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Current developments in food law and policy in Australia and elsewhere

Published: 11 Sep 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, September 2017


Food Standards Australia New Zealand (FSANZ) news

1.    Food Standards Code Amendment number 172 gazetted

On 7 September 2017 FSANZ announced that Australia New Zealand Food Standards Code (Food Standards Code) Amendment number 172 had been gazetted.

The Amendment makes changes to the Food Standards Code arising from the following Applications and Proposal:

               Application A1125 – Endo ß(1,4) Xylanase as a Processing Aid (Enzyme)

               Application A1126 – Pectins & Carrageenan as Processing Aids in Wine (Fining Agent)

               Application A1135 – Beta-galactosidase as a Processing Aid (Enzyme)

               Proposal P1045 – Code Revision (2017)

2.    FSANZ accepts Application A1150 - Glucosylated Steviol Glycosides

On 21 August 2017 FSANZ announced it had accepted application A1150 by PureCircle Limited to permit glucosylated steviol glycosides as an intense sweetener in various foods.

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

3.    FSANZ calls for submissions for Proposal P1046 - L-amino acid acetate in food for special medical purposes

On 21 August 2017 FSANZ issued a call for submissions from industry regarding Proposal P1046 to remove a negative effect on trade in food for special medical purposes by permitting acetate forms of L-amino acids. FSANZ has declared the Proposal to be urgent under the FSANZ Act.

Submissions were due by 28 August 2017.  

4.    FSANZ approves Application A1127 – Processing aids in wine

FSANZ announced on 21 August 2017 that it had approved Application A1127 to seek permission for the use of four processing aids, silver chloride, ammonium bisulphite, chitin-glucan and PVI/PVP as processing aids for wine.

FSANZ has notified the Australia and New Zealand Ministerial Forum on Food Regulation of its approval. The Forum has 60 days to either request FSANZ to review its decision, or to inform FSANZ that it does not wish to request a review.

Australian Competition and Consumer Commission (ACCC) news

5.    ACCC proposes authorisation of establishing Woolworths discount programs at BP sites

On 29 August 2017 the ACCC issued a draft decision proposing to authorise an arrangement between Woolworths and BP that would allow BP service stations to participate in Woolworths’ customer loyalty programs if BP acquires Woolworths’ service stations.

The draft approval is conditional on any fuel discounts not exceeding 4 cents per litre. ACCC Chairman Rod Sims said “[t]he ACCC considers that fuel discount offers in excess of 4 cents per litre could have longer-term effects on the structure of the retail fuel markets and that the detriments from reduced competition may outweigh any benefits.”

Submissions on this draft approval are due by 18 September 2017. The ACCC will undertake a separate market analysis regarding the proposed acquisition of Woolworths’ service stations by BP.

Other Australian food regulatory issues

6.    Update to Country of Origin requirements for unpackaged food products

On 15 August 2017 the Federal Department of Industry, Innovation and Science announced an update to the Country of Origin Food Labelling Information Standard (the Information Standard).

The update applies to retailers of unpackaged food products. Minimum font sizes for Country of Origin declarations displayed in association with unpackaged food, and fruit and vegetables in transparent packaging have been removed. The only requirements for such font is that it must be legible, prominent, distinctive and in English.

The Information Standard now requires that any Country of Origin signage displayed in association with such food must be in close proximity to the food. The Information Standard becomes mandatory for all products on 1 July 2018.

FoodLegal advises on all aspects of the Country of Origin system or can provide CoOL assessments:

7.    Court finds Aldi “natural” claims to be misleading or deceptive

In a judgement dated 31 August 2017, the Australian Federal Court held that Aldi’s use of the word “naturals” for its Moroccan Oil hair product range was misleading or deceptive in breach of the Australian Consumer Law.

Moroccanoil also claimed that the Aldi product infringed its trade mark. The Court dismissed this claim, finding that the two products were not sufficiently similar. This aspect of the decision and the potential impacts for home brand products that look similar to private label products is discussed further in this September 2017 edition of FoodLegal Bulletin.

8.    Ad Standards dismisses complaint against Ferrero Rocher

On 9 August 2017 the Advertising Standards Board (ASB) dismissed complaints against a television commercial by Ferrero Rocher, which claimed that the advertisement breached the Code for Advertising and Marketing Communications to Children.

The advertisement was for children’s’ Kinder Surprise products, and featured a sequence of parents being surprised by their children. The end of the advertisement featured toys from a children’s movie. The complaint claimed that the advertisement was in breach because it was not for a healthy product and was directed to children under 12 years of age.

