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Current developments in food law and policy in Australia and elsewhere (October 2017)

Published: 11 Oct 2017

Current developments in food law and policy in Australia and elsewhere

By Joe Lederman (Managing Principal, FoodLegal) and John Thisgaard (FoodLegal Consultant)

© Lawmedia Pty Ltd, October 2017


Food Standards Australia New Zealand (FSANZ) news

1.    FSANZ approves variations to the Food Standards Code

On 29 September 2017 FSANZ announced that it had approved variations to the Australia New Zealand Food Standards Code (Food Standards Code) resulting from the following Applications and Proposal:

·         A1139 – Food derived from Potato Lines F10, J3, W8, X17 & Y9

·         A1140 – Food derived from Herbicide-tolerant Canola Line MS11

·         M1014 – Maximum Residue Limits (2016)

FSANZ has notified its approval to the Australia and New Zealand Ministerial Forum on Food Regulation. The Forum has 60 days in which to either request FSANZ to review the approved variations or to inform FSANZ that it does not intend to request a review.


2.    FSANZ accepts Application A151 - Beta-galactosidase from papiliotrema terrestris as a processing aid (Enzyme)

On 5 October 2017 FSANZ announced that it had accepted Application A1151 by Amano Enzyme Inc. Japan to amend Schedule 18 of the Australia New Zealand Food Standards Code to include ß-Galactosidase from Papiliotrema terrestris as a Processing Aid.

An opportunity to comment will be made available at a date set by FSANZ.


3.    FSANZ accepts Application A1153 – Endo xylananse from t. reesei as a processing aid (Enzyme)

FSANZ announced on 29 September 2017 that it had accepted Application A1153 by AB enzymes GmbH to amend Schedule 18 of the Australia New Zealand Food Standards Code to include a genetically modified strain of Trichoderma reesei as permitted source for Endo-1,4 (3) - ß -xylanase (E.C.

An opportunity to comment will be made available at a date set by FSANZ.


4.    FSANZ calls for submissions on Application A1136 – Protein glutaminase as a processing aid (enzyme)

On 21 September 2017 FSANZ issued a call for submissions from industry on Application A1136 by Amano Enzyme Inc. to permit the use of protein-glutaminase from Chryseobacterium proteolyticum as a processing aid to improve protein functionality in baking, noodle, dairy, meat, fish and yeast products.

FSANZ CEO Mark Booth said “The enzyme improves emulsification, foam stabilisation and gelling and decreases flavour fade or ‘off flavour’ problems associated with flavour-protein interactions. FSANZ has determined there are no public health or safety issues associated with using this enzyme.”

Submissions are due by 2 November 2017.


5.    FSANZ rejects Application A1152 – Clarify the definition of fruit and vegetable wine

FSANZ announced on 21 September 2017 that it had rejected Application A1152 to amend the definition of fruit and vegetable wine in Standard 1.1.2-3 of the Code.

FSANZ rejected the application because it did not meet the mandatory information requirements in Part 3 of the FSANZ Application Handbook.


6.    FSANZ calls for submissions on Application A1143 – Food derived from DHA canola line NS-B50027-4

On 14 September 2017 FSANZ issued a call for submissions from industry on Application A1143 by Nuseed Pty Ltd to seek approval for food derived from canola line NS-B50027-4, genetically modified to produce omega-3 long chain polyunsaturated fatty acids, particularly DHA, in the seed.

Submissions are due by 26 October 2017.


7.    FSANZ approves draft variation from Proposal P1046 – L-amino acid acetate in Food for Special Medical Purposes

FSANZ announced on 14 September 2017 that it had approved a draft variation to the Australia New Zealand Food Standards Code (Food Standards Code) arising from Proposal P1046 to “permit the use of L-arginine acetate in food for special medical purposes and, thereby, mitigate a serious health risk and remove a negative effect on trade in food for special medical purposes.”

The draft variation was approved under Section 17 of the Food Standards Australia New Zealand Act 1991, which empowers FSANZ to approve such changes to the Food Standards Code upon giving public notice.


Australian Competition and Consumer Commission (ACCC) news

8.    Federal Court dismisses ACCC egg cartel appeal

The ACCC announced on 25 September 2017 that the Australian Full Federal Court had dismissed its appeal against a number of egg producers and two executives.

The ACCC had initially brought action in the Australian Federal Court claiming that the egg producers and executives had engaged in cartel conduct by attempting to establish an agreement to reduce the supply of eggs. The Federal Court dismissed the proceedings in February 2016, causing the ACCC to appeal to the Full Federal Court.

