Should our Food Law treat GM foods differently from non-GM peanut butter?

By Joe Lederman and John Gao
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, June/July 2008

Many anti-GM activists argue that there is an actual or potential health hazard in GM food consumption. While claims of higher allergenicity, or any other claim of adverse health, for GM foods have not been established by the majority opinion of scientific literature produced to date, nevertheless consumers who seek to avoid GM foods may wish to know when they are being offered a food with a genetically-modified element. At present, the law allows some loose carve-outs so that consumers are eating GM foods without a legal requirement for the product to be labelled as GM food.

Irrespective of the GM status, there are peanut-based foods in the market that are already toxic or lethal to some consumers and yet these are readily available to all.

The following article considers the analogies and differences between the legal treatment of allergenic foods and GM foods.

For many consumers, the eating of a peanut-derived product such as peanut butter can be toxic or lethal. In Australia, a 2002-2003 5 month study by the Australian Paediatric Surveillance Unit found up to 123 cases of anaphylaxis in children aged under 15 years, with peanuts being responsible for 29% of all reactions and tree nuts causing 23% of all reactions. According to Anaphylaxis Australia, there is evidence to suggest that the incidence of food allergies is increasing.

Under the Australia New Zealand Food Standards Code (“the Food Standards Code”), Food Standard 1.2.3 is the only applicable food standard designed to protect people with anaphylactic reactions. Clause 4 of Standard 1.2.3 states:

4 Mandatory declaration of certain substances in food

(1) The presence in a food of any of the substances listed in the Table to this clause, must be declared in accordance with subclause (2), when present as –

(a) an ingredient; or

(b) an ingredient of a compound ingredient; or

(c) a food additive or component of a food additive; or

(d) a processing aid or component of a processing aid.

(2) The presence of the substances listed in the Table to this clause must be –

(a) declared on the label on a package of the food; or

(b) where the food is not required to bear a label pursuant to clause 2 of Standard 1.2.1 –

(i) declared on or in connection with the display of the food;

(ii) declared to the purchaser upon request.



The effect of Clause 4 of Standard 1.2.3 above for foods containing peanuts is simply to require that the food supplier must mention in the ingredients list on the product label that the ingredients happen to include peanuts. There is no further obligation to warn consumers. There are no further requirements for directions, declarations or to give any warnings on the label – notwithstanding the drastic health adversities (or even death) for some consumers who eat the product.

A comparison of peanut butter labelling with the Food Standard for labelling GM foods

Food Standard 1.5.2 requires that only approved GM products can be used as ingredients in a “food produced using gene technology”. The Standard also requires that all “genetically modified foods” declare that the product is genetically modified or contains genetically modified ingredients. We note, however, that the definitions of “food produced using gene technology” and “genetically modified food” are very different so that GM labelling may therefore not always be required where a food falls outside the definition of “genetically modified food”, even when the food has been produced in a manner using a GM technology.

Standard 1.5.2 defines “genetically modified food” as:

genetically modified food means food that is, or contains as an ingredient, including a processing aid, a food produced using gene technology which –

(a) contains novel DNA and/or novel protein; or

(b) has altered characteristics;

but does not include –

(c) highly refined food, other than that with altered characteristics, where the effect of the refining process is to remove novel DNA and/or novel protein;

(d) a processing aid or food additive, except where novel DNA and/or novel protein from the processing aid or food additive remains present in the food to which it has been added;

(e) flavours present in the food in a concentration no more than 1g/kg; or

(f) a food, ingredient, or processing aid in which genetically modified food is unintentionally present in a quantity of no more than 10g/kg per ingredient.

GM labelling exceptions

GM labelling may therefore not be required on a food product where the GM content falls into one of the following categories:

  • highly refined foods where the refining process has the “effect” of removing novel DNA and/or novel proteins;
  • processing aid or food additive made from a GM process where no novel proteins are in the final food;
  • GM ingredients used as flavours where the total amount of each flavour used does not exceed 1g/kg;
  • If an ingredient that would otherwise be classified as genetically modified food was unintentionally present in a quantity of no more than 10g/kg per ingredient.