The ASB determined that the advertisement was directed at a broad audience and was not primarily aimed at children under 12. The ASB considered that the reference to the children’s movie was fleeting and only an add-on to the main advertisement, that animated components of the advertisement were not its primary focus, and that the advertisement was not broadcast in programmes that were directed primarily to children under 12.

9.    NSW Supreme Court finds in favour of Woolworths in lease dispute

In a judgment dated 24 August 2017 the NSW Supreme Court held that Woolworths had the right to refuse the transfer of a lease to one of its competitors.

The case concerned a lease for retail premises adjacent to the Kiaora Lane Woolworths store. The tenant, About Life, sought to transfer the lease to Harris Farm Markets, a fresh food chain. Woolworths developed the Kiaora Lane precinct in a joint venture with Woolahra Council and initially leased the space to About Life.

The Supreme Court found that, under the lease agreement, Woolworths had a right of refusal regarding any transfer of the lease. The Supreme Court upheld this right, preventing the acquisition of the lease by Harris Farm Markets.

10.  APVMA fines herbicide company over contamination

In August 2017, the Australian Pesticides and Veterinary Medicines Authority (APVMA) issued chemical manufacturer Accensi with four infringement notices of $25,000 each.

The APVMA issued the infringement notices for a contamination in the herbicide supplied by Accensi, which caused crops to become stunted. APVMA Chief Executive Chris Parker said “Crop protection is a multi-billion dollar industry and Australia and farmers rely on agvet chemical manufacturers and registrants to supply registered products that are safe and will work as directed”.

11.  Ad Standards dismisses “unhealthy milk” complaints against Lion Dairy & Drinks

In a decision dated 9 August 2017 the ASB determined that a social media advertisement by Lion Diary & Drinks did not overstate the health benefits of cow’s milk.

The advertisement appeared on the Coles Facebook page and stated, “Did you know that 9 out of 10 Aussies don’t get enough dairy from their diets? Grab a litre or two of Pura milk from Coles today, because with 8 essential nutrients, #milklovesyouback. Multiple complaints alleged that the advertisement was misleading because cow’s milk is not of benefit to human health and the advertisement did not cite any sources confirming that milk is healthy.

The ASB reviewed the complaints against the AANA Food and Beverages Advertising and Marketing Communications Code (the Advertising Code) and noted that the advertisement did not make any specific claim that cow’s milk is beneficial for human health and noted that all the claims made in the advertisement were able to be substantiated. Therefore it did not determine the advertisement to be in breach of the Advertising Code or to be misleading.  

12.  Kellogg’s takes legal action over “Special K” trade mark

Kellogg’s has initiated proceedings in the Federal Court of Australia to prevent an Australian tennis player from using the nickname “Special K”.

The “Special K” trade mark is registered for use in Australia by Kellogg’s. Kellogg’s has brought action to prevent tennis player Thanasi Kokkinakis from using the nickname “Special K” commercially. The case was partially heard in June 2017 before the parties undertook a mediation conference. The case resumed in court on 31 August 2017.

International food regulatory issues

New Zealand

13.  MPI identifies three new properties infected with cattle disease

The New Zealand Ministry for Primary Industries (MPI) announced on 29 August 2017 that its tracing and testing program had identified three new properties that are positive for the bacterial cattle disease Mycoplasma bovis.

All three properties are dairy farms that have experienced animal movement to and from other infected locations. Mycoplasma bovis causes illnesses in cattle, but according to the MPI does not present health effects for humans and does not affect food safety. The affected properties are subject to controls that limit the movement of stock and equipment off those farms.

United States

14.  Court upholds law requiring seafood traceability

The US District Court for the District of Columbia (Washington D.C.) has upheld a law requiring seafood to be traceable, in a judgment dated 28 August 2017.

The law requires seafood importers of particular species to track the species and origin of the fish. Court action was brought by seafood companies to challenge the validity of the law, but the Court determined that the benefits of seafood traceability, including a reduction in illegal and unregulated fishing, outweighed the potential burden for industry.

The traceability law is due to come into force on 1 January 2018.

15.  FDA recognises qualified health claim linking early peanut introduction with reduced risk of peanut allergy

The FDA announced on 7 September 2017 that it intends to permit use of a qualified health claim for infants with severe eczema and/or egg allergy characterizing the relationship between the consumption of foods containing ground peanuts beginning between 4 and 10 months of age and a reduced risk of developing peanut allergy by 5 years of age.

