Recent Food Law and Policy Developments

Date Published

Author

By Joe Lederman

FoodLegal Lawyers and Consultants

© Lawmedia Pty Ltd, March 2011

• Implementation of new NSW meat labelling laws begins
• New Zealand set to introduce new Food Bill
• Junk food advertising Bill voted down in Australian Senate
• South Australia moves to introduce Kilojoules on menus
• Northern Territory Cash-for-Containers Scheme becomes law
• Legal dispute between Red Bull and AQIS set to test the ambit of the Trans-Tasman Mutual Recognition Act
• Government and Industry at loggerheads over Asian honeybees

1.    Implementation of new NSW meat labelling laws begins

From 1 March 2011, the Food Amendment (Beef Labelling) Act (NSW) (The Amendment Act) is effective. Any meat label that infringes the requirements set out in the Amendment Act can result in the incurrence of a fine of up to $275,000 (2500 penalty units) for any infringing food company or $55,000 (500 penalty units) where the food business is conducted by an individual.

The Amendment Act came out of a private member’s Bill by independent politician Richard Torbay. It was passed by the NSW Parliament in December 2009 and proclaimed law in August 2010. However, the Amendment Act was given a 6-month delay period, and the relevant provisions became operational on 1 March 2011.

The Amendment Act relates to the labelling and grading of beef. Section 18 of the current NSW Food Act 2003 (NSW) had always made it an offence to engage in misleading or deceptive conduct in relation to food intended for sale or the sale of food. Section 18 also made it an offence to falsely describe such food. Section 22 of the Food Act 2003 set out the various circumstances in which food is taken to be falsely described.

What the Amendment Act does is that it introduces a new circumstance where meat is taken to be “falsely described”. It provides that meat is “falsely described” if it uses descriptors in the AUS-MEAT Domestic Retail Beef Register, but either does not comply with those descriptors or has not been assessed in accordance with the requirements of the Register.

The AUS-MEAT Domestic Retail Beef Register is a reference of beef descriptors. Its object is to allow consistent and accurate trade descriptions to be applied to beef meant for retail sale to consumers. By making it an offence to use descriptors inconsistent with the requirements and standards of the Register, the Amendment Act was intended to reduce consumer confusion over the beef labelling messages and vocabulary used in the industry.

However, the interesting question to ask is whether the introduction of this new law was a catalyst for Coles’ ‘hormone-free’ beef campaign which makes no mention of the prescribed regulatory meat descriptors in its advertising.

FoodLegal Bulletin has previously examined the Food Amendment (Beef Labelling) Act when it was first passed as a private member’s Bill in December 2009. See our December 2009-January 2010 issue of the FoodLegal Bulletin.

 2.    New Zealand set to introduce new Food Act

The New Zealand Parliament is currently considering a controversial new Food Bill 2010 to replace its Food Act 1981 (NZ). If passed, the Food Bill will impose new offences and higher penalties for non-compliance and make it a requirement that all food intended for export comply with New Zealand laws.

Offences and Penalties: The new Food Bill intends to introduce a broader range of offences and penalties than those under the current Food Act 1981 (NZ). Subpart 5 of the Food Bill lists a total of 22 offences under the proposed legislation, including offences involving:  

• knowingly or recklessly endangering or harming members of public or an individual,
• knowingly, recklessly or negligently creating or increasing risk;  
• intentionally defeating purpose of Act;
• knowingly or recklessly selling, or importing non-complying food;
• publishing non-complying advertisement; and
• other offences related to food and the advertising, sale and marketing of food.

The penalties have also been increased under the proposed Food Bill. Under Section 11Q of the Food Act 1981, contravention of food standards or requirements for certain prescribed foods could result in a fine of only NZ$3000 for an individual, NZ$5000 if the individual committed the offence intentionally; and up to only $5000 for a corporation or $20,000 if the corporation committed the offence intentionally. However, under the proposed new legislation, the fines are considerably higher, being up to NZ$500,000 for a corporation and NZ$50,000 for an individual. While the New Zealand Food and Grocery Council argues these penalties are excessive, they are more in line with the dollar penalties (albeit in New Zealand dollars) prescribed under the equivalent legislation in Australian State jurisdictions.

Food intended for export: The Explanatory Memorandum of the legislation claims that it is intended to be “a comprehensive regime for food safety and suitability and applies to businesses producing food in New Zealand regardless of whether that food is intended for the domestic market or export” (emphasis added). Nonetheless, it should be noted that exporters are able to apply for exemption for specific foods and markets under the proposed Section 316 of the legislation. 

