FoodLegal

Current developments in food law and policy in Australia and internationally 

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

© Lawmedia Pty Ltd, December 2024 

Food Standards Australia New Zealand (FSANZ) News

1.      Food Minister’s meeting updates

The Food Ministers meeting, which oversees the Australian and New Zealand food regulation system, met on 15 November 2024. Members include the Australian and New Zealand federal governments, as well as representatives from each Australian state and territory government. Key outcomes from the November 2024 meeting include:

-        Approval of an amended policy guideline on infant formula products. The updated policy guideline has an expanded definition of ‘infant formula product’ and requires the regulation of cell-based human milk products to be consistent with traditional infant formula products, but does not create any regulatory change;

-        Recommending that FSANZ review the aspects of the Australia New Zealand Food Standards Code (Food Standards Code) that regulate the composition and labelling of toddler milk, to reflect latest evidence and international approaches;

-        Noted the development of work on Nutritional Information Panels (NIP). See development 4 below for further details;

-        Agreeing to delegate oversight of the Health Star Rating Advisory Committee, which will explore mandating the Health Star Rating system, to the Food Regulation Standing Committee (FRSC);

-        The FRSC will prioritise work on commercial foods for infants and young children prior to the next Food Ministers Meeting.

2.     FSANZ calls for comment on Application A1279 shiitake mushroom as a processing aid

On 2 December 2024, FSANZ called for submissions for Application A1279 to permit fermented Lentinula edodes (shiitake mushroom) mycelia as a processing aid. The preparation is intended to be used to aid the fermentation of pea and rice protein.

Submissions are due by 28 January 2025.

3.     FSANZ calls for comment on Application A1308 Genetically modified E Coli in infant formula products

On 26 November 2024, FSANZ called for submissions on Application A1308 by Kyowa Hakko Bio Co Ltd to amend the Food Standards Code to permit the use of 2′-fucosyllactose sourced from genetically modified Escherichia coli W as a nutritive substance in infant formula products.

Submissions are due by 24 December 2024.

4.     FSANZ calls for comment on Application A1311 prolyl oligopeptidase from GM Trichoderma reesei as a processing aid

On 12 December 2024, FSANZ called for comment on an application made by IFF Australia Pty Ltd, to amend the Food Standards Code to permit the use of propyl oligopeptidase from GM Trichoderma reesei as a processing aid in the production of brewed beverages.

Submissions are due by 24 January 2025.

5.     FSANZ calls for comment on the use of nutritive substance in infant formula

On 12 December 2024, FSANZ called for comment on an application by Arla Foods Ingredients Group P/S to permit the use of a nutritive substance in infant formula products. The applicant proposes using Bovine milk fat globule membrane-enriched whey protein concentrate (MFGM-WPC) in infant formula, which contains proteins and lipids common in both human and cow milk.

Submissions are due by 6 February 2025.

6.     FSANZ calls for information on nutrition labelling

On 22 November 2024, FSANZ called for information from interested stakeholders to guide its work on front and back-of-pack nutrition labelling. FSANZ is undertaking:

·        preparatory work to on mandating the Health Star Rating (HSR) system

·        a review of the nutrition information panel (NIP).

Submissions close on 17 January 2025.

7.     Applicant withdraws Application A1309 - Specification for lacto-N-tetraose (LNT) from GM Escherichia coli K-12 in infant formula products

On 11 November 2024, FrieslandCampina Ingredients B.V. withdrew its Application A1309 to amend the specification for lacto-N-tetraose (LNT) sourced from a permitted genetically modified source of Escherichia coli K-12.

The Application had previously undergone a preliminary administrative assessment by FSANZ on 8 August 2024.

Australian Competition and Consumer Commission (ACCC) News 

8.     Koala pays penalties for misleading representations about consumer guarantees

On 25 November 2024, the ACCC announced that furniture retailer Koala paid penalties totalling $56,340 for making false or misleading statements regarding consumers’ rights to remedies for faulty products.

Although this case did not concern a food business, it demonstrates the need for businesses to be aware of their obligations when it comes to statutory consumer guarantees.

Koala had incorrectly represented that consumer rights to remedies were limited to a 72-hour period (or the period of the manufacturer’s warranty), and that Koala could choose the remedy for faults. Further, Koala also wrongly informed consumers that delivery charges were not refundable, when under the Australian Consumer Law consumers actually have right to compensation for damage arising from failure to comply with a consumer guarantee – this could include reimbursing delivery fees.

