FoodLegal

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

© Lawmedia Pty Ltd, March 2025 

Australian food regulatory news 

1.     ACCC enforcement priorities released!

On 20 February 2025, the ACCC has released its enforcement priorities for 2025-2026. The current priorities most relevant to food and other FMCG businesses are as follows:

·        Competition issues in the supermarket and retail sector, focussing on firms with market power and conduct that impacts small business.

·        Consumer and fair trading concerns in the supermarket and retail sectors, with a focus on misleading pricing practices.

·        Competition, product safety, consumer and fair trading issues in the digital economy, with a focus on misleading or deceptive advertising within influencer marketing, online reviews, in-app purchases and unsafe consumer products.

·        Misleading surcharging practices and other add-on costs.

·        Unfair contract terms in consumer and small business contracts, with a focus on harmful cancellation terms, including those associated with automatic renewals, early termination fee clauses and non-cancellation clauses.

·        Improving industry compliance with consumer guarantees.

·        Consumer product safety issues for young children.

ACCC enforcement actions will be more focused towards those priorities, as well as enduring priorities such as anticompetitive conduct, product safety, protecting vulnerable consumers, small businesses and scams.

2.     ACCC sweep of ecommerce sites uncovers possible consumer law breaches

On 4 February 2025, the Australian Competition and Consumer Commission (ACCC) announced it had conducted a sweep of over 2000 internet businesses retail websites. As part of the sweep, the ACCC identified a number of return policies and website terms and conditions that the ACCC considered had possibly breached the Australian Consumer Law (ACL).

According to the ACCC, many terms were inconsistent with consumer guarantees provided under the ACL, which cannot be amended by any contractual terms. Online representations included:

-        Limiting the time available for refunds;

-        Imposing blanket ‘no refund’ conditions on sales or specialised items;

-        Referring to manufacturer warranties as the only avenue for consumers to claim remedies for faulty goods; and

-        Restricting consumers’ right to remedies, including stating that delivery fees paid for faulty items were non-refundable and charging restocking fees if customers returned faulty items.

As a result of the sweep, the ACCC has sent warning letters to several business.

3.     ACCC denies authorisation on infant formula marketing restrictions

On 6 February 2025, the ACCC has made a final decision and denied authorisation sought by the Infant Nutrition Council to restrict advertising of infant formula products. The ACCC previously indicated on 20 September 2024 that they intended to make this decision.

The Infant Nutrition Council sought authorisation for the Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement (MAIF Agreement), which restricts marketing of infant formula up to 12 months of age.

In making its decision, the ACCC took into account the voluntary nature of the MAIF Agreement, its limited scope, and its limited capacity to capture modern digital marketing. The Australian Federal Government is considering implementing a mandatory version of the MAIF agreement.

In our November 2024 edition of FoodLegal Bulletin, we discussed implications for infant formula marketing arising from a mandatory MAIF agreement.

4.     ACCC takes action against Magnamail in relation to trade promotion involving prizes eligibility claims

On 8 November 2024, the ACCC instituted proceedings against Magnamail for allegedly making false or misleading claims in relation to "pre-draw" promotions.

Between May 2022 and July 2023, Magnamail allegedly made misleading statements that if customers ordered certain products, they had the right to claim or were eligible for a prize up to $25,000. However, at the time of the representations, the prizes had already been drawn.

The ACCC is seeking declarations, penalties, costs, injunctions and other orders against Magnamail and its parent company: Direct Group.

This decision has potential implications for many trade promotions. In addition, companies that use trade promotions should also be aware of compliance requirements under State laws. FoodLegal can advise for particular situations.

Other Australian food regulatory news

5.     New advertising industry environmental claims code takes effect

On 1 March 2025, the new Australian Association of National Advertisers (AANA) Environmental Claims Code (the ‘Environmental Code’) came into effect. Key provisions in the new Environmental Code include:

-        The overall impression of the advertisement, including the specific claim, must be accurate and truthful;

-        All claims must be substantiated with evidence;

-        Claims should not be vague, use clear language, and be specific;

-        Claims should reflect a genuine environmental benefit, without overstating the impact; and

-        Future sustainability goals must be achievable and based on verifiable evidence.

You can find the new code on FoodLegal InHouse. New Zealand’s advertising body has also published similar guidance (see below).

The AANA publishes a number of industry self-regulatory codes (e.g. the Food & Beverages Code, and the Environmental Claims Code) which are enforced by Ad Standards and many retailers.

Food businesses must consider multiple frameworks relating to environmental claims. FoodLegal can assist with any product marketing to ensure compliance with the relevant codes and legislation.

