Latest Food Law Updates:

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by Joe Lederman and Julian Wan © Lawmedia Pty Ltd, August 2007
FoodLegal
Australian Lawyers and Consultants

Recent developments in food law include: (1) legal action over "nutritive substance" in infant foods; (2) the launch of NSW's "Name and Shame" register; (3) the review of GM Crops; (4) ASEAN Nations taking Australia before the WTO over prawn imports; and (5) the announcement of a review of Halal and Kosher slaughter practices in Australia.

The review of slaughter practices comes as a result of concerns raised by the RSPCA over the legality of some Halal slaughter practices in a Victorian abattoir. The review appears to have mixed up Halal slaughter with the quite different longstanding Kosher slaughter practices and does not appear to appreciate the differences that exist between two different processes involving quite distinctive modes of practice, and this mix up is causing unwanted anguish throughout the Jewish community in Australia.

1. Nutricia taken to court over “nutritive substance” in infant food

The New South Wales Food Authority instigated legal action against baby food manufacturer Nutricia as the product contained substances which the New South Wales Food Authority believed were not permitted under the Australia New Zealand Food Standards Code.

On 7 August 2007, Nutricia voluntarily undertook to the NSW Supreme Court that it would stop accepting orders for the alleged infringing products. As a result of Nutricia’s voluntary undertakings, the NSW Supreme Court restrained the NSW Food Authority from seizing or recalling Karicare Gold Plus infant formula and Karicare Gold Plus follow-on formula until 20 August 2007. The matter is still currently before the courts.

The substances in question were fructo-oligosaccharides (FOS) carbohydrates. Clause 9 of Standard 1.1.1 states that nutritive substances must not be added to food unless expressly permitted by the Australia New Zealand Food Standards Code. The New South Wales Food Authority believed that the substance have not been expressly permitted as a nutritive substance under the Australia New Zealand Food Standards Code and therefore must not be added to foods.

A “Nutritive substance” means a substance not normally consumed as a food in itself and not normally used as an ingredient of food, but which, after extraction and/or refinement, or synthesis, is intentionally added to a food to achieve a nutritional purpose, and includes vitamins, minerals, amino acids, electrolytes and nucleotides (see Clause 2 of Standard 1.1.1).

Under Standard 2.9.1, infant formula products are permitted to contain nutritive substances only from a permitted list. Infant formula products are defined as “a product based on milk or other edible food constituents of animal or plant origin which is nutritionally adequate to serve as the principal liquid source of nourishment for infants”. The table to clause 7 of Standard 2.9.1 lists the permitted nutritive substances, their permitted forms and the maximum amount permitted. At this time (August 2007), FOS had not been listed in this table.

2. NSW launches “Name and Shame” register

In May 2007, Primary Industries Minister Ian Macdonald announced that the New South Wales Food Authority would begin to “name and shame” food outlets which had been successfully prosecuted for breaches of the Food Act. On 25 July 2007, the “Name and Shame” register was launched on the New South Wales Food Authority Website. The “shame register” is available at: http://www.foodauthority.nsw.gov.au/prosecutions.asp.

3. Review of GM Crops

As reported in the Food Law Updates article in the July 2007 issue of our FoodLegal Bulletin, Victoria and New South Wales are both conducting reviews of their own moratorium on the planting of GM canola Crops along with South Australia and Tasmania.  The Federal Agriculture Minister Peter McGauran has now released a new report which adds further weight to the lifting of moratorium on GM canola crops by the States.  The report had concluded that Australia’s main competitor in the market for canola, Canada, has been growing GM canola for a decade without any appreciable loss of market share while enjoying significant agronomic benefits. The report is available at: http://www.daff.gov.au/agriculture-food/biotechnology

4. ASEAN nations take Australia to WTO over prawn import restrictions

A group of ASEAN nations including China, Vietnam, Taiwan, Indonesia, Malaysia, the Philippines and Thailand are taking Australia to the WTO disputes panel in Geneva in October to challenge new quarantine requirements on prawn imports. Under the new quarantine measures, all raw prawn imports will be banned and additional safety tests for prawn cutlets and prawn meat will be required by the end of September 2007. The group of ASEAN nations are claiming that these measures amount to a non-tariff technical barrier to trade (‘TBT’). If Australia were to lose the dispute, compensation payments of $500 million for each year the restrictions are in place may be awarded according to the president of the Seafood Importers Association of Australia (see news article here: “WTO to umpire row over prawns”)

5. Ritual slaughter standards under review

The Federal Minister for Agriculture, Fisheries and Forestry, Peter McGauran, has unexpectedly announced a review of the standards and guidelines for the religious slaughter of livestock in Australia. Religious slaughter for both halal and kosher meat requires livestock to be killed by cutting the throat of the animal. The review comes after the RSPCA raised concerns over the legality of Halal slaughters at a Victorian abattoir.

However, genuine concerns have been expressed throughout the Australian Jewish community that it is being unfairly lumbered with issues concerning Halal which is the Muslim slaughter method. The strict Kosher slaughter procedures have followed special legislative requirements for many years and are regularly checked and reviewed under State legislation to the satisfaction of the responsible State authorities. The latest action has been initiated at a Federal level. Historically, moves to alter Jewish (Kosher) ritual slaughter methods have only occurred in countries where anti-Jewish sentiments have prevailed, and the banning of Kosher slaughter was one of the first legislative enactments of Nazi Germany. If any change were to be required by law to the current practices, this would preclude all observant Jews from eating any meat produced here.

No-one is suggesting that there is any anti-Jewish sentiment within the Federal Department of Agriculture or AQIS. Nevertheless, it is disconcerting that the Department has broadened an enquiry from Halal into the well-worn Kosher field. The strictly-supervised Kosher slaughter process is used mainly for the domestic Kosher market and operates under State law jurisdictions (especially Victoria and New South Wales). It would be desirable for those commissioning any review to begin by appreciating that the Muslim and Jewish communities do not share the same problems and processes.