This provision has led to criticisms from the New Zealand food industry, as it would effectively require a New Zealand exporter of food (except to Australia) to comply with domestic New Zealand food manufacturing and labelling laws. The New Zealand Food and Grocery Council (NZFGC) in particular argues in its submission to the Primary Production Select Committee that this requirement could create problems for exporters where there exist inconsistencies between New Zealand food labelling requirements and the food labelling requirements of other countries. This would lead to a flood of applications for exemption and result in higher costs and more delays for the New Zealand food industry of export sector.

3.    Junk food advertising Bill voted down in Australian Senate

The Protecting Children from Junk Food Advertising (Broadcasting Amendment) Bill 2008, introduced by the Greens into the Australian Senate in 2008, have been recently voted down by both Government and Opposition Coalition MPs.

The Bill sought to amend the Broadcasting Services Act 1992 and the Schools Assistance (Learning Together—Achievement Through Choice and Opportunity) Act 2004 (‘School Assistance Act’).

The Bill’s proposed change to the Broadcasting Services Act 1992 had sought to proscribe the broadcasting of junk food or beverage advertisements and sponsorship announcements during the hours of 6am to 9:30pm. This was said to be aimed at tackling obesity, especially among school-aged and preschool children.

The proposed amendment to the Schools Assistance Act 2004 requires as a condition of financial assistance to schools that they do not display advertisements or sponsorship announcements relating to food and beverage manufacturers, distributors and sellers.

An earlier 2008 Senate Inquiry into the Bill had concluded that the there was already in place a wide range of Government and industry initiatives for protecting children from advertising of so-called ‘junk food’ and other more effective measures for preventing the rise of obesity. The proposed legislative changes were also regarded as premature. See our previous article “Proposals in Victoria requiring fast food chains to display energy content”.

4.    South Australia moves to introduce Kilojoules on menus

South Australian Health Minister John Hill has announced a move to make it mandatory for all major fast food retailers in South Australia to display kilojoule information on their menu boards, websites and leaflets.

The new regulations, made under the Food Act 2001 (SA), would require fast food chains with 20 or more stores in South Australia or 50 or more stores nationally to:

• state the kilojoule content of each item while clearly, legibly and prominently featuring the average adult daily energy intake of 8700kj
• place the information alongside the price of the product.

Any outlet that fails to comply with these requirements could be fined, prosecuted, or even named on the Department of Health website.

This South Australian move follows earlier moves by both the Victorian and New South Wales Governments to mandate the display of kilojoules information on menus at major food retail outlets.

5.    Northern Territory Cash for Containers Scheme becomes law

In our February 2011 issue, FoodLegal Bulletin reported that the Northern Territory Cash-for-Containers scheme was due to be considered by the Northern Territory Legislative Assembly in February 2011.

The Environmental Protection (Beverage Containers and Plastic Bags) Bill 2010 has now been passed. The proposed infrastructure to operate the legislation will be in place in late 2011 to set up a Cash-for-Containers Scheme that will refund 10 cents for each eligible can, bottle and drink container collected and returned to shop or depot.

6.    Legal dispute between Red Bull and AQIS set to test the ambit of the Trans-Tasman Mutual Recognition Act

Red Bull is currently involved with a dispute with the Australian Quarantine and Inspection Service (AQIS) over the seizure of two shipments of caffeinated beverages. See our article “Red Bull in dispute over Trans-Tasman Export Route” in this issue.

7.    Government and Industry at loggerheads over Asian honeybees

The Australian honey industry and the Federal Government have been in disagreement over a Federal Government decision to scrap an Asian honeybee eradication program.

The Asian honeybee is an invasive species that robs hives, competes with commercial European honeybees for floral resources, and puts European honeybees in danger of starvation. They are also a natural host for a bee parasite, varroa mite jacobsonii, which is a major threat to the Australian honey industry.

The Asian honeybee was first detected near Cairns in May 2007 and was believed to have come from Papua New Guinea. A national cost-shared program aimed at their eradication was implemented and overseen by a taskforce set up within the Department of Agriculture, Fisheries and Forestry (DAFF), known as the Asian Honeybee National Management Group (NMG).

On 31 January 2011, the NMG met to consider whether it was still technically feasible to eradicate the honeybee species. The NMG decided it was no longer technically feasible to achieve full eradication because of the species’ rapid breeding speed, ability to travel long distances (especially with assisted movement on vehicles and trains) and limitations of current surveillance methods, making it difficult to locate and destroy all nests. 

Following the NMG meeting, a decision to scrap the current eradication program was made by the Federal Government.

However, both the Australian Honey Bee Industry Council and the Australian Food and Grocery Council (AFGC) have protested against this decision, claiming that the pest species could be eradicated if the Federal Government funded a $10 million eradication program over two years. The Australian Greens are calling for a full cost benefit analysis on the agricultural, environmental and industrial impact to be carried out before any decision to scrap the eradication program is finalised.