Additional recent developments in Food Law and Policy

Date Published

Author

By Joe Lederman
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, May 2011

• FSANZ set to lower minimum alcohol content for wine
• Japanese food imports subject to further testing following nuclear incident but not nearby third countries
• Meat industry questions implication of hormone claims
• The end of the interim period for Australia’s safety policy on the mad cow disease
• FSANZ set to introduce amendments to the Application Handbook
• Recent findings by researchers of serious contaminants in infant foods

1. FSANZ set to lower minimum alcohol content for wine

Food Standards Australia and New Zealand (FSANZ) is currently considering an Application from the Winemakers’ Federation of Australia to reduce the minimum alcohol content for wine and sparkling wine in Australia from 8% to 4.5%.

Currently, Standard 4.5.1 of the Australia New Zealand Food Standards Code requires wine and sparkling wine produced in Australia to contain no less than 80 mL/L of ethanol (8% alcohol per volume).

As there is no such requirement for imported wine, this has created a situation where imported beverages with alcohol content below 8% are permitted to be sold in Australia as “wine”, while domestically produced drinks with less than 8% alcohol content cannot be marketed and sold as “wine”.

Furthermore, the disharmony between Australian and EU requirements for minimum wine content has meant that Australian wine producers have been unable to take full advantage of the 2008 Agreement between Australia and the European Community on Trade in Wine (Australia – EU Wine Agreement). Under the Australia-EU Wine Agreement, Australia is permitted to export wine to the EU with a minimum of 4.5% alc/vol.

In considering the proposal, FSANZ conducted a cost/benefit analysis and found that the current status quo of 8% alc/vol presents a regulatory disadvantage where Australian produced wine is subject to a minimum alcohol content requirement and imported wines are not. Furthermore, as FSANZ states:

The status quo may be seen as a disincentive for the Australian wine industry to make innovations with respect to low alcohol wines. This may be regarded as a cost to the Australian wine industry in terms of a more limited product range and market opportunities.

By contrast, FSANZ found that lowering the minimum alcohol content to 4.5% would harmonise Australian requirements with the requirements of the EU, the largest market for Australian exported wine. This would in turn facilitate trade under the Australia-EU Wine Agreement.

A minimum alcohol content of 4.5% for wine will also introduce low alcohol wines to the market, increase product range for consumers and market opportunities for the industry. Based on this cost/benefit analysis, FSANZ is recommending as its preferred approach redrafting Standard 4.5.1 of the Food Standards Code.

FSANZ is currently seeking consultation on this Application until 2 June 2011.

2. Japanese food imports subject to further testing following nuclear incident but query nearby third countries

Following the Fukushima nuclear incident in Japan, FSANZ has released a Fact Sheet stating:

FSANZ remains of the view that the risk of Australian consumers being exposed to radionuclides in food imported from Japan is negligible. Milk and fresh produce are not imported into Australia, while imports of seaweed and seafood represent a very small proportion (5.5% and 0.46% respectively) of Australia’s total imports of these products.

FSANZ has advised the Australian Quarantine and Inspection Service (AQIS) to test some foods from 13 Japanese prefectures before allowing the products to be released for sale.

This is consistent with international practice, with China recently expanding its ban on Japanese imports from five to twelve prefectures. The Indian Health Ministry has placed a 3 month suspension on Japanese food imports, while other countries, including Brazil, Malaysia, South Korea and Thailand, have announced that Japanese food imports will require safety certificates to prove that the food is safe for consumption.

FoodLegal considers however that FSANZ does not yet appear to have addressed the matter of foods being imported into Australia from third countries also affected by the Japan nuclear fallout. Foods (such as salt or fish) harvested from the sea in nearby regions or in nearby countries have not been subject to the same levels of scrutiny.

3. Meat industry questions implication of hormone claims

A claim by a Melbourne supermarket chain has angered competitors involved in the production of lamb. The supermarket advertised a claim stating that “All our beef, lamb and pork are Australian grown with no added hormones”. This move comes after other supermarkets such as Coles began advertising HGP-free beef in 2010.

