Current developments in food law and policy in Australia and elsewhere
Food Standards Australia New Zealand (FSANZ) news:
- FSANZ calls for submissions for Application A1127 – Processing aids in wine
On 26 April 2017 FSANZ issued a call for submissions regarding Application A1127 by the Winemakers’ Federation of Australia to seek permission for the use of silver chloride, ammonium bisulphate, chitin-glucan and PVI/PVP as processing aids for wine.
FSANZ CEO Mark Booth said “These processing aids are used for various processes including as fining agents and to reduce odours that occur during storage. FSANZ concluded there were no public health and safety concerns relating to the use of the processing aids in wine”.
Submissions are due by 7 June 2017.
- FSANZ rejects Potential Application PA1145 to permit the use of a substance as an intense sweetener
FSANZ rejected Potential Application PA1145 to permit the use of a substance as an intense sweetener in various foods on 13 April 2017.
The Application was rejected as it did not conform with the mandatory information and format requirements of the FSANZ Application Handbook. This included a failure to present studies to assess a non-permitted enzyme; a failure to provide primary toxicology studies; and a failure to provide English translations of certain documents.
- FSANZ calls for submissions for Proposal P1045 – Code Revision (2017)
On 18 April 2017 FSANZ announced a call for submissions for Proposal P1045 to make minor amendments to the Australia New Zealand Food Standards Code, including the correction of typographical errors, inconsistencies and formatting issues.
Submissions are due by 16 May 2017.
- FSANZ publishes Amendment number 168
FSANZ published Amendment number 168 to the Australia New Zealand Food Standards Code on 13 April 2017.
The amendment incorporates changes arising from the following Application and Proposal:
- Application A1132 to broaden the definition of steviol glycosides for use as an intense sweetener to include all steviol glycosides present in the stevia rebaudiana leaf
- Proposal P1043 to make minor revisions to correct typographical errors, inconsistencies and formatting issues
- FSANZ releases report on perfluorinated chemicals in food
On 3 April 2016 FSANZ released its report on perfluorinated chemicals in food.
The report recommends tolerable daily intake values for people potentially exposed to perfluoroalkyated substances. Such substances have been used in some firefighting foams and household items, and have been linked to environmental concerns. FSANZ was engaged by the Australian Federal Department of Health to develop final health-based guidance values.
The total daily intake values reflect the recommended amounts of perfluorinated chemicals that can be safely consumed daily over a lifetime. The recommended amount was 20 nanograms per kilogram of bodyweight per day for perfluorooctane sulfonate and 160 nanograms per kilogram of bodyweight per day for perfluorooctanoic acid.
Australian Competition and Consumer Commission (ACCC) news:
The Australian Competition and Consumer Commission (ACCC) is the Federal Government regulatory agency that maintains fair trade and competition and consumer protection in the Australian marketplace.
- Domino’s pays penalty for breaching Franchising Code of Conduct
On 8 May 2017 Domino’s Pizza Enterprises Ltd (Domino’s) paid an $18,000 penalty in response to an ACCC allegation of non-compliance with the Franchising Code of Conduct.
The penalty was paid following the receipt of two infringement notices issued by the ACCC, which claimed that Domino’s had failed to provide franchisees with an annual marketing fund financial statement and auditor’s report in compliance with the Code. This represents the first instance that a company has paid a penalty for an alleged breach of the Franchising Code of Conduct.
- ACCC launches Federal Court action against Murray Goulburn
The ACCC announced on 28 April 2017 that it had commenced proceedings in the Australian Federal Court against Murray Goulburn.
The ACCC alleges that representations by Murray Goulburn to Southern Milk Region dairy farmers between June 2015 and April 2016 about the average farmgate milk price it expected to pay in the 2015/16 financial year amounted to unconscionable conduct and was false or misleading in breach of the Australian Consumer Law. It is claimed that farmers made adverse business decisions in reliance on these representations and were unable to practically readjust their expenditure when Murray Goulburn reduced their farmgate milk price towards the end of the season.