ACCC Chairman Rod Sims said “This case highlights the importance of the Federal Government’s Competition Policy Reform Bill, which introduces a concerted practices prohibition into Australian competition law”.


Other Australian food regulatory issues

9.    Small Business Ombudsman requests Amazon to comply with unfair contract legislation

The Australian Small Business and Family Enterprise Ombudsman announced on 20 September 2017 that it had written to Amazon to request that Amazon ensure compliance with Australia’s unfair contract terms legislation.

The request comes in anticipation of the launch of Amazon Marketplace in Australia, which will allow businesses to sell their goods online through Amazon. The Australian Consumer Law requires that standard form contracts initiated by large companies not contain terms that are unfair. In November 2016, these provisions were extended to also protect small businesses that enter into contracts with large companies.

Amazon has stated that it intends to adhere to all local laws in relation to its agreements with sellers using the platform.


10.  Ad Standards finds interactive billboard game for Kinder Surprise in breach of advertising initiative

In a decision dated 13 September 2017 the Advertising Standards Board (ASB) determined that an interactive advertisement by Ferrero Australia Pty Ltd for its Kinder Surprise products was in breach of advertising codes relating to marketing to children.

The advertisement was a game that appeared on interactive billboards (an interactive billboard is an advertisement that appears on a large touch screen with which the audience can interact). Before playing, a user had to press a button to confirm that they were over 14 years of age. The game contained visuals including a rainbow, a pony and bright colours. Complaints against the advertisement claimed that it promoted confectionery to children in breach of the Responsible Children’s Marketing Initiative (RCMI) established by the Australian Food and Grocery Council, and the Advertising Code in relation to food and Children’s communication.

The ASB held that the RCMI did apply to interactive billboards, overruling a previous interpretation that interactive billboards were not a “medium” for the purposes of the RCMI. The ASB noted that, despite the use of an age gate and the fact that the game was also used by adults, the visuals, theme and language used meant that the advertisement was directed primarily to children. The advertisement was found not to breach the Advertising Code, but was found to breach the RCMI, as it did not encourage good dietary habits and physical activity.


11.  TGA seeks comments on review of medicines and medical devices regulation

On 26 September 2017 the Therapeutic Goods Agency (TGA) announced that it is seeking comments from industry regarding proposed reforms to medicines and medical devices regulation.

The changes to regulation concern the following elements:

·         Introduction of a three-tiered framework for regulating complementary medicines (creating a new pathway between listed medicines and registered medicines)

·         Using reports from comparable overseas regulators in assessing new ingredients and registered medicines

·         Increasing the range of evidence that can be used in assessing proposed ingredients for listed medicines

·         Introducing a legislated timeframe and fee structure for complementary medicine and ingredient assessments

·         Enhancing post-market compliance monitoring for listed medicines

Submissions close on 7 November 2017.


12.  Fair Work Ombudsman warns franchisors to comply with new underpayment laws

On 9 October 2017 the national Fair Work Ombudsman issued a warning to franchisors to ensure that they are compliant with new underpayment laws.

The new laws impose liability on franchisors where underpayments to workers are made by franchisees. The new laws also impose penalties of up to $630,000 for businesses and $126,000 for individuals per contravention.


13.  Victorian government proposes changes to farming permit thresholds

On 20 September 2017 Victorian state government announced proposed reforms to farming permits that would impact the intensity of farming activities allowed without a permit.

Chicken farmers will be able to keep up to 200 birds without a permit, provided that the chickens remain at least 50 metres from residential zones and neighbouring houses. Pig farmers will be able to keep up to three sows or 10 pigs on at least five hectares provided that the animals remain at least 50 metres from residential zones and neighbouring houses.

The proposed changes are open for public comment until 14 November 2017.


14.  Australian beef exporters temporarily suspended from trade with Malaysia

Three Australian beef and sheepmeat exporters were temporarily suspended from bringing product into Malaysia on 18 August 2017.

The suspensions have resulted from an audit conducted by the Malaysian Department of Veterinary Services in May 2017. The Department has not publicly named the companies involved or issued reasons for the suspensions. Re-auditing will occur during October 2017 to provide an opportunity for the suspensions to be lifted.


International food regulatory issues

New Zealand

15.  MPI adjusts fishing limits

On 18 September 2017 the New Zealand Ministry for Primary Industries announced changes to catch limits for 18 fish stocks.