Koala has provided an undertaking to the ACCC that it will provide compensation to consumers, which will amount to up to 20% of the purchase price.

9.     ACCC commences proceedings against Webjet for making false and misleading representations about price

On 28 November 2024, the ACCC announced it initiated proceedings in the Australian Federal Court against travel site Webjet for making false and misleading statements. The ACCC alleges that Webjet made statements on its app, social media platforms and website about the minimum price of airfares. Allegedly, these representations omitted compulsory fees charged by Webjet.

The ACCC claims that Webjet’s “flights from $x” representations excluded a service fee and ‘booking price guarantee fee’, which ranged from $34.90 to $54.90 per booking. The ACCC is also alleging that in the event these fees were disclosed, they were hidden in fine print at the bottom of the relevant communication, and were not sufficiently clear or prominent.

This action follows the ACCC’s recent regulatory action against Woolworths and Coles for allegedly making misleading price representations. This case demonstrates the need for businesses to ensure that the way they communicate prices is not misleading, especially in an online setting.

10.  Federal Court orders Meg’s Flowers Pty Ltd to pay $1 million AUD in penalties

On 12 December 2024, the Australian Federal Court ordered online florist Meg’s Flowers Pty Ltd to pay penalties of $1 million for engaging in misleading and deceptive conduct, in contravention of the Australian Consumer Law.

In May 2023, the ACCC commenced proceedings against Meg’s Flowers for allegedly making misleading and deceptive representations that it was a local florist through 156 websites and 7462 google advertisements. In fact, Meg’s Flowers did not maintain any local physical storefronts and fulfilled orders through a centralised distribution network which occasionally used subcontractors.

Other Australian regulatory news 

11.  Advertisement of fast-food meal found to not undermine healthy lifestyles

On 20 November 2024 Ad Standards dismissed a complaint made against Yum Restaurants for allegedly promoting excess consumption of a KFC burger pack, in breach of the AANA Food & Beverages Code.

Yum Restaurants had placed a billboard ad, with visual emphasis (through a solid red underline) on the $9.95 price and the statement “bang for your buck every day”. The complaint alleged, in part, that this promoted consumption of the product every day.

However, Ad Standards dismissed the complaint, in part because the term “every day” should be read as referencing the fact that the $9.95 price was available every day. Importantly, Ad Standards determined that there was no call to action to consume the meal every day.

12.  Ad Standards dismisses complaint for comparative Kellogg’s claim

Ad Standards has dismissed a complaint made against Kellogg’s for allegedly making a misleading comparative claim, which would be in breach of the AANA Food and Beverages Code. The online advertisement made the standalone claim “Kellogg’s Special K Lower Sugar”, in addition to an identically-worded claim that also linked to a disclaimer within the product description stating:

“*Compared to Special K Original which contains 13.9g of sugar per 100g. On average, a 40g serve of special K Lower Sugar contains 3.8G of sugar.”

While the complaint claimed Kellogg’s should have compared a 40g serve with a 40g serve (or a 100g serve with a 100g serve), Ad Standards determined that the average consumer would be an adult interested in finding out the nutritional information of this product type. Ad Standards also determined that the average target consumer would be able to differentiate between two different product weights, and therefore unlikely to be misled by this advertisement.

However, the Community Panel also noted it would be best practice for Kellogg’s to have this information readily available, so that consumers are not required to do calculations themselves.

13.  ABAC recent determinations

The Alcohol Beverages Advertising Code scheme (ABAC) Adjudication Panel has made the following recent determinations:

a)     Upheld a complaint against Beechworth-based brewer Billson’s, whose “1990’s Vodka” social media post had ‘strong or evident appeal to minors’. The Panel decided this in part because the post made multiple references to ‘nerds’ confectionary products, which are commonly consumed by minors. Although ABAC had pre-vetted the products that were being advertised, it had not pre-vetted the specific social media post.

b)     Dismissed a complaint against Endeavour Group for promoting its brand Dan Murphy’s on television. The complaint alleged that references to purchasing multiple alcoholic products, including over the Christmas period, constituted promotion of excessive alcoholic consumption. ABAC determined that the individual guests in the commercial were not excessively consuming alcohol, and that no person appears affected by alcohol. ABAC decided it was unlikely a reasonable person would take the message of the ad to be the encouragement of excessive or irresponsible levels of alcohol consumption.