It is further alleged that Murray Goulburn’s former managing director Gary Helou and former chief financial officer Bradley Hingle were knowingly concerned in breaches by Murrray Goulburn. Remedies are sought against Murray Goulburn, Helou and Hingle.
- E-cigarette companies ordered to pay penalties for Australian Consumer Law breaches
On 8 May 2017 the ACCC announced that the Australian Federal Court had ordered three e-cigarette companies to pay pecuniary penalties for making false or misleading claims about the presence of carcinogens in e-cigarettes.
The Federal Court found that The Joystick Company Pty Ltd, Social-Lites Pty Ltd and Elusion Australia Limited breached the Australian Consumer Law by representing that their e-cigarettes did not contain harmful carcinogens and toxins, where this was not the case. It was also found that officers of each company were liable as persons knowingly concerned in the conduct of their respective company.
Each company received the following penalty:
- The Joystick Company Pty Ltd received a pecuniary penalty of $50,000, and its director received a penalty of $10,000;
- Social-Lites Pty Ltd received a pecuniary penalty of $50,000, and its CEO received a penalty of $10,000;
- Elusion Australia Limited received a pecuniary penalty of $40,000, and its director received a penalty of $15,000.
- ACCC urges businesses to review Country of Origin claims
On 4 May 2017 the ACCC warned food businesses to ensure that their Country of Origin claims were consistent with the Australian Consumer Law and the new Country of Origin Labelling laws due to become mandatory from 1 July 2018.
In particular, businesses were urged to review their product packaging to ensure it does not misleadingly convey that a food was “made in” a particular country where the food does not qualify to make a “made in” claim under the new laws. In order to make such a claim, imported ingredients must undergo a “fundamental change in nature, identity or essential character” in Australia.
- ACCC calls for stronger competition and consumer laws and penalties
ACCC Chairman Rod Sims flagged a need for Australia’s Competition and Consumer Act (which also contains the Australian Consumer Law) to contain stronger laws and tougher penalties on 6 May 2017.
Sims referenced consumer concern regarding potential anti-competitive practices by large corporations, and stated that “businesses are at least as much focussed on reducing competition as they are on ‘satisfying the needs of consumers’”.
Sims proposed that the Australian Consumer Law should be changed to accommodate likely recommendations from a recent review. It was proposed that this would include much higher maximum penalties to deter anti-competitive behaviour.
- ACCC approves collective bargaining by cane growers
On 13 April 2017 the ACCC announced that it authorised members of the Canegrowers Organisation to engage in collective bargaining with mill owners and sugar marketers regarding supply and related contracts.
The Canegrowers Organisation represents the interests of sugar cane farmers in Queensland. The ACCC stated that it believed the collective bargaining arrangements would facilitate grower choice in supplying cane to produce sugar in which the growers have an interest (grower economic interest sugar).
The ACCC stated that it believes the arrangements are unlikely to result in significant public detriment since confidential information can still be preserved, and negotiations will continue to reflect differences among particular growing regions.
Other Australian food regulatory issues
- Food Forum holds first meeting for 2017
The Australia New Zealand Ministerial Forum on Food Regulation (Food Forum) held its first meeting for the year on 28 April 2017.