Further comparison of the requirements for GM foods with non-GM peanut butter

The allergen labelling requirements for any peanut-based product (assuming the peanuts are non-GM) only require peanuts to be declared where it is used as an ingredient. There is no Food Standards Code requirement to label where merely trace amounts are present such as where a food is processed on machinery that had previously been used to process peanuts. While some manufacturers use the statement “may contain traces of nuts” or “made on machinery also used to process nuts”, there is no legal requirement under the Australia New Zealand Food Standards Code to do so. However, the fact that a product is not legally required to carry an allergen warning does not mean that a “peanut free” claim can be made. In order to make a “peanut free” claim, a food product must be absolutely free of any trace of peanut, in accordance with the interpretation given by Australia’s premier consumer protection agency, the Australian Competition & Consumer Commission in its enforcement of sections 52, 53 and 55 of the Trade Practices Act 1974 (Cth) which prevent conduct being misleading or deceptive.

For genetically modified foods, GM food ingredients must be labelled as such but similarly there are exemptions for trace amounts of GM ingredients. Moreover, in addition to exemptions for trace amounts, further exemptions for GM ingredients apply where there GM DNA is present in small amounts for the purpose of flavouring or where a process which has the intended effect of removing the novel DNA or proteins.

Greater leniency for GM labelling

  1. An important legal difference between labelling of GM food and the type of allergen labelling required for peanuts is that exemptions can apply for GM labelling even when a manufacturer is fully aware that GM ingredients have been intentionally added to a product - whereas peanut labelling is required once the manufacturer is aware of any ingredient containing peanuts no matter the amount of the ingredient used or its purpose in the food.
  2. Furthermore, flavours made from GM sources used in concentrations of less than 0.1% in the final food do not need to be labelled as GM.
  3. Additionally, the legal exemption for GM foods where a refining process has the “effect” of removing novel DNA and/or novel proteins is very ambiguous. We note that this does not necessarily mean that the end product must contain no novel DNA and/or novel proteins. In fact, there is no definition of “effect” in the Standard and no minimum requirement for how effective such a refining process must be. For example, canola oil could be extracted from GM canola through a method that might be said to have the effect of removing novel DNA and/or novel proteins. However, there could be trace residues of GM or novel proteins in the oil product. Yet the GM Labelling Standard does not seem to require such products be labelled as GM.

Non-transparency is a consumer problem

One key difference in the way peanuts and GM foods affect human health is the amount of knowledge about the likely effects of the food.

While peanuts are generally regarded as safe for most of the population with a long history of consumption, the peanut based product is considered to only pose dangers only for identifiable sufferers of peanut allergies. In relation to any GM food, FSANZ conducts a safety assessment before any GM substance can be used in a food in Australia.

FSANZ safety assessments generally cannot consider long term health effects as it would not be possible to conduct long term testing, and assessments can only be based on available scientific literature. For most GM products, the scientific literature available is sourced predominantly from the proponent applying to FSANZ for approval for their product because of the unique proprietary nature of the GM food product. FSANZ is not legally able to fund or compel independent third parties to conduct scientific research, although FSANZ does have power to request further information from any proponent requesting approval for their GM food product.

Even though supermarkets customers may claim to want more information on the health effects of GM foods, the information provided by anti-GM activists is often emotive and not supported by any of the current scientific literature. Furthermore, the current law governing peanut butter labelling is proof that a food need not necessarily be banned even though it may be unsafe for some consumers. If consumers are to have choice, there may need to be additional transparency and clarity where the current laws are either ambiguous or allow exceptions that are too wide or badly drafted.


This is general information rather than legal advice and is current as of 12 Dec 2015. 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.