By Joe Lederman and Charles Fisher More of the latest food law developments including: 1. Work to continue on ‘Special Purpose Foods’ Standard The Food Regulation Standing Committee (FRSC), the body which advises the Ministerial Council that in turn gives policy directions to Food Standards Australia New Zealand (FSANZ) when FSANZ is required to consider amendments to the Australia New Zealand Food Standards Code (the Food Standards Code), has released a Policy Options Paper for Special Purpose Foods. FRSC is seeking comments and questions, particularly on proposed definitions, by Monday 2 March 2009. Part 2.9 is the section of the Food Standards Code reserved for Special Purpose Foods and already contains several standards for some Special Purpose Foods, such as ‘Infant Formula Products’, ‘Food for Infants’, ‘Formulated Supplementary Foods’ and ‘Formulated Supplementary Sports Foods’. New standards are required to accommodate the development of additional Special Purpose Food products as some of these products challenge the conventional definition of a ‘food’. If you or your company is involved in the manufacture or marketing of dietary supplements, formulated foods, nutraceuticals (referred to in Europe as ‘parnuts’), functional foods or complementary medicines, and are interested in preparing a submission to FRSC, please feel free to contact Joe Lederman at FoodLegal. 2. Preventative Health Taskforce recommends food labelling on restaurant menus In January 2009, the Federal Department of Health and Ageing called for submissions on the technical paper Obesity in Australia: a need for urgent action, published by the Preventative Health Taskforce in October 2008. This Taskforce was established in April 2008 to provide the government and health providers with preventative health programs and strategies. In the technical paper, the Taskforce advised that one of its initiatives to halt and reverse the rise of obesity in Australia is to improve public education and information by enhancing food labelling to encourage consumers to make healthier eating choices. The Taskforce has suggested that simple and comprehensible information on trans fat and saturated fat, sugar and salt and standardised serve size be displayed in restaurants, food halls and takeaway shops. This form of food labelling is similar to the concept of front-of-pack labelling, which provides information on the front of a package of the nutritive aspects of the food product (please see our article ‘Front-of-pack labelling and its Legal Implications’ in the November 2008 issue of FoodLegal Bulletin). The Taskforce is to construct menu labelling guidelines to be included in its ‘National Preventative Health Strategy’ to be submitted to the Federal Department of Health and Ageing by June 2009. 3. The Heart Foundation’s Tick program – Further developments The National Heart Foundation of Australia has been quite successful in developing the Heart Tick logo as a signifier of a healthier choice of food (for further discussion, see our article “Legal issues concerning third party endorsements for health claims - Ticking the right boxes?” in the February 2008 issue of FoodLegal Bulletin). However, this success has coincided with numerous food companies also adopting ‘ticks’ in their marketing materials. According to an article first published in the Sydney Morning Herald on 17 January 2009, the National Heart Foundation has sought legal advice on whether use of similar ‘tick’ logos could result in legal action such as passing off or trade mark infringement. Coles supermarkets have received complaints from both the Heart Foundation and consumers in relation to its “SmartBuy” and “You’ll Love Coles” house brands due to the ‘ticks’ that are very similar to the Heart Tick logo. However, Coles announced in January 2009 that it would be undergoing the expensive endeavour of rebranding these products just as the Sydney Morning Herald published an article revealing how unhealthy many of those ‘ticked’ products were. Furthermore, the Heart Foundation has expressed its intention to make public its own criteria by which food companies can obtain the Heart Tick program endorsement. FoodLegal believes that such transparency would be welcomed by consumers and FoodLegal will provide a more detailed legal analysis on these issues in a future FoodLegal Bulletin article. 4. Two-headed fish spark queries on Australian regulation of pesticide residue in food In December 2008, the New Zealand regulatory body Agricultural Compounds and Veterinary Medicines banned the use of the pesticide endosulfans. This move has put pressure on the Australian regulators to justify its position to continue to permit the use of the toxic chemical. This pressure escalated when a fish hatchery near Noosa, who happened to be next door to a macadamia plantation that used endosulfans, found 90% of a batch of fish was born with two heads. Furthermore, according to a report in The Australian on 27 January 2009, a formal request has been made to the Queensland Health Department to investigate whether use of the chemical can be linked to a cluster of cancer diagnoses in the area. While the Queensland government has formed a special taskforce to investigate the incidents, regulation of agricultural and veterinary chemicals is handled nationally by Australian Pesticides and Veterinary Medicines Authority (APVMA) at the agricultural level, as well as by the Maximum Residue Limits in Food prescribed in the Food Standards Code (as enforced by the Health Departments in each State and Territory). The latter provisions in the Food Standards Code do not apply in New Zealand which has its own regime regulating Maximum Residue Limits. 5. Western Australian government announces GM canola trials On 22 December 2008, the Western Australian government has announced that it will be trialling a limited number of hectares of GM canola. Presently in Australia, only the New South Wales and Victorian governments have lifted their moratoria on genetically–modified canola cultivation, permitting state-wide use of particular herbicide-resistant strains. In response to farmer, consumer and retailer concern in relation to contamination of organic or non-GM seed or crop with the GM counterpart, the Western Australian government has released a Frequently Asked Questions document which states: The Government is not considering the introduction of strict liability legislation. Australian and international reports have concluded that common law is sufficient to deal with any issues that may arise from growing GM crops. As a condition of allowing the trials the GM crops will need to be grown using Best Management Practices. Harvesting and transport of the canola will be undertaken in such a way as to prevent seed loss outside the sown area. The Roundup Ready canola will be delivered to specific delivery points in the CBH system where it can be segregated and monitored. Cross pollination between canola varieties has been studied in numerous scientific literature. Differences in outcrossing depends on varieties, pollen source, recipient crop and environmental conditions. QUESTIONS The regulatory body (OGTR) that approved the commercial release of GM canola in 2003 stated that levels of outcrossing will be very low, decreasing significantly as distance away from the pollen source increases. The trials will monitor this to ensure that the agreed government and industry standard for non-GM canola can be met. FoodLegal has previously written on some of these issues: please see our article “Overcoming difficulties for co-existence between GM and non-GM crops” in the June/July 2008 issue of FoodLegal Bulletin. 6. ATO releases draft list of effective lives for soft drink/glass manufacturing assets On 28 January 2009, the Australian Taxation Office (ATO) released a draft list of 'effective lives' for capital allowances/depreciation write-offs in relation to soft drink and glass product manufacturing assets. This draft list has been released for comment as a step in the administrative process involved in the Effective Life Review of Soft Drink, Syrup and Cordial Manufacturing Assets. The ATO is seeking comments on the draft list by 27 February 2009. The new effective life determinations for these assets are proposed to take effect from 1 July 2009.
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