Food industry beware! Australian food industry threatened by new food standard


By Joe Lederman and Charles Fisher
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, May 2009

On 30 April 2009, an amendment to the Australia New Zealand Food Standards Code creating a Maximum Level for a natural compound in Ready-to-Eat Cassava Chips was gazetted. A report from the Codex Alimentarius Commission session where Australia was promoting discussion of an international standard highlighted many of the flaws in a proposal which FSANZ has had gazetted as law in Australia.

In the FoodLegal Bulletin article “FSANZ pushing barrow on world stage” (published in the March 2009 issue of FoodLegal Bulletin), our editor highlighted that the Australian food standard-setting agency, Food Standards Australia New Zealand (FSANZ) had made several concessions in the First Review Report for Proposal P1002.

In particular, FSANZ has been compelled to admit that the scientific evidence FSANZ relied upon in setting a Maximum Level for cyanogenic glycosides (a natural compound which exists in over 2000 plants, nuts, seeds and fruits) was ‘suboptimal’. Moreover, FSANZ expressly stated that the scientific evidence that it had assessed contained ‘significant uncertainties’ and ‘key data deficiencies’ (see Page 6 of the First Review Report).

Furthermore, we reported that FSANZ was heavily involved in the drafting of a Discussion Paper on the effect of cyanogenic glycosides that was being presented internationally in March 2009 before the Codex Alimentarius Commission (the international agency which determines international food law standards). In April 2009, a Report was released by the Codex Alimentarius Commission (ALINORM 09/32/41) which stated on Page 13:

The Committee had an exchange of views on how to proceed further with this issue. Some delegations favoured the development of a code of practice and additional analytical methods for determination of hydrogen cyanide (free and total). Other delegations felt that it was more appropriate to wait for a re-assessment of cyanogenic glycosides and their derivatives by JECFA before considering the setting of maximum levels or the development of a code of practice. In addition, some delegations expressed the view that it would be useful to clarify the levels for cyanogenic glycosides and their derivatives in foods in a consistent way as the levels in some Codex standards carrying such a provision were not consistent in which substances were able to release cyanides and their levels expressed as cyanides (-CN) or hydrogen cyanide (HCN). There is also a need to establish a consistent method to determine these levels.

Essentially, the Commission requested that there would need to be further investigations because there was simply not enough information available to take any regulatory action. The Commission recognixed that there was not enough knowledge on how cyanogenic glycosides are digested in humans and also that there was not a satisfactorily consistent testing method.

Cyanogenic glycosides are not limited to cassava products. They exist in a whole range of ready-to-eat foods including but not limited to almonds, apricots, grapes and raw linseed.

Meanwhile, FSANZ proceeded to implement its own food standard which sets an incredibly conservative Maximum Level for only one food product. In doing so, FSANZ is potentially threatening the viability of an Australian food industry. FSANZ has done so in the knowledge that its scientific evidence is lacking and that in 27 years and over 300 million packets of product sold, there has not been one reported incidence of illness.

The Australia New Zealand Food Regulation Ministerial Council has rubber-stamped this Maximum Level and it has become law, despite being aware that it has not been approved by Codex Alimentarius and unnecessarily threatens an Australian industry.

Should this same Maximum Level (or any other food standard based on poor scientific evidence) be applied to other food industries such as our fresh fruit and nut industries, the flaws in this decision will be even more apparent.

Declaration of interest: FoodLegal has acted for food manufacturers that produce foods that contain cassava-based ingredients.

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.