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Food Law Updates
Date Published27 November 2007
by Joe Lederman and John Gao © Lawmedia Pty Ltd, November 2007 1. ACCC issues proceedings against Arnott’s Of particular interest is the finding that only 42% of consumers received some form of information from health care providers (which includes doctors). A recent trend for FSANZ has been to avoid issuing new requirements for advisory and warning statements on products and simply issuing media releases intended to let doctors know of the risks of certain products to consumers. See our article “Confusing FSANZ responses to food additive issues” in the September 2007 issue of the FoodLegal Bulletin.
FoodLegal
Australian Food Lawyers and Consultants
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On 15 November 2007, the Australian Competition and Consumer Commission (the ACCC) issued a media release announcing that it had instituted proceedings against Arnott’s Biscuits Limited for alleged contraventions of the Trade Practices Act.
The ACCC claims that that Arnott’s engaged in conduct that it claims to be misleading or deceptive by depicting fruit on a label of a biscuit product when in the opinion of the ACCC the biscuit filling “does not consist predominantly of the depicted fruit” and “does not contain a significant amount of the depicted fruit”.
The case is expected to add to a growing body of law regarding pictorial representations about food on labels which were considered by the Federal Court in the Cadbury Schweppes (Cottee’s cordial) case in 2004 and the Uncle Toby’s 2006 case.
The Arnott’s case is due to be heard in the Federal Court on 11 December 2007. FoodLegal will provide detailed analysis and commentary on the outcome of the case when the judgement is released.
2. FSANZ intends to call for further public comment on issues in Proposal P293
At the 9th Annual Food Regulation and Labelling Standards Conference in Sydney on 22-23 November 2007, the new CEO of FSANZ, Steve McCutcheon, in his speech commented that a 7 week public consultation period is proposed for some new changes to the proposed new Nutrition and Health Claims Standard 1.2.7 under Proposal P293. A transcript of his speech is available on the FSANZ website.
In relation to Proposal P293, Mr McCutcheon said:
“On the matter of nutrition and health claims, we are proposing a seven-week public consultation on some amendments to three main issues: vitamin and minerals claims; the substantiation framework for all levels of claims; and criteria for some fatty acid claims.
“If the Board agrees, we will release a consultation paper for public comment in December.”
FoodLegal will provide detailed analysis and comment on the consultation paper after it is released in December 2007
3. FSANZ releases Annual Report
On 1 November 2007, FSANZ released their 2006-2007 Annual Report.
Concerns were expressed by FoodLegal principal Joe Lederman in his speech to the 9th Annual Food Regulation and Labelling Standards Conference about aspects of the Annual Report. The acting CEO of FSANZ had written in the Report:
"We [FSANZ] recognise the value of the food industry to the national economy and the need to facilitate innovation and trade ... There is no magic formula for getting the balance right ... But, ultimately, the most effective feedback on whether we have succeeded in getting the balance right comes from the Ministerial Council ... Getting the balance right is more of an art than a science. However, our processes and culture allow us to do better than expose a wet finger to the wind. There is method, even in our subjectivity."
According to Joe Lederman, this substantiates a set of other evidence that FSANZ is no longer giving top billing on its agenda to ensuring food safety and is not doing thorough scientific assessments of its own. He also expressed concerns that FSANZ had shifted focus towards being a rubber-stamp to the Ministerial Council and its whole-of-government emphasis towards economic policy. If FSANZ did not change its approach, it would lose credibility with members of the public concerned about food additives and other ingredients in their foods. Joe Lederman also indicated that speeding up the process or stultifying public consultation would not enhance public credibility if FSANZ was merely giving PR spin for reassurance of the public whilst nevertheless discounting some very serious concerns about the food safety issues. Joe Lederman said that the food regulatory regime also needed to resolve the potential for the Food Regulation Ministerial Council policy (which issues policy directions to FSANZ). The potential exists for a conflict of interest similar to that which occurred in relation to British beef at the time of the Mad Cow Disease outbreak a few years ago because government was more concerned about protecting the relevant food industry sector instead of protecting the consumers.
A full copy of the Annual Report can be found here.
4. FSANZ issues media release warning on Listeria – shows lack of public communication
On 1 November 2007, FSANZ issued a media release warning of the dangers of Listeria.
The media release announced that a University of Wollongong study found that an alarming “57% of the pregnant women surveyed weren’t aware of all the foods that are potentially high risk and approximately 25% continued to eat these high risk foods while pregnant.”
Listeria is a naturally occurring bacteria which can cause miscarriages in pregnant women. It is general found in pre-prepared uncooked foods or cooked foods which have been cooled down and stored for extended periods of time. High risk foods include prepackaged cold meats, salads, cheese, and ice cream.
The alarming survey result suggests that perhaps warning or advisory statements ought to be required on the labels of some foods.
We note that the following comment was made in the media release:
“The University of Wollongong research also found that 59% of pregnant women had received some sort of information on food safety. Those that had information received it from a number of sources including 48% from their social network, 42% from health care providers and 27% from a Listeria pamphlet.”
In FoodLegal's view, this comment in the study confirms that informing doctors of the risks of certain foods is not an effective way of informing consumers. If doctors and other health care providers only warn 42% of pregnant women of the risks of something as severe as a miscarriage caused by listeria, it is more than likely that the communication of the dangers of consuming isomaltulose or D-tagatose (both of which are approved novel foods which have potential ill-effects and both of which FSANZ has merely informed doctors about) is even less effective.
A full copy of the media release on listeria can be found here.