The Food Forum is responsible for providing policy guidance for Australia and New Zealand’s food regulatory systems. The meeting resulted in the following outcomes:
- Acceptance of low-THC hemp seeds as food. The Food Forum was presented with evidence that it is highly unlikely that acceptance of low-THC hemp seeds as food would have any effect on roadside drug tests. The draft FSANZ standard was therefore accepted and will take effect six months after it is gazetted
- Review of mandatory fortification of bread. The Food Forum noted a review of the mandatory fortification of bread which has found that the policy has reduced the instance of Neural Tube Defects in Australia and has led to iodine sufficiency in Australia and New Zealand
- Sugar labelling awaiting further review. The Food Forum agreed to let FSANZ gather further evidence of international approaches to, and consumer perceptions of, sugar labelling on food products. It is expected that this will be presented to facilitate a discussion on labelling approaches to providing information on sugars at the next meeting in November 2017
- Fats and oil labelling awaiting further review. The Food Forum agreed to expand the scope of the review being undertaken by the Food Regulation Standing Committee in relation to naming individual fats and oils on food labels. The review will now address all parts of the food label, and will consider both regulatory and non-regulatory options. A progress review is expected at the next meeting in November 2017
- Two–year progress review of Health Star Rating (HSR) system. The Food Forum endorsed the two-year progress review of the HSR system which noted that over 9,200 products bear HSR labels across Australia and New Zealand. The five-year review will continue and issues with the HSR system raised by stakeholders have been referred to the HSR Advisory Committee as a priority
- Food regulation priorities for 2017-2021. The Food Forum agreed that the priority regulatory areas in the next five years would be to reduce foodborne illnesses, to support public health objectives, and to maintain a strong, robust and agile food regulation system.
The next Food Forum meeting is expected to be held on 24 November 2017 in Melbourne.
- Red Bull in breach for suggesting energy drinks combat driver fatigue
The Advertising Standards Board (ASB) Australian Association of National Advertisers Code of Ethics held on 26 April 2017 that an advertisement by Red Bull Australia Pty Ltd breached the Australian Association of National Advertisers Code of Ethics.
The advertisement depicts a man in a car. The man’s GPS system yawns and explains that it was unable to stop for a Red Bull so is tired after seven hours of driving. The ASB held that there was a strong suggestion in the advertisement that the man had been driving for seven hours and that the consumption of an energy drink was sufficient to overcome driver fatigue. This was determined to be an unsafe message that was contrary to prevailing community standards.
Red Bull has confirmed that the advertisement will not be run again.
- Bulla Dairy fined for spilling cream into stormwater drain
The Victorian Environment Protection Authority (EPA) announced on 4 May 2017 that Regal Cream Products Pty Ltd (trading as Bulla Dairy Foods) had been fined $7,773 for allowing approximately 200 litres of cream to enter the stormwater system.
Bulla Dairy advised the EPA of the incident on 24 February 2017. The incident resulted in approximately 30,000 litres of contaminated material which stopped 10 metres short of Lake Colac. The contaminated water was removed before it could enter the lake. The contamination arose when the cream travelled through a connection between the stormwater system and a waste system belonging to Bulla Dairy.
- Federal Government announces visa changes
On 19 April 2017 the Australian Federal Government announced it intends to introduce changes to its to its visa program.
The changes will abolish the four-year 457 visa for skilled foreign workers and introduce two new visas: a general two-year visa; and a four-year visa applicable to workers with specialised skills. The new visas will reportedly not have options for permanent residency upon their expiration, and will only be available for a reduced number of occupations.
Several food industries employ a significant number of workers on 457 visas. Of the 95,000 workers on 457 visas, the meat industry reportedly employs approximately 20 percent. Industries are concerned that they will face increased costs if the changes decrease the available pool of potential workers and increase the complexity of the application process.
- Sugar Code of Conduct comes into effect
The mandatory Sugar Code of Conduct came into effect on 5 April 2017.
The Code applies to mill owners, growers and marketers of grower economic interest sugar. It regulates the negotiation of cane sugar supply and raw sugar on-supply agreements, and provides for compulsory arbitration to settle disputes in some circumstances. Grower economic interest sugar refers to sugar in which growers have an interest due to the cane they supply.
Supply contracts between growers and mill owners must also allow the grower to choose the marketing entity used in relation to the sugar produced from the cane supplied by the grower.
- Call for submissions on imported food safety review
It was announced in March 2017 that Australian Federal Department of Agriculture and Water Resources will undertake a review of Australia’s imported food safety regulation.