14.  APVMA public consultations

The Australian Pesticides and Veterinary Medicines Authority (APVMA) has published three public consultations:

·        On 12 December 2024, the APVMA opened consultation on its revised stakeholder engagement model. The proposed model involves a more streamlined engagement process, based on the findings of APVMA’s 2024 stakeholder and public survey. Submissions close on 7 February 2025.

·        On 10 December 2024, the APVMA opened consultation on its trade advice notice on products containing antimicrobials to promote growth in cattle and sheep for European markets. Submissions close on 31 January 2025.

·        On 13 December 2024, APVMA opened consultation on the proposed use of Cyclobutrifluram in the product Victrato Tymirium technology Seed Treatment for use on wheat and barley. Submissions close on 24 January 2025.

15.  Australian Senate rejects Food Donations Bill

On 15 November 2024, the Senate Economics Committee rejected the Tax Laws Amendment (Incentivising Food Donations to Charitable Organisations) Bill 2024 (Food Donations Bill). The Food Donations Bill proposed offsets for companies donating excess food to food relief organisations.

The Senate Economics Committee was concerned about the extent of the tax concessions proposed under the Food Donations Bill. The proposed concessions would have covered the cost incurred by a company’s food donation activities with a cap of $5 million or a percentage of food donation costs. The percentage of food donation costs would depend on the annual turnover of the business.

Food relief charities have expressed frustration with the decision of the Senate Economics Committee to reject the Food Donations Bill rather than recommend amendments.

16.  NSW Food Authority seeking comment on draft food regulation

On 25 November 2024, the NSW Food Authority proposed updates to the NSW Food Regulation 2015. The changes proposed for the draft 2025 Food regulation include:

·        New licensing requirements for berry, leafy vegetable and melon growers

·        A new industry plant products consultative committee

·        Laboratories must notify certain analysis results to the food authority for early detection of food safety issues

·        New fee for business intending to resume operation after prohibition orders arising from serious food safety breaches

The NSW Food Authority is seeking submissions on the proposed changes by 22 December 2024.

17.  New merger laws introduced

On 28 November 2024 the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 (Mergers Bill) passed Australian Parliament.

The Mergers Bill will introduce a new regulatory framework for mergers from 1 January 2026. Under the new framework, all mergers above a specified threshold will need to receive clearance from the ACCC. The ACCC assessment process will also be updated to require additional reporting and give the ACCC additional tools to deal with ‘serial acquisitions’.

New Zealand

18.  NZ Commerce Commission initiates proceedings for misleading pricing

On 10 December 2024, the New Zealand Commerce Commission filed separate criminal charges against supermarkets Woolworths NZ, Pak’nSave Silverdale and Pak’nSave Mill Street for allegedly inaccurate pricing and misleading specials. The conduct allegedly breached the NZ Fair Trading Act.

The ACCC recently initiated proceedings against Woolworths and Coles in Australia for similar alleged conduct.

19.  NZ MPI seeks comments on proposed changes to maximum residue limits

On 9 December 2024, the New Zealand Ministry for Primary Industries (MPI) called for comments on proposed changes to the Maximum Residue Limits (MRLs) for agricultural compounds. The proposed amendments include:

-        Amending the MRLs for Diflufenican, Pydiflumetofen and Tetracyclines; and

-        Setting MRLs for Hydrocortisone Aceponate.

Submissions close 10 February 2025.

20.  NZ suspends all poultry exports following bird flu outbreak

On 3 December 2024, the New Zealand government suspended all poultry exports.

The suspension follows the discovery of a strain of bird flu (H7N6) in Otago on New Zealand’s South Island on 2 December 2024. The New Zealand MPI has taken steps to contain the outbreak, including culling birds on the affected property and establishing a buffer zone.

European Union (EU)

21.  EU reaches provisional agreement on European Deforestation Regulation (EUDR)

On 3 December 2024, the EU Council and European Parliament reached a provisional agreement to postpone the application and implementation of deforestation measures for 12 months.

This was partially due to strong opposition from countries such as Indonesia, Brazil and Malaysia. The EUDR requires certain commodities and products (e.g. cattle, cocoa, soy, palm oil and coffee) and their derivatives sold in the EU to not have been sourced from deforestation areas.

The regulation will now come into effect on 30 December 2025.