6.     Ad Standards finds McDonalds ad targeted children

On 22 January 2025, the Ad Standards Community Panel found that McDonalds Australia breached Section 3.1 of the AANA Food and Beverages Code. A television advertisement depicted teenagers sitting on a bed eating McDonalds McFlurrys whilst looking at their phones. A voice over remarks: “best served with a side of goss!”

Despite McDonalds not providing information to the panel as to the relevant Nutrient Profile Scoring Criterion (NPSC) calculation, the Community Panel noted that the product in question (a Cherry Ripe McFlurry) was likely to meet the definition of an ‘occasional food or beverage product’ under the Food and Beverages code. Products meeting this definition must not be targeted towards children.

The Panel noted:

-        The product was ‘principally or significantly’ appealing to children, and not ‘only’ appealing to children.

-        The language and purpose of the advertisement was targeted at children under 15.

-        Audiences would not include a significant proportion of children.

The Panel weighed these three elements, and found that despite the average audience not including a significant proportion of children, this did not mitigate the appeal of the product and content of the advertisement. McDonalds was therefore found to be in breach of Section 3.1.

7.     ABAC notable decisions in January 2025

The Alcohol Beverages Advertising Code Scheme (ABAC) Adjudication Panel has decided on the following notable cases:

-        On 23 January 2025, decided that marketing collateral of Hard Fizz (by Fizzy Mates Pty Ltd) depicting a ‘shoey’ and ‘skulling’ of alcohol breached the ABAC Code by encouraging rapid alcohol consumption.

Some Instagram posts also depicted alcohol consumption before or during an activity requiring a high degree of alertness or physical coordination.

-        On 28 January 2025, decided that marketing material of Fizzer Seltzer and Moon Dog Beach Club (by Moon Dog Brewing Pty Ltd) breached the ABAC Code by having ‘strong or evident appeal to minors’.

The Panel decided the marketing was not sufficiently distinguished as an alcoholic beverage from a soft drink and used props familiar to minors (e.g. sand, bucket and shark toy in a beach setting).

8.     ACNF releases new ‘record of views’ in relation to three important products

The Advisory Committee on Novel Foods (ACNF) has released a new February 2025 version of its Record of Views. The Record of Views provides non-binding opinions by the ACNF on whether substances are considered novel or not in Australia and New Zealand. New entries include:

-        Grape purée produced from fermented and heat treated grape pomace;

-        Green tea extracts (Camellia sinensis); and

-        Silkworm pupae (Bombyx mori).

The Therapeutic Goods Administration has also announced that it will include green tea extracts in the Poisons Standard (see below). This March 2025 edition of FoodLegal Bulletin includes an article on the implications for food businesses using green tea extracts in their products.

The new version of the ACNF Record of Views can be found on FoodLegal InHouse.

9.     APVMA opens consultation for its strategic plans 2025 to 2030

The Australian Pesticides and Veterinary Medicines Authority (APVMA) is seeking feedback on its draft strategic plan for 2025-30. The plan will identify key priorities and performance measures for the next 5 years.

The APVMA is seeking submissions from industry until 30 April 2025.

10.  Australian Senate report recommends Organic Standards Bill changes

The Rural and Regional Affairs and Transport Legislation Committee has released recommendations on the National Organic Standard Bill 2024, which was introduced into parliament on 19 November 2024. The Bill aims to regulate the sale and import of organic goods in Australia.

The Committee recommends against passing the bill without key reform, including:

-        Clarity on the definition of ‘organic’;

-        Scope of the proposed standard;

-        Addressing impacts on smaller stakeholders; and

-        Suitability of the revenue threshold.

Currently, there are several widely adopted industry standards and certification schemes for ‘organic’ products in Australia. Organic products which are exported from Australia must also meet organic requirements which are based on Australian Standard AS6000 (Organic and biodynamic produce).

11.  Senate inquiry recommends national food plan

The House Standing Committee on Industry, Science and Resources has published an inquiry report into the Australian food system: Food for Thought: The opportunities and challenges for Australia’s food and beverage manufacturing industry.

The report recommends that Australia develop a national food plan with a holistic and cohesive strategy across the entire food system.

12.  Changes to wine and beer excise schemes

On 22 February 2025, the Australian Federal Government announced an increase in the excise remission cap for eligible brewers and distillers by $50,000 (from $350,000 up to $400,000), in addition to increasing the Wine Equalisation Tax producer rebate.

The tax relief will come into effect 1 July 2026.

