Foodlegal Bulletin, December 2009 - January 2010

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In recent issues of FoodLegal Bulletin, we have given prominent coverage to Australia’s recently introduced mandatory fortification standard for folic acid in breadmaking flour. In December 2009, Deakin Law Review published a fully referenced, peer-reviewed article by the FoodLegal Bulletin Editor, Mr Joe Lederman. The article discusses the legal deficiencies involved in the mandatory folic acid fortification and the vulnerability of affected consumers.

There has been controversial media attention recently over the use of Palm Oil in various food products. It has become an increasingly contentious food ingredient due largely to issues raised by environmental groups and also within the context of nutritional or health arguments. This article examines the issues and current evidence.

On 13 November 2009, Justice Buchanan of the Federal Court of Australia handed down his decision in the case Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd. This case provides detailed discussion and concrete examples of when an Australian court can find the labelling and marketing claims on a food product to be false, misleading or deceptive, in breach of Part V of the Trade Practices Act. This article discusses the case’s impact on legal issues such as health claims, puffery, usage of certified logos, implied comparative claims, use of disclaimers, consideration of the overall impression and the possible use of injunctions as a legal weapon. The outcomes and examples from this case ought to be considered by everyone responsible for the marketing and labelling of food products.

After many years of legal disputation in Federal Court proceedings, Cadbury Schweppes Pty Ltd has finally registered various shades of the colour purple in relation to its chocolate products. This article reviews the issues that needed to be considered by Australia’s Trade Mark registration authority, IP Australia as well as other legal and commercial issues that had to be considered by all parties concerned in the context of the previous litigation involving Darrell Lea Chocolate Shops Pty Ltd, as well as an examination of the broader context of methods of brand protection.

In December 2009, the New South Wales parliament assented to the Food Amendment (Beef Labelling) Bill, amending the Food Act 2003 (NSW). The aim of the Bill, in the words of the NSW Minister for Primary Industries, is ‘to address the issue of beef labelling by promoting consistent, consumer-orientated labelling systems that will inform consumer choices in relation to the quality of beef products.’ The legislation aims to provide consumers with detailed objective descriptors regarding cuts of beef, fat depth and the sex and age of the animal. Our article considers the broader implications for the food industry in relation to other legislative and industry-driven attempts to reduce the incidence of misleading and deceptive conduct.

In a surprise ruling last month, the High Court of Australia has limited the duty owed by publicans to patrons. This article reviews the case and examines the implications of this High Court decision and the wider implications for those who are in the business of serving or manufacturing food and alcohol.

This article details the numerous proposed amendments to the Australia New Zealand Food Standards Code as were announced on 16 December 2009, including:

• Potential expansion in the legal permissions for Stevia
• Primary Production and Processing for Raw Milk Products
• New definition of a “Wine Based Beverage” rejected by FSANZ
• Red 3 Erythrosine making a comeback?
• Numerous applications regarding foods derived from genetically-modified crops
• Review of cost recovery arrangements finalised

Further additional food law developments, including:

• USA  Food and Drug Administration clamp-down on Caffeinated Alcoholic Beverages
• UK Food Industry creates guidelines for serving sizes
• Unit Pricing Now Mandatory throughout Australia
• Woolworths gives ACCC undertaking not to discriminate against suppliers who wholesale