Current Developments in Food Law and Policy

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Current developments in food law and policy

FoodLegal Lawyers and Consultants

© Lawmedia Pty Ltd, December 2011 – January 2012

• New standard for seed sprouts
• Call for submissions on anti-microbial processing aid
• Call for submissions on GM corn line application
• Stevia gains EU regulatory approval
• Queensland adopts state-wide food business rating scheme
• Australia passes ‘world first’ tobacco “plain packaging” legislation
• WTO Panel report out on ‘CoOL’ requirements
• Latest Harvard study reignites BpA debate
• FSANZ publishes 23^rd annual total diet study
• Australian government rejects traffic light labelling

1. New production standard for seed sprouts

A new primary production and processing standard for seed sprouts has been approved by the Food Standards Australia New Zealand (FSANZ) Board.

The standard aims to reduce the incidence of food-borne illness associated with seed sprouts by introducing food regulatory measures for sprout processors.

It includes requirements for producers to identify potential hazards and implement control measures to address those hazards. Sprout producers must also have evidence to show that control measures have been implemented. The standard has an 18-month implementation period.

 2. Call for submissions on anti-microbial processing aid

FSANZ is calling for submissions on an application (Application A1054) for permission to approve the use of 1,3-dibromo-5,5-dimethyldantoin (DBDMH) as an antimicrobial processing aid.

It is proposed that DBDMH will be used as an antimicrobial washing agent for treating all foods. It will be used in particular for meat and poultry products, as well as to treat water used in ice-making systems for general use in the poultry processing industry.

When added to water, DBDMH hydrolyses to form hypobromous acid, which is the active compound that possesses antimicrobial activity. Hypobromous acid kills bacteria present on the surface of food. It is claimed to be effective against Escherichia coli 0157:H7 and Salmonella.

FSANZ has undertaken a Risk and Technical Assessment of DBMH and found that the processing aid performs the technological function proposed by the applicant and raised no public health or safety issues.

The period for submissions closes 6pm (Canberra time) 22 December 2011.

 3. Call for submissions on GM corn line application

FSANZ is calling for submissions on an application to change the Food Standards Code to allow food derived from a genetically modified corn line.  

The application by Syngenta Seeds Pty Ltd seeks approval for food derived from a corn line genetically modified for protection against insect pests.

The GM corn line is intended for cultivation in corn-growing regions of North America and Canada, not in Australia and New Zealand but regulatory approval is required in Australia and New Zealand before it can be released into commercial markets in these countries. Once approved and commercialised, the Applicant intends to use corn line 5307 in conventional breeding with other corns.

As with all GM foods, FSANZ will its pre-market assessment. Submissions from government agencies, public health professionals, industry and the community are welcome before 18 January 2012.

 4. Stevia gains regulatory approval in the European Union

The European Parliament and the Council of Ministers have given their approval for the use of steviol glycosides, a natural sweetener derived from the stevia plant, as an ingredient in foods and beverages in the European Union (EU).

The new regulatory policy will enter into force twenty days after it is published in the EU Official Journal on 12 November 2011.  This means that products sweetened with steviol glycosides could be available to consumers across Europe by 3 December 2011.

The regulation currently allows stevia to be used at specific levels in a range of energy-reduced or ‘no added sugar’ foods such as flavoured fermented milk products, cocoa and chocolate products, edible ices, fruit and vegetable compotes, jams, soups and chewing gum. 

It is expected EU regulatory approval of stevia will significantly boost innovation and consumer sales of stevia products in the European market.

Steviol glycosides have been available as a food additive in Australia and New Zealand since 2008 (read FoodLegal Bulletin’s free article here).

5. Queensland adopts state-wide food business rating scheme

On 24 November 2011Queensland parliament passed the Health Legislation Amendment Bill 2011, which amends the state’s Food Act to provide for the establishment of a state wide food business rating scheme.

A food business rating scheme operates by assessing a food business against specific criteria to provide a rating of its food safety and hygiene standards.