According to the Sheep Meat Council, hormones have never been used in lamb production in Australia. This was recently confirmed by the Australian Pesticides and Veterinary Medicines Authority (APVMA). However, many in the Australian meat industry feel that these hormone-free claims could imply in the minds of consumers that hormones are otherwise typically used in the production of lamb.

FoodLegal’s principal specialist food lawyer Joe Lederman was quoted in the Weekly Times (April 20, 2011), saying that this was an implied comparative claim against the product of others in the same market. If the comparison was false or misleading, legal action could be taken by the competitors, the industry and the Australian Competition and Consumer Commission (ACCC).

4. The end of the interim period for Australia’s safety policy on the mad cow disease

On 29 March 2011, the Australia Quarantine and Inspection Service (AQIS) issued a statement advising countries exporting beef and beef products to Australia to apply to FSANZ for assessment under Australia’s Bovine Spongiform Encephalopathy (BSE, also known as the Mad Cow Disease) Safety Policy by 30 June 2011.

Australia’s BSE Safety Policy was introduced in October 2009 and came into effect on 1 March 2010. However, the Interim Arrangements under the policy officially ends on 30 June 2011. If a country does not apply to FSANZ for BSE assessment by 30 June 2011, all beef and beef ingredients sourced from that country will no longer be considered to be derived from animals free from BSE, as required under clause 11, Standard 2.2.1 of the Australia New Zealand Food Standards Code. Consequently, from 1 July 2011, beef and beef products from a country without a FSANZ BSE assessment will be treated as a failing food to be re-exported from Australia or destroyed.

As of 29 March 2011, New Zealand was the only country known to have lodged an application with FSANZ for assessment. Seventeen other countries currently permitted for beef export to Australia therefore still needed to apply to FSANZ for reassessment.

FoodLegal comment: This also means that FSANZ has very little time left to make a thorough BSE reassessment for each country but will rely mostly upon examination of the control measures in place in each country.

5. FSANZ set to introduce amendments to the Application Handbook

FSANZ has proposed amendments to Part 3 (Mandatory requirements) and Part 2 (for information only) of the FSANZ Application Handbook.

Many of the amendments were proposed to reduce typographical errors and duplicated texts. There are, however, proposed inclusions of additional information requirements based on Policy Guidelines of the Australia and New Zealand Food Regulation Ministerial Council. Some of these are outlined below:

Applications for the addition to food of substances other than vitamins and minerals

The proposed amendments to the FSANZ Application Handbook include additional information requirements to assess the stated purpose, efficacy, any potential significant negative public health impacts of substances intentionally added to food/s for other than technological reasons, and clarification of the type of consumer information required. 

While this information has been requested by FSANZ in the past, the proposed amendments are intended to make them mandatory and increase procedural certainty.

Applications in relation to Special Purpose Foods

The proposed amendments in relation to special purpose foods include: a clarification of the types of products that may be considered to be special purpose foods; information requirements on the physical and physiological need of the target population; information requirements to assess the impact of compositional and labelling changes; information where relevant demonstrating consistency with internationally recognised codes of practices.

6. Recent findings by researchers of serious contaminants in infant foods

Swedish researchers have reported test results of products used to wean infants off milk, which found the presence of “alarming” amounts of contaminants. The products tested were made by major baby food manufacturers.

Published in the Journal of Food Chemistry, scientists from the Karolinska Institutet in Stockholm (where the research was carried out) stated:

"Alarmingly, these complementary foods may also introduce high amounts of toxic elements such as arsenic, cadmium, lead and uranium, mainly from their raw materials.

“These elements have to be kept at an absolute minimum in food products intended for infant consumption.

"In infant foods, the high concentrations of arsenic in the rice-based foods are of particular concern."

FoodLegal comment: Although the Australia New Zealand Food Standards Code contains maximum residue limits, it is unclear to what extent there has been specific monitoring by AQIS and local compliance enforcement agencies concerning infant foods in particular, in light of the Swedish findings.