The changes have resulted in decreased catch limits for paua, bluenose, hake, shellfish and seaweed in certain parts of New Zealand. There has been an increase in catch limits for red gurnard, red cod and southern orange roughy in some areas.

The changes take immediate effect.


16.  Woolworths bans plastic bags in New Zealand

In October 2017 Woolworths announced that it will phase out plastic bags in its New Zealand Countdown stores.

Plastic bags will no longer be available in-store or through online shopping by the end of 2018. Other supermarket franchises in New Zealand which are connected with Woolworths will also phase out plastic bags, with a deadline to be set at a later date.


United States

17.  FDA proposes to extend Nutrition Facts label compliance date

On 29 September 2017 the US Food and Drug Administration (FDA) announced that it proposes to extend the compliance date for new rules regarding the Nutrition Facts label and serving size calculation from July 26 2018.

The extension comes in response to concerns expressed by food companies and trade associations regarding the time needed to achieve full compliance and obtain clarification about the new labelling obligations.

The proposed compliance date extension is 1 January 2020 for manufacturers with US $10 million or more in annual food sales, and 1 January 2021 for manufacturers with less than US $10 million in annual food sales. Submissions from industry on the proposed extension are sought before 31 October 2017.


18.  Gatorade settles lawsuit over misleading game

In a statement dated 21 September 2017 the Californian Attorney General announced that Gatorade had reached a US$300,000 settlement regarding alleged misleading representations made in connection with Gatorade beverages.

The representations relate to a mobile video game which depicts an athlete running faster when they touch Gatorade icons, and running slower when they touch water icons. The complaint was made by the Californian Attorney General, and claimed that the representations were misleading in breach of Californian law.

A large portion of the settlement will be used to fund research on water consumption and nutrition. As part of the settlement, Gatorade must also disclose endorser relationships in social media posts and must not advertise in media where children under 12 comprise more than 35 percent of the audience.


19.  San Francisco law requires large retailers to report on antibiotic presence in meat

In October 2017 San Francisco lawmakers passed a law requiring retailers of meat products to report on the use of antibiotics in the animals.

The law requires retailers to collect data from suppliers about antibiotic use and practices for an annual report. The data must be submitted to the Environment Department before being made public. Retailers are responsible for ensuring the accuracy of the information (for example through obtaining third party certification).


20.  FDA announces steps for agricultural water regulation

On 12 September 2017 the FDA announced a number of steps to help agricultural companies achieve compliance with the new Produce Safety Rule established by the Food Safety Modernization Act.

The steps specifically relate to the regulation of water used for agricultural purposes, and include the following:

·         A proposed rule has been announced which would extend compliance dates for agricultural water requirements to between 26 January 2022 and 26 January 2024 depending on the size of the firm.

·         The FDA will engage in additional stakeholder discussions regarding agricultural water standards.

·         The FDA will continue to collate water testing methods that satisfy the Produce Safety Rule.


European Union

21.  European Commission issues guidelines to address dual food standards

On 26 September 2017 the European Commission issued a set of guidelines on the application of EU food laws to products that comply with dual standards.

The guidelines were issued in response to the practice of some food companies across Europe that apply different food standards in different EU member states, resulting in inconsistent quality among the same branded product. The guidelines state that it is against EU consumer laws to market identically branded products in a way that misleads consumers.


22.  EFSA seeks submissions on dietary reference values for sodium

On 29 September 2017 the European Food Safety Authority (EFSA) issued a public consultation on its draft scientific opinion on dietary reference values for sodium.

The consultation specifically relates to the selection and use of evidence by EFSA in assessing dietary reference values. The values will be assessed by reviewing the relationship between sodium intake and health outcomes.

Submissions are due by 12 November 2017.


United Kingdom

23.  FSA publishes food enforcement statistics

On 18 September 2017 the UK Food Standards Agency (FSA) released food law enforcement statistics for 2016/17.

The statistics cover enforcement measures taken by local authorities across the UK. Relevant trends include:

·         There has been an increase in food hygiene compliance in food restaurants and establishments

·         The percentage of food hygiene interventions has increased from 84% to 85%

·         There has been a decrease in the number of planned interventions for food standards by enforcement authorities



24.  China extends CBEC and compliance date for food imports

On 20 September 2017 the Chinese State Council resolved to extend the grace period for compliance with new rules for Cross-Border e-Commerce (CBEC).

The new rules apply to products shipped to approved warehouses and distributed by e-commerce platforms within China’s CBEC zones. CBEC zones implement reduced testing and impose fewer barriers to trade in China.

The new rules are now due to be implemented at the end of 2018.