23. FDA releases supplement to the Food Code
On 4 November 2024, the US FDA has
released the ‘Supplement to the 2022 Food Code’. The supplement is an update to
the 2022 Food Code. It is aimed that reducing the risk of foodborne illness in
retail and foodservice business.
Some of the new updates include:
·
New
provisions on disinfecting food contact surfaces as well as non-food contact
and equipment surfaces
·
Updating
testing requirements for food employees diagnosed with various foodborne
illnesses such as Salmonella
·
Clarifications
on container refill and re-use.
China
24.
China to lift ban on Australian lobster
imports by end of 2024
During October 2024, the Australian
Government announced the China has promised to lift a ban on Australian rock
lobsters by the end of 2024. The industry has struggled since the imposition of
trade restrictions against Australia in 2020 and 2021. China has removed
tariffs on other Australian products such as wine, coal and barley since then.
Indonesia
25. Indonesia
implements new quarantine requirements for dairy exports
On 1 October 2024, the Indonesian
Quarantine Authority (IQA) issued new quarantine rules on milk and milk
product exports to Indonesia.
Australian businesses must comply with the
new rules, which include new requirements to submit prior notice of exports to
IQA. A prior notice must include documentation such as a health/sanitary/
phytosanitary certificate, GMO status and information on testing laboratory
accreditation.
United Kingdom
26. UK abandons plans for mandatory “not for EU”
labelling
On 30 September 2024 the UK Government
announced that it will not proceed with plans to introduce mandatory ‘not for
EU’ labelling for meat and dairy products.
The UK Government cited concerns the law
would increase manufacturing costs, damage exports and degrade marketing. The law
was planned to apply to a broader range of products from July 2025.
The labels are already being enforced on
products in Northern Ireland, to prevent British products from entering.
27. UK updates guidance on Extended Producer
Responsibility
On 15 October 2024, the UK Department
for Environment, Food & Rural Affairs updated its guidance: ‘Extended
producer responsibility for packaging: report packaging data’.
In this context, ‘extended producer
responsibility’ means the organisations responsible for producing packaging
waste will be responsible for dealing with the costs.
The guidance explains which organisations the
new regulations apply to, as well as the information that must be collected and
submitted and the fees that apply.
28. UK FSA launches sandbox program for
cell-cultivated products
On 8 October 2024 the UK Food
Standards Agency (FSA) launched a sandbox program for cell-cultivated
products such as cell-based meat, in collaboration with Food Standards Scotland
(FSS).
No cell-cultivated foods are currently permitted for use in the UK at the date of this article (November 2024). The sandbox program is intended to collect data on cell-cultivated products as well as conduct safety tests and develop safety programs. It is intended that framework can then be used to more quickly process applications by businesses for cell-cultivated products.
This is general information rather than legal advice and is current as of 13 Nov 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.