United Kingdom

22.  UK parliament introduces legislation mandating folic acid fortification in wholemeal wheat flour

On 14 November 2024, the UK parliament passed legislation which requires non-wholemeal wheat flour to be fortified with folic acid to protect infant health.

Folid acid deficiency contributes to around 200 cases of neural tube defects and causes conditions such as spina bifida. The UK National Health Service (NHS) already recommends folic acid supplements for women intending to get pregnant and for 12 weeks after becoming pregnant. This recommendation will continue even after the mandatory fortification requirements are introduced.

Fortification will become mandatory from the end of 2026.

United States

23.  US FDA updates guidance on food imports

On 14 November 2024, the US Food and Drug Administration (FDA) issued an updated guidance for industry on the FDA’s voluntary qualified importer program (VQIP). Under the Food Safety Modernisation Act, the FDA must establish a voluntary and fee-based program for the FDA to review food imports in an expedited manner. The program is designed to ensure that importers meet US food safety standards and preventative controls.

The guidance includes information on:

·        Benefits for VQIP importers

·        Eligibility criteria for VQIP participation

·        VQIP applications

·        Circumstances that can lead to VQIP revocation.

24.  US Supreme Court rejects appeal on tobacco labelling

On 26 November 2024, the US Supreme Court declined to hear an appeal on a challenge to a federal US law requiring warning labelling on cigarette packs.

The appeal was made by the tobacco company R.J. Reynolds after the 5th U.S. Circuit Court of Appeals found the warnings do not violate the first amendment right to freedom of speech. The federal law requires tobacco companies to display labelling such as pictures of smoke-damaged lungs and a picture of a woman with a large cancerous growth on her neck.

R.J Reynolds argued the image was misleading as a patient would see a doctor before the growth reached that size. This argument was rejected by the U.S. Circuit Court of Appeals. The FDA’s position is that the imagery represents accurate risks of smoking.

25.  USDA and FDA seek date marking information

On 2 December 2024 the United States Department of Agriculture (USDA) and FDA issued a joint Request for Information regarding date labelling. The request covers terms such as “best by” and “use by”, and asks various questions to help the USDA and FDA understand more about industry and consumer attitudes to date marking.

According to FDA Deputy Commissioner for Human Foods, Jim Jones, about 20% of food waste at home is caused by confusion as to date labelling terms.

Submissions are open to 3 February 2025.

26.  FDA issues request for information for PFAS in seafood

On 20 November 2024, the US FDA opened a request for information to fill data gaps in perfluoroalkyl and polyfluoroalkyl substances (PFAS) in seafood.

The FDA is seeking scientific data from various stakeholders and expert bodies such as academia, industry, government agencies and others on PFAS concentrations in food. The FDA also seeks information on strategies to reduce exposure to PFAS in seafood. The FDA is particularly concerned about seafood due to a total diet study which revealed that seafood faces greater risk of PFAS contamination than other food categories.

Submissions close on 18 February 2025.

27.   FDA issues guidance for infant formula supply shocks

On 2 December 2024, the US FDA released a draft guidance on how infant formula manufacturers should notify the FDA if there is an interruption of production such that it meaningfully disrupts the infant formula supply in the US.

The guidance: Draft Guidance for Industry: Notifying FDA of a Permanent Discontinuance in the Manufacture or an Interruption of the Manufacture of an Infant Formula, outlines requirements and procedures that infant formula manufacturers should follow in those circumstances. A key requirement is that infant formula manufacturers should notify the FDA of a permanent discontinuance or interruption to production and the reasons for the occurrence within 5 business days.

Submissions are open until 3 February 2025.

China

28.  China lifts suspensions on Australian beef exports

In December 2024 China lifted its remaining suspensions on two Australian meat processing facilities, allowing the full resumption of red meat exports to China. Eight beef processing facilities have had their trade suspensions lifted during 2024.

China is the second largest market for export of Australian beef, with the value of Australian beef exports to China sitting at approx. AUD$2.2 billion in 2023-24.

Egypt

29.  Egypt extends time to implement halal certification requirements for milk imports

On 13 November 2024, the Egyptian Ministry of Agriculture and Land Reclamation extended the period where milk and milk products can be imported into Egypt without halal certification.

Australian dairy exporters now have until 31 December 2025 to liaise with their Egyptian importer to confirm requirements and register with IS EG halal.

This is general information rather than legal advice and is current as of 16 Dec 2024. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.