It is anticipated that changes will impose tougher requirements on importers to ensure that the food they source is safe. The Department of Agriculture will also have greater inspection and response powers.
Public consultation on the proposed changes is currently open and closes on 4 May 2017.
- South Australia proposes using recycled water for agricultural expansion
The South Australian Government announced on 12 April 2017 that it intends to use recycled water to expand its agricultural food production.
It is proposed that an additional 12 gigalitres of recycled water will be made available, which represents an increase of 60 percent. The scheme is contingent on the receipt of Federal Government fundting.
- Cosmetic surgery ad banned for negative impression
On 12 April 2017 the Advertising Standards Board (ASB) upheld a complaint against an advertisement for cosmetic surgery that compared women’s breasts with cow udders.
The advertisement appeared in a newspaper and featured a picture of a cow’s udder with the text “Look familiar? Ladies, it’s time to reclaim your breasts”. The ASB found that the advertisement breached Section 2 of the Australian Association of National Advertisers Code of Ethics by depicting material in a way that discriminates against or vilifies a person on account of sex.
It was found that “the image of a cow used to promote a service of breast augmentation, which is relevant only to women is a negative description,” and that the advertisement created a negative relationship between women and cows. The advertiser has withdrawn the advertisement.
International food regulatory issues
- New Zealand proposes scientific definition for manuka honey to combat food fraud
The New Zealand Ministry for Primary Industries (MPI) on 11 April 2017 released a scientific definition for manuka honey.
The proposed definition uses four chemicals and one DNA marker which are unique to manuka honey. It will be used to prevent food fraud through testing honey which claims to be manuka honey. Manuka honey is derived from manuka trees in New Zealand and commands a price premium.
Public comments are sought on the proposed definition by 23 May 2017. The MPI expects to bring the new definition into effect during July 2017.
- Food outlet operator fined for possessing black market paua
The MPI announced on 2 May 2017 that a company that operates two New Zealand food outlets had been fined NZD $30,000 for possessing black market paua.
It was alleged that the conduct formed part of a black market ring that resulted in over NZD $20,000 of illegal sales over 13 months. Some of the paua was harvested during a time when there was a health warning in place due to the presence of paralytic shellfish toxins that could make affected paua unsafe for human consumption.
The sole director of the company was convicted separately and sentenced to 10 months’ home detention and 200 hours’ community work. Other individuals involved in the scheme have also been charged and sentenced.
- Tourist sent home for smuggling suitcase full of fruit
On 18 April 2017 the MPI announced that an American visitor had been refused entry to New Zealand after attempting to smuggle fruit into the country.
The passenger failed to declare a suitcase packed with fruit and vegetables and was required to fly out of New Zealand on the next available flight. New Zealand biosecurity officers were concerned that the contents of the suitcase could host a number of insects that could damage the country’s horticulture industry.
- Australia recognised as having comparable food safety system to US
The US Food and Drug Administration (FDA) announced on 19 April 2017 that it recognises Australia as having a comparable food safety system to that of the US.
Australia is the third country, after New Zealand and Canada, to have its food safety system recognised as comparable. Such recognition means that there will be greater acceptance of science-based regulatory systems between Australia and the US. This will be taken into account by the FDA in planning the scope and frequency of its inspection programs including import sampling and import field examinations.
- FDA revokes approval for use of perchlorate in sealing gaskets for food containers
On 3 May 2017 the US FDA announced that it had revoked approval for potassium perchlorate as a food additive for use in sealing gaskets for food containers.
The action was taken in response to a petition that provided that the use of perchlorate for this purpose had been abandoned by industry. Any manufacturer wishing to use potassium perchlorate is now required to submit a Food Contact Notification or a petition to the FDA.
- Menu labelling compliance date extended
On 1 May 2017 the FDA extended the compliance date for menu labelling requirements to 7 May 2018.