The Government has also announced a temporary two-year freeze on the indexation of draft beer excise, starting from August 2025.

13.  TGA makes final decisions regarding Green tea extract, amygdalin, hydrocyanic acid and Wild Cherry bark

The Therapeutic Goods Administration (TGA) has published the final decisions of the Secretary to the Department of Health and Aged Care to amend the Poisons Standard. Final decisions have been made in relation to:

-        Camellia sinensis extract (green tea extract), referred to joint ACMS-ACCS meeting no. 32. Green tea extract was also the subject of an updated ACNF opinion (see above). We discuss the impact of these decisions in this March 2025 edition of FoodLegal Bulletin.

-        Amygdalin, hydrocyanic acid and Wild Cherry Bark, referred to join ACMS-ACCS meeting no. 34.

These decisions are not open for public comment, and will take effect on 1 October 2026.

14.  DAFF releases avian influenza alert impact egg and egg product markets throughout Australia

On 13 February 2025, The Australian Department of Agriculture, Fisheries and Forestry (DAFF) published a Market Access Advice document for Eggs and egg products. The advice warns that the Australian Centre for Disease Preparedness has confirmed a second case of high pathogenicity H7N8.

As of 13 February, the second detection is linked to an infected premises and is within the restricted area in Strathbogie Shire in Victoria. Producers and exporters of eggs should closely monitor the situation and familiarise themselves with the advice to determine if their export requirements change.

15.  DAFF releases biosecurity report on fresh beef from Canada

The Australian Department of Agriculture, Fisheries and Forestry (DAFF) has published its final report for the import risk review of fresh (frozen or chilled) beef and beef products for human consumption from Canada. The report adds Canada as an approved applicant country to the 2017 DAFF review, and finds that biosecurity risks for importing beef can be appropriately managed to meet Australia’s Appropriate Level of Protection (ALOP).

DAFF will now assess whether Canada’s official animal health, export control and supervision systems are sufficient to meet biosecurity requirements.

16.  Updated Poisons Standard entry for Nicotinic acid takes effect

On 1 February 2025 the Poisons Standard was updated to incorporate the following changes in the scheduling of nicotinic acid:

-        Adding a new Schedule 5 entry for nicotinic acid when packed and labelled for use as an agricultural chemical; and

-        Amending the current Schedule 4 entry to account for use as an animal therapeutic.

Food Standards Australia New Zealand (FSANZ) News

17.  FSANZ launches second round of submissions in caffeine review

On 4 March 2025 FSANZ commenced its second round of submissions as part of Proposal P1056 – caffeine review.

FSANZ started its review of caffeine in July 2023. This second round of submissions considers proposed changes for some permissions regarding caffeine use in sports foods and general foods.

Submissions are due by 15 April 2025. FoodLegal can assist businesses in making a submission.

18.  FSANZ commences assessment of Application A1325 – Extension of use of steviol glycosides in hotplate flour products

On 4 March 2025 FSANZ completed an administrative assessment and commenced its review of Application A1325 by George Weston Foods Limited  to extend the use of the food additive sweetener steviol glycosides to flour products (crumpets, pikelets and pancakes) that are produced on a hotplate.

FSANZ will announce an opportunity to comment at a later date.

19.  FSANZ calls for submissions on Application A1323 - Food derived from insect-protected soybean line COR23134

On 4 March 2025 FSANZ called for submissions from industry with respect to Application A1323 by Corteva Agriscience Australia Pty Ltd to permit food derived from soybean line COR23134, genetically modified for protection from lepidopteran insect pests.

Submissions are due by 15 April 2025.

20.  FSANZ publishes amendment No. 235 to Food Standards Code

On 20 February 2025 FSANZ published amendment no. 235 to the Australia New Zealand Food Standards Code (Food Standards Code).

The amendment introduces Vitamin K2 (as Menaquinone-7) as a permitted form of Vitamin K in foods for special medical purposes.

21.  FSANZ approval of variations

On 14 February 2025, FSANZ approved variations to the Food Standards Code arising from the following applications and proposal:

·        A1299 – Fructosyltransferase from Aspergillus oryzae as a processing aid;

·        A1301 – Triacylglycerol lipase from GM Komagataella phaffii as a processing aid;

·        A1303 – Food derived from herbicide-tolerant sugar beet line KWS20-1; and

·        M1022 – 2023 MRL Harmonisation Proposal.

FSANZ has notified the approvals to Food Ministers, who now have 60 days to either request FSANZ to review the approved standard or inform FSANZ that it does not intend to request a review.