The food business rating scheme is aimed to be a uniform state-wide scheme, there could be up to 74 different schemes operating across local (municipal) governments in Queensland. Additionally, just days before the legislation passed, Queensland Health unveiled figures that suggest there are more cases of food poisoning in Queensland than any other Australian State. According to Queensland Health, more than 7,700 cases of the most common forms of food poisoning were notified to health authorities in Queensland last year.

While local governments in Queensland are not obliged to adopt the State-sanctioned scheme, there are penalties for introducing a scheme which differs from the one approved in the legislation.

The merits of a consistent framework for a food business rating scheme have been recognised at a national level, with work currently underway through the Implementation Sub-Committee of the Australia and New Zealand Food Regulation Council to develop a national framework for a scheme, expected to be approved in 2012.

6. Australia passes “plain packaging” for cigarettes legislation

On 10 November 2011, the Gillard Government’s tobacco plain packaging legislation passed through the Australian Senate, meaning all tobacco products sold in Australia will need to be in plain packaging.

From 1 December 2012, all cigarettes will be sold in plain olive green packets with no trademark brand logos permitted. Companies will be able to print their name and the cigarette brand in small plain font.

The boxes will continue to carry health warning messages covering 75 per cent of the front of the pack and 90 percent of the back.

Ms Nicola Roxon (Federal Minister for Health and Ageing) said of the historic reform:

“We know that packaging remains one of the last powerful marketing tools for tobacco companies to recruit new smokers to their deadly products. In the future, cigarette packets will serve only as a stark reminder of the devastating health effects of smoking.”

Tobacco companies have made it clear they oppose the law and have flagged likely domestic and international court challenges, claiming the government has unlawfully interfered with their valuable intellectual property rights.

However, Ms Roxon says the Australian government is “determined to act in the best interests of the health and wellbeing of the Australian people”.

The debate in Australia has been closely followed around the world, including in Britain, Canada and New Zealand where similar plans to curtail branding are being considered. In the US, tobacco companies have sued the Food and Drug Administration (FDA). The tobacco companies allege the FDA has infringed their constitutional right to free speech by imposing graphic warning labels on the industry. More recently, Philip Morris has taken Australia to an international trade court over the tobacco labeling laws.

In the context of the food industry, these tobacco packaging laws may create a precedent for other consumer goods considered unhealthy. There also may be subjected to more restrictive marketing. Although it is too early to say that there is a definite precedent, the high priority the current Federal government gives to its National Preventative Health Agency may lead to a more restrictive marketing environment on foods and for beverages too.

7. WTO Panel report out on CoOL requirements

The World Trade Organization (WTO) has ruled that current US Country of Origin Labelling (CoOL) measures are inconsistent with the US’s WTO trade obligations.

The WTO had examined complaints by Canada regarding the United States’ current CoOL requirements.

The US Food, Conservation and Energy Act imposes mandatory CoOL for beef, pork, chicken, lamb and goat as well as some perishables sold by U.S. retailers.

The WTO ruled that the requirements discriminate against foreign livestock. In particular, the WTO found that Canadian and Mexican products were treated less favourably than US products. It also found that the requirements created unnecessary obstacles for international trade, such as additional costs for processors of Canadian livestock.

The US CoOL legislation was implemented by the US on an interim basis in September 2008 and came officially into force in March 2009. The U.S. Food, Conservation and Energy Act imposes mandatory CoOL for beef, pork, chicken, lamb and goat as well as some perishables sold by U.S. retailers.

The WTO had examined complaints by Canada regarding the United States’ current CoOL requirements and ruled that current U.S. Country of Origin Labelling (CoOL) measures are inconsistent with the U.S.’s WTO trade obligations.

The US will now be required to bring its measures into conformity with its WTO obligations.