Food companies in the US may start making this claim immediately.

16.  FDA issues new guidance on Food Safety Modernization Act exemptions

On 7 August 2017 the FDA issued three sets of guidance to explain specific exemptions from the Food Safety Modernization Act (FSMA)

The three sets of guidance apply to producers of low-acid canned foods, juice Hazard Analysis Critical Control Point (HACCP) and seafood HACCP. Regulations relating to these areas were introduced prior to the FSMA, and therefore affected companies face some exemptions from the FSMA.

The FSMA was introduced in 2011 to centralise food safety laws in the US.

17.  FDA allows ultrafiltered milk in particular cheese products

The FDA announced on 11 August 2017 that it will exercise its enforcement discretion to allow the use and labelling of fluid ultrafiltered milk and fluid ultrafiltered nonfat milk in particular cheeses.

Ultrafiltered milk undergoes a process that concentrates large compounds such as proteins and removes smaller compounds such as lactose. According to the FDA, the reason for this discretion is to mitigate global pressures that have resulted in an oversupply of domestically-produced ultrafiltered milk in the US.

Manufacturers of cheese products that contain ultrafiltered milk are encouraged to identify the presence of ultrafiltered milk, however the FDA does not intend to take action against companies that simply list the presence of milk.

European Union

18.  European Commission seeks comments on draft BPA regulation

On 29 August 2017 the European Commission issued a call for comments on draft regulation to limit the migration of bisphenol A (BPA).

The new regulation would establish a specific migration limit of 0.05 milligrams per kilogram of food, and would apply to varnishes or coatings applied to food contact materials. Such materials are not permitted to contain any BPA in levels above this. BPA is currently heavily regulated for use in food contact materials.

Submissions close on 20 September 2017.

19.  EFSA sets dietary reference values for riboflavin (vitamin B2)

On 7 August 2017 the European Food Safety Authority (EFSA) updated the dietary reference values for riboflavin (vitamin B2).

The new daily population reference intakes are:

               0.6 mg for children aged 1-3 years;

               0.7 mg for children aged 4-6;

               mg for children aged 7-10;

               1.4 mg for children aged 11-14;

               1.6 mg for adolescents aged 15-17 as well as for adults;

               1.9 mg for pregnant women;

               2 mg for lactating women.

An adequate intake of 0.4 mg per day was set for children aged 7-11 months.

United Kingdom

20.  Two men imprisoned for selling horse meat as beef

In late July 2017 the London Crown Court sentenced two men to imprisonment for their role in a conspiracy to sell horse meat as beef.

The men received four years six months and three years six months respectively. They were convicted of conspiring to sell 30 tonnes of horse meat as beef. Most of this amount was found to have entered the food chain. The Court held that the penalty was based in part on the significant detrimental impact the activity had on public confidence in the food chain.

21.  Local Governments seek to require all restaurants to display hygiene scores

On 9 September 2017, the Local Government Association indicated that it seeks to require all restaurant and takeaway premises in England to display food hygiene scores.

Similar requirements are already in place in Scotland, Wales and Northern Ireland, and are being considered by the UK Food Standards Agency as a method of ensuring food quality after Brexit. The score ranges between zero and five, and is impacted by factors including food management, cleanliness and food handling procedures.


22.  China notifies WTO of changes to food safety laws

In August 2017, the Chinese government notified the World Trade Organisation (WTO) of a revised draft of changes to its food safety laws.

The revised laws are set to bring about the following changes:

·         There will be reduced import restrictions for food products that do not fall under a Chinese food safety standard. Previously, any food product that did not fall under a Chinese standard could not be imported at all.

·         Infant formula products will have to provide greater information on their raw materials on their label, and will not be able to make functional claims.

·         If a major food safety incident occurs in an overseas food manufacturing facility that is registered under the Chinese regulations, registration will be immediately revoked.

·         Where a food safety incident occurs outside China, but may have an impact within China, regulators will have powers to return or destroy goods, suspend or prohibit import, and issue warnings.

Comments are sought on the WTO notification by 13 October 2017.


23.  Thailand bans infant formula advertisements

On 9 September 2017 a new law came into effect in Thailand to ban advertisements for infant formula products. The ban was imposed amid concerns surrounding the low breastfeeding rate in Thailand, which is approximately 12.3 percent. The ban also applies to other trade promotions, including the provision of samples, gifts or coupons to consumers by infant formula producers.