Recent Food Law and Policy Developments

Date Published

Author

By Joe Lederman

FoodLegal Lawyers and Consultants

© Lawmedia Pty Ltd, February 2011

• Blewett Review Report foreshadows food labelling law overhaul in Australia
• Government Auditor-General calls for more rigorous food recall system
• ACCC actions on fruit depictions and brand names
• Container Deposit Scheme for Northern Territory
• WA case of growers versus processors

(1)  Blewett Review Report foreshadows overhaul of food labelling law in Australia

On 28 January 2011, the final report for the Blewett Review on Food Labelling and Policy was released. The Review concluded with 61 recommendations for the Australia and New Zealand Food Regulation Ministerial Council.

The Blewett Review Report called for some major changes to food labelling laws in Australia and New Zealand that could see all sectors of the food and beverage industry subjected to a greater number of mandatory labelling requirements. Furthermore, the Blewett Report has recommended a traffic light labelling scheme in Australia in relation to food products regarded as unhealthy.  

(2)  Government Auditor-General calls for more rigorous food recall system

In November 2010, the Australian National Audit Office (ANAO) issued the Auditor-General Audit Report No 15 2010-2011 on FSANZ (ANAO Report). Within the ANAO Report, the ANAO specifically reviewed two trade recalls that had occurred in 2009 which the ANAO claimed had presented causes for concern.

The first recall had involved semiâïïï��ï��ïï��ï��ïïï��ï��ïï��ï��dried tomatoes, after the product was alleged to be the cause of a Hepatitis A outbreak, but 70 per cent of the fruit had not been recovered because of traceability issues. The second trade recall issue identified by the ANAO involved pawpaw fruit infected with a bacterial skin contamination. The ANAO noted 55 per cent of the infected pawpaw fruit had not been recovered and that much of the fruit had already been on-sold to the public.

As our FoodLegal Bulletin article reported in August 2010, FSANZ had abandoned its own proposal to address traceability in relation to semi-dried tomatoes in particular, and traceability for all produce would need to be addressed in a proposed Primary Production and Processing Standard.

In the ANAO Report, the Auditor-General suggested that:

A more rigorous approach to assess actions detailed in sponsors’ reports would assist FSANZ to determine whether the most appropriate action had been taken to reduce risks to consumers. FSANZ is working through food incident and recall protocols to address traceability issues to prevent further products entering the market in similar circumstances. In the interim FSANZ’s treatment of possible recalls of a similar nature is particularly important as the information that FSANZ provides to the ACCC is used to satisfy its Minister that a recall has been conducted satisfactorily and that consumers were protected. Additionally, the requirement for consumers to be advised only applies to a consumer recall and not a trade recall.

(3)  ACCC actions on fruit depictions and brand names

The Australian Competition and Consumer Commission (ACCC) has recently taken action against two Australian companies for misleading consumers under sections 52 and 53 of the Trade Practices Act (now replaced by sections 18(1) and 29(1)(a) of the Australian Consumer Law).

In both instances, the companies made court-enforceable undertakings to cease making the allegedly misleading and deceptive representations and introduce corrective measures.

FoodLegal Bulletin provides deeper analysis of both cases with references and commentary comparing previous case law – in 2 separate articles in this FoodLegal Bulletin.

(4)  Container deposit Scheme for Northern Territory

Anticipated to be implemented in late 2011, the proposed Northern Territory ‘Cash for Containers’ scheme will closely resemble the model operating currently in South Australia.

The Environmental Protection (Beverage Containers and Plastic Bags) Bill 2010 has been presented to the NT Parliament and will be considered by the Legislative Assembly in February 2011.

The proposed legislation covers the types of drink containers that will be eligible for a refund on return to shop or depot, the laws governing the movement of those containers, and the collection and administration of money. Consultations with industry and community stakeholders are still in progress.

The amount redeemable will be 10 cents for each drink container collected (consistent with South Australia), and eligible containers will need to be returned either to collection depots in major cities, or collection points in regional locations. Only eligible containers produced after the scheme is implemented will be redeemable.

The industry has opposed the scheme’s implementation, with the Australian Food and Grocery Council stating in a media release that there had been inadequate cost-benefit analysis for the proposed scheme.

The Northern Territory Government has expressed a view, based on the South Australian model, that this scheme will contribute to a 50% reduction in the amount of rubbish going to the tip and reduce litter on Territory roads.

(5)  WA case of growers versus processors

The Chicken Meat Industry Act 1977 (“the Act”) was originally introduced to facilitate bargaining between chicken growers and chicken processors in Western Australia and regulate the balance of power between the two sides.

In February 2010, upon the request of the WA Treasurer, the Economic Regulation Authority (ERA) conducted a 5 yearly review of the Act to determine whether the Act’s continuation was justified. The final report (ERA Report) was delivered to the WA State Government on 1 November, 2010.  

The ERA Report concluded that there had been a collapse in the collaborative relationship between growers and processors. Chicken processors considered there to be a bias in favour of growers under the Act.

While WA chicken meat consumption has progressively increased over the past 10 years, total WA chicken meat production for the same period remained the same, creating a chicken meat deficit of 14 percent that was met by interstate imports. As a result, the ERA concluded that the Act should be allowed to expire at the end of the year.

The ERA examined the systems employed by other Australian states, where growers could negotiate individually with the processors, and some groups of growers had gained authorisation from the Australian Competition and Consumer Commission (ACCC) to collectively negotiate with a processor. The ERA noted that growers in WA could (should they wish to do so) be given the same authorisation by the ACCC for collective bargaining.

In light of the ERA’s recommendations, WA Agriculture and Food Minister Terry Redman announced, on 23 December 2010, that the Act would expire at the end of the year.  

The WA Department of Agriculture and Food also planned an industry forum to summarise the WA government strategy for chicken meat growing in WA.