Australian Implications

Australia is intending to implement a CoOL regime against imported beef and other meats. Currently, only pork and seafood require CoOL labelling under the Food Standards Code. However, under the new Standard 1.2.11 attached to Food Standards Australia New Zealand (FSANZ) Proposal P1011, unpackaged meats such as beef, lamb and chicken would be added to Clause 3 of Standard 1.2.11 by which the CoOL requirement is mandatory.

The extension of mandatory CoOL labelling in Australia is being advocated by consumer advocacy group CHOICE after concerns over imported beef following a change in Australia’s bovine spongiform encephalopathy (BSE) food safety policy in 2010, This import policy change, to allow countries previously ineligible to export beef to Australia to access the Australian market, has created a demand for the CoOL regime to extend in Australia to beef and other meats.

However, in the light of the Canadian success against the Americans at the WTO, it is possible  that countries such as Canada may threaten Australia with similar WTO proceedings for similar products in like manner to what the Canadians did for the United States.

8. Latest Harvard study reignites BpA debate

The latest study by researchers at the Harvard School of Public Health in the USA, has raised fresh debate over the regulation of Bisphenol A (BpA), a chemical compound often used as protective lining on the inside of cans containing food or beverages.

BPA has been considered to be cost effective and durable, which has led to its widespread usage, especially in baby bottles, reusable water bottles, microwave ovenware and food package linings. However, BpA has been linked to a range of disorders including cardiovascular disease, diabetes and obesity in humans. In the European Union and Canada, BpA use in baby bottles has previously been banned.

In January 2010, Australia’s food agency Food Standards Australia New Zealand (FSANZ) evaluated the safety of BpA in food. It concluded that levels of intake of BpA do not pose a significant human health risk for any age group. An international panel of experts established by the World Health Organization and the Food and Agricultural Organization of the United Nations also found that BpA is not accumulated in the body and is rapidly eliminated through urine.

However, in June 2010, the Australian Government announced the voluntary phase-out by major Australian retailers of polycarbonate plastic baby bottles containing BpA. The government claimed this was “in response to consumer preference and demand and not an issue about product safety”.

The Harvard study’s findings were published in the Journal of the American Medical Association on 22 November 2011. It is one of the first studies to quantify BpA levels in humans after ingestion of canned foods.

In the Harvard study, a group of people consumed canned soup each day for five days. The researchers found that these people had a more than 1,000 per cent increase in urinary Bisphenol A (BpA) concentrations compared with when the same individuals consumed fresh soup daily for five days.

The researchers led by Dr Jenny Carwile and Dr Karin Michels, Associate Professor in the Department of Epidemiology, recruited student and staff volunteers from the Harvard School of Public Health. One group consumed a 12-ounce serving of vegetarian canned soup each day for five days; another group consumed 12 ounces of vegetarian fresh soup (prepared without canned ingredients) daily for five days. After a two-day “washout” period, the groups reversed their assignments.

Urine samples of the 75 volunteers taken during the testing showed that consumption of a serving of canned soup daily was associated with a 1,221 per cent increase in BpA compared to levels in urine collected after consumption of fresh soup.

Senior author of the study, Dr Michels said, “The magnitude of the rise in urinary BpA we observed after just one serving of soup was unexpected and may be of concern among individuals who regularly consume foods from cans or drink several canned beverages daily. It may be advisable for manufacturers to consider eliminating BpA from can linings”.

9. FSANZ publishes 23^rd Australian Total Diet Study

The latest Australia-wide study of our food, investigated agricultural and veterinary chemicals, contaminants and nutrients in 92 foods common to the Australian diet. In total more than 1500 samples of food were taken as part of the study.

10. Australian government rejects traffic light labelling

The Federal Government has announced that it does not support the Traffic Light labelling system previously recommended by the Blewett Report. However, it does support the report’s recommendation on palm oil labelling in Australia.

The Federal Government’s position was released today, ahead of the meeting of the Australian New Zealand Food Regulation Ministerial Council scheduled for 9 December 2011. A report of the outcome of the meeting of the ministers appears as a separate article in this issue of FoodLegal Bulletin.