Under the menu labelling requirements, restaurant and retail food chains consisting of 20 or more stores must disclose particular nutrition information for standard menu items. The compliance date has been extended to allow further comments on approaches that could reduce costs and regulatory burdens. The requirements were previously due to come into force on 5 May 2017.
The comment period is open for 60 days.
- FDA announces exceptions to rule for sanitary transportation of food
On 5 April 2017 the FDA published three waivers to the application of the final Sanitary Transportation of Human and Animal Food rule.
The rule will not apply where:
- Businesses holding “Grade A” permits issued under the National Conference on Interstate Milk Shipments are transporting only “Grade A” milk products
- Food establishments are authorised by regulators to operate as receivers, shippers or carriers where food is delivered directly to consumers (e.g. restaurants, supermarkets)
- Businesses are transporting molluscan shellfish that are inspected and certified under the Interstate Shellfish Sanitation Conference Shellfish Sanitation Program
The rule came into effect in June 2016 and applies to keep food safe from contamination during transport.
- Connecticut considers imposing “soft drink tax”
Connecticut regulators are reportedly considering imposing a tax on sugary drinks to fund childhood health programs.
The proposed tax would apply to beverages containing high-calorie sweeteners including sugar, high-fructose corn syrup, honey and maple syrup. The beverages would attract a charge of once cent per ounce.
Other US cities, namely Philadelphia and Berkeley, have recently imposed taxes on sugary drinks.
- EU introduces regulation for the control of dioxins in foodstuffs
On 5 April 2017 the European Commission introduced regulation 2017/664.
The regulation sets out sampling and analytical methods for controlling levels of dioxins and polychlorinated biphenyls in food. It replaces a previous 2014 regulation dealing with the same subject matter.
- EFSA announces public consultation on draft guidance for safety assessment of feed additives
On 6 April 2017 the European Food Safety Authority (EFSA) announced it is seeking public comments on proposed guidance for safety assessment of animal feed products.
The guidance applies to assist applicants in the presentation and preparation of an application for authorisation of a feed additive for animals. Written comments are sought by 31 March 2017.
- FSA releases report on data science in food
On 5 April 2017 the UK Food Standards Agency (FSA) released its Science Report outlining how data science is used and interpreted in the UK food industry.
The report notes the increasing use of scientific measurement and data collection in the food industry and government, such as temperature-detection methods and ways to analyse hygiene practices. The report also considers the use of social media to communicate with and understand concerns of consumers and industry, and to alert the public to safety risks.
- China criminalises food fraud and adulteration
The Chinese Food and Drug Administration designated food fraud and food adulteration as criminal offences in a major work agenda issued in 14 April 2017.
The designation was reportedly made in response to several incidents involving the sale of food in China that had been adulterated or contained ingredients that were not consistent with the labelling. Criminalisation is the highest disincentive for conduct under China’s food safety regulatory system.
- CFDA introduces new requirements for complementary foods for infants and young children
On 11 April 2017 the Chinese Food and Drug Administration issued additional requirements for complementary foods for infants and young children.
The supplementary rules include changes to production licencing. Producers of food that is marketed as complementary food for infants and young children must apply to regulators to change their product category and obtain the relevant licence by 30 June 2018. Food produced after this date will not be able to be sold unless the correct licence is obtained.
Regulators will also conduct investigations into the labelling of complementary foods for infants and young children to ensure that product labels are not misleading and comply with relevant regulations.
- China finalises food safety tracing rule
The CFDA released the final version on its Food Safety Traceability rule on 1 April 2017.
The rule will apply to food manufacturers and traders throughout the food supply chain and will require companies to record food safety information. Records will have to be kept for six months for foods with a specific expiry date, and for two years for foods with no specific expiry date. A separate rule will be introduced for manufacturers and traders of special foods, homemade foods and unpackaged foods.
The new law is expected to be implemented by 2020.