By Joe Lederman and Alexandra Jannetto
Read further for additional food law developments, including: 1. NSW Food Authority removes some Energy Drinks from shelves On 3 September 2009, the New South Wales Food Authority (NSW Food Authority) issued a release announcing an investigation into caffeine levels in energy drinks. The New South Wales government is considering an initiative to ensure that energy drinks that do not comply with the Food Standards Code are removed from sale. Primary Industries Minister Ian Macdonald recently was quoted in a NSW Food Authority media release as saying: “It’s simply unacceptable that these products, clearly marketed at youths, have appeared in the market so the Government has taken immediate action to get these illegal products off the shelves." The results found that of 70 energy drinks investigated, 16 drinks complied with the requirements prescribed by the Australia Zealand Food Standards Code (Food Standards Code). In 8 drinks, caffeine levels were more than 30% above the legal limit, while in 30 drinks, caffeine levels were 1-15% over the level limit and in 16 drinks, caffeine levels were between 16-30% over the legal limit.
The NSW Authority began testing after concerns were raised about the negative side effects seen amongst school children who were consuming the energy drinks. Other jurisdictional enforcement agencies in Australia and New Zealand are also collecting local data for further discussions at an inter-governmental level about caffeine in various products.
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On 6 October 2009, it was announced that the NSW Food Authority had removed five energy drinks from the market. The NSW Food Authority media release dated 6 October 2009 can be found here.
2. Apple Computers takes on Woolworths in trademark application
Earlier this year, Woolworths launched a new logo as part of its corporate rebranding. According to Woolworth, its new logo is a stylised ‘w’ that looks like a piece of peeling green fruit with a stem leaf.
Recently, however, technology corporation Apple has challenged Woolworths in a bid to prevent Woolworths from using its new ‘w’ logo, arguing that it infringes the Apple Computers trademark, which is a silver apple. By taking legal action, Apple Computers, like many other companies, not only seeks to protect itself against any potential infringements of its intellectual property rights but also seeks to protect future brand-leverage and merchandising opportunities.
This case is currently before Intellectual Property Australia (IP Australia), the Australian agency that grants rights in patents, trade marks and designs. IP Australia must determine whether the Woolworths logo could create confusion for consumers.
Suggestions have been made from many quarters, some in jest, about the lengths to which Apple Computers has sought to protect its brand. One wag, in a newspaper letter to the editor, suggested that Tasmanians might be just as concerned that the State of Tasmania (which takes pride in promoting Tasmanian apples) is legally vulnerable simply because on a map Tasmania appears to be in the shape of an apple!
3. ACCC strikes deal with supermarkets in relation to anti-competitive leases
On 18 September 2009, the ACCC announced that an agreement had been reached with Coles and Woolworths to phase out all anti-competitive provisions in the supermarket giants’ leases. The anti-competitive clauses prevent shopping centres from renting space to a second supermarket. The agreement, in the form of a court enforceable undertaking, was reached after investigations conducted by the ACCC during its Grocery Inquiry in 2008 revealed that over 700 supermarket leases had potentially restrictive provisions, which included all existing leases and future arrangements.
While the ACCC heralds this agreement as a “major breakthrough for grocery competition in Australia” by reducing barriers to entry for new players, Nationals Senate Leader Barnaby Joyce has accused the ACCC of ‘backing off’ from Coles and Woolworths.
4. FSANZ rejects ‘Vegetarian’ labelling
On 21 August 2009, FSANZ announced it had rejected Application 545 – Vegetarian labelling. The Application had requested the Food Standards Code be amended to require that the labelling of all packaged foods not clearly being sold as animal products be labelled as either ‘suitable for vegetarians’ or ‘not suitable for vegetarians’. This request was made on the basis that current labelling requirements did not allow vegetarian consumers to assess whether a food is suitable for their consumption.
FSANZ’s reasons for rejecting this Application include the following:
The FSANZ information paper on this Application rejection can be found here.
5. New survey launched in NZ to look at antibiotic resistant bacteria in the food chain
On 5 October 2009, the New Zealand Food Safety Authority (NZFSA), which is the government regulator responsible for food safety in New Zealand, announced that it had launched a new survey in an effort to reduce levels of antibiotic resistant bacteria in the food chain. Antimicrobial resistant (AMR) bacteria do not respond to antibiotics and is becoming increasingly linked with human illness and death. In New Zealand, there is currently little data published on levels of AMR bacteria in food for human consumption or monitoring of the bacteria. It is believed that the majority of cases are due to person-to-person transmission; however there is also potential for humans contracting AMR bacteria through the food chain.
The survey will look at freshly dressed carcasses of calves, pigs and broiler poultry in Zealand abattoirs and processing plants, and will look at Campylobacter, Salmonella, E. Coli and Enterococcus bacteria. The NZFSA says the results of the survey will help NZFSA assess whether there is a need to establish a monitoring programme and whether specific risk management action is needed.
For more information click here.
6. Call for submissions on Plant Stanols Application
On 1 October 2009, FSANZ released its Assessment Report containing draft regulatory measures for Application A1024 – Equivalence of Plant Stanols, Sterols & their Fatty Acids Esters. The Applicant, Raisio Nutrition Ltd, seeks recognition of the equivalence of plant stanols and plant sterols and their fatty acid esters (known as 'phytosterols') so that they are considered as a single chemical class of substances in the Food Standards Code. The Applicant contends that by accepting this, it will ensure consistency with international regulatory permissions for ‘phytosterols’ and simplify permissions for the addition of plant sterols to food in the Food Standards Code.
Currently, the Food Standards Code permits the addition of plant sterols to food to be linked to a particular type (free or ester form), source (vegetable or tall oil) and specific specification of the preparation. Approval of this Application would make the specific permissions for plant sterols more generic permissions.
FSANZ has called for written submission for the purpose of approving, amending or rejecting the draft food regulatory measures found in the Assessment Report by 6pm (Canberra time) on 11 November 2009.
The Assessment Report on Application A1024 can be found here.
For further reading on this issue, see FoodLegal’s article “Approving Stanols for use in Food” in the August 2009 issue of FoodLegal Bulletin.
7. Several New Applications for amending the Food Standards Code
FSANZ has accepted two new Applications for amending the Australia New Zealand Food Standards Code (the Food Standards Code):
Application A1034 – Advantame as a High Intensity Sweetener: The Applicant, Ajinomoto Co Inc via Cantox & Biosearch Consulting, seeks approval to use Advantame in table top sugar substitutes and a range of powdered beverages including fruit drinks, milks and milk flavoured drinks, instant tea and coffee, and protein drinks.
Application A1035 – Food derived from Insect-protected Soybean MON 88701: The Applicant, Monsanto Australia Limited, seeks pre-market approval for food derived from insect-protected soybean genetically modified to provide protection from feeding damage caused by Lepidopteran pests in tropical and subtropical growing regions.
Application A1034 will be assessed under the Major Procedure and completion by FSANZ is expected in early December 2010. Application A1035 will be assessed under the General Procedure and completion by FSANZ is expected to be in early September 2010.
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