22.  FSANZ accepts application A1324

On 11 February 2024, FSANZ completed an administrative assessment for application A1324 by Glycom A/S. The application seeks to permit the voluntary addition of 3-fucosyllactose (3-FL), a human-identical milk oligosaccharide (HiMO) produced using GM E. coli K12 in infant formula.  

FSANZ will be seeking feedback in a consultation process at a later date.

New Zealand

23.  New Zealand repeals Therapeutic Products Act 2023

In February 2025, NZ repealed the Therapeutic Products Act 2023. In October 2024, the NZ government announced it was developing a new Medical Products Bill to update the regulatory framework for therapeutic products.

For several years, NZ governments have been attempting to modernise the frameworks for dietary supplements. However, according to the NZ government the new Medical Products Bill will exclude ‘natural health products’ which will continue to be regulated under the Dietary Supplements Regulations 1985.

24.  NZ Advertising Standards Authority releases new environmental claims guidance

On 26 February 2025, The NZ Advertising Standards Authority (NZ ASA) released a guidance note to help interpret the ASA rules on advertising environmental claims. The guidance note summarises the ASA rules, links other relevant guidelines such as the Commerce Commission’s environmental claims guidelines and presents principles for environmental claims advertising.

The four key principles are that all environmental claims must be truthful and accurate, must be substantiated, must concern a complete product life cycle and must only claim genuine benefits.

These principles are similar to those incorporated in the new AANA Environmental Claims Code, to apply in Australia (see above).

25.  New Zealand proposal for fisheries reform

On 12 February 2025, the New Zealand Ministry for Primary Industries (MPI) opened for consultation on a package of proposals to amend the New Zealand Fisheries Act. The changes are intended to:

-        Improve responsiveness and efficiency of decision making;

-        Improve on-board camera regulation; and

-        Introduce new rules for Quote Management System fish.

The proposals are open for comment until 28 March 2025.

26.  New Zealand Food company fined for selling products contaminated with lead

On 7 February 2025, Chelsea Sugar was fined NZ$149,500 for the manufacture, distribution and sale of sugar products contaminated with lead. In September 2021, Chelsea Sugar imported sugar from Australia that became contaminated with lead during sea transport.

The vessel used to ship the food had previously shipped metal sulphide concentrates (lead and zinc). Chelsea Sugar was advised the ship failed a survey report which indicated that it was unfit to load and transport bulk sugar. The vessel was cleaned prior to transport and the cleanliness report certified that the vessel was in a fit state to stow and carry raw sugar. However, lead contamination still occurred.

27.  Business fined for making misleading representations

On 19 February 2025, Walond Ltd (known as ‘Look Sharp’) was fined NZ$292,500 in the Auckland District Court for making misleading representations as to product prices and consumer rights under the Consumer Guarantees Act, breaching the New Zealand Fair Trading Act.

Frequent and common pricing errors resulted in consumers paying up to 33% more for a product than advertised. The misrepresentations regarding consumer guarantees were contrary to consumers’ rights to refund and exchanges for faulty products. Look Sharp also falsely claimed that COVID-19 restrictions prohibited all returns and refunds.

Europe and UK

28.  UK Food Standards Agency consulting on regulatory changes

The United Kingdom Food Standards Agency (UK FSA) is consulting on proposed changes to the Food Law Code of Practice and Practice Guidelines in England, Northern Ireland and Wales.

The consultations are open to 19 May 2025.

29.  UK Food Standards Agency consulting on regulatory changes

On 26 February 2025, the UK FSA opened consultation on proposed amendments to Regulation 2019/1793 concerning high risk food and feed of non-animal origins. The amendment involves a temporary increase of conditions for importing specified food and feed of non-animal origins.

The consultation closes on 9 April 2025.

30.  EU Council and Parliament provisional agreement to reduce food waste

On 19 February 2025, the EU Council and EU parliament reached a provisional agreement on the waste framework directive. The waste framework directive sets targets for food waste by 2030:

·        Reducing processing and manufacturing waste by 10% compared to 2021-2023

·        Reducing per capita waste from retail, food services, households and restaurants by 30% compared to 2021-2023.

The provisional agreement also proposes further extended producer responsibility obligations on textile producers.

United States:

31.  US FDA delays rule on “healthy” label requirements

The US FDA is delaying the date of the final rule on what can be labelled as “healthy” on product packaging. This is in response to the US President’s agency freeze on issuing rulings.

Health secretary Robert F Kennedy has said the decision will be delayed by two months until the end of April 2025.

This is general information rather than legal advice and is current as of 6 Mar 2025. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.