Current Developments in food law and policy in Australia and elsewhere (March 2018)

FSANZ invites written submissions on draft variations to the Food Standards Code arising from Proposal P1044 (Wording of Allergen Labellings)

On 1 March 2018, FSANZ called for written submissions on the draft variation to the Food Standards Code arising from Proposal P1044 – Plain English Allergen Labelling. The proposal aims to standardise the use of plain English terminology for allergen declarations on food labels.

FSANZ CEO Mark Booth said “At the moment, some food allergens must be declared on food labels whenever they are present as an ingredient, food additive or processing aid. However, there are no requirements about how the declarations must be made. This is the first of two rounds of consultation on the proposal. It proposes possible changes to address the lack of clarity, including determining what terminology should be used.”

Written submissions are due by 12 April 2018.

FSANZ approves variations arising from Application A1136 (Protein Glutaminase)

On, 22 February 2018, FSANZ approved variations arising from the application A1136 – Protein Glutaminase as a Processing Aid (Enzyme), which is to permit the use of protein-glutaminase from Chryseobacterium proteolyticum, as a processing aid to remove the protein functionality in baking, noodle, dairy, meat, fish, and yeast products.

FSANZ publishes two amendments to the Food Standards Code

On 22 February 2018, the following amendments to the Australia New Zealand Food Standards Code (Food Standards Code) were published by FSANZ:

A1138 – Food derived from Provitamin A Rice Line GR2: was an application to seek approval for food derived from rice line GR2E, genetically modified to contain increased levels of provitamin A in the grain.

A1143 – Food derived from DHA Canola Line NS-B50027-4: was an application to seek approval for food derived from canola line NS-B50027-4, genetically modified to produce omega-3 long chain polyunsaturated fatty acids in the seed, in particular, DHA.

FSANZ initiates review of food derived using new breeding techniques

On 22 February 2018 FSANZ announced it was reviewing how the Food Standards Code applies to food derived using new breeding techniques.

These new techniques include the use of modern gene technology in plants and animals that are not directly dealt with under Standard 1.5.2 – Food produced using gene technology. FSANZ is seeking submissions on how food derived using these new technologies should be regulated for pre-market approval under Standard 1.5.2, and whether definitions in Standard 1.5.2 should be altered.

Submissions close on 12 April 2018.

FSANZ calls for submissions on Application A1153 – Endo xylanace from T. reesei as a processing aid

On 15 February 2017 FSANZ announced that it was seeking submissions from industry regarding Application A1153 by AB Enzymes GmbH to ermit the use of endo ß(1,4) xylanase from a genetically modified strain of Trichoderma reseei as a processing aid.

Submissions are due by 29 March 2018.

FSANZ approves new applications

FSANZ announced on 15 February 2018 that it had completed an administrative assessment and accepted the following Applications:

A1156 – Food derived from Super High Oleic Safflower Lines 26 and 40: To seek approval for food derived from SHO safflower lines 26 and 40, genetically modified to produce high levels of oleic acid in the seed.

A1157 – Enzymatic production of Rebaudioside M: To seek approval for a new specification for rebaudioside M produced by an enzymatic biosynthesis method.

A1158 – Rosemary extract as a food additive: To permit the use of rosemary extract as a food additive (antioxidant).

A1159 – Triacylglycerol lipase from Trichoderma reesai as processing aid (enzyme): To permit the enzyme lipase, triacylglycerol from Trichoderma reesei as a processing aid for the production of bakery products and cereal-based beverages

A1160 – Aspergillopepsin I from Trichoderma reesei as processing aid (enzyme): To permit the enzyme Aspergillopepsin I from Trichoderma reesai as a processing aid for the production of potable alcohol products and protein processing

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

Australian Competition and Consumer Commission (ACCC) News

ACCC takes Federal Court action against Woolworths for environmental claims

On 2 March 2018, the ACCC reported that it had initiated proceedings in the Australian Federal Court against Woolworths regarding allegedly ‘biodegradable and compostable’ plates, bowls, and cutlery in its ‘W select eco’ range.

The ACCC alleges that Woolworths has not made reasonable or adequate efforts to substantiate the biodegradability and compostability claims; that customers have been wrongly paying a premium for these products as they thought the claims were substantiated; and that Woolworths has acted contrary to its own Environmental Claims Policy, which states that claims must be ‘accurate, specific, and clear; apply to a real environmental benefit; not overstate a benefit and be articulated in plain language’.

ACCC Commissioner Sarah Court said “Businesses making environmental claims about their products must take reasonable steps to ensure the benefits are achievable for ordinary Australian consumers”.

ACCC raises concerns regarding Saputo-Murray Goulburn acquisition the ACCC on 1 March 2018 raised competition concerns regarding the proposed acquisition of Murray Goulburn assets at Koroit in Victoria by Saputo.

ACCC Chairman Rod Sims said “Our view is that Saputo owning the Koroit plant would substantially lessen competition for the acquisition of dairy farmers’ raw milk in the region.” The ACCC states that the acquisition may cause Saputo and Fonterra, as the only major processers in the region, to drive down the price paid to fairy farmers for milk.

The ACCC has detailed its concerns in a Statement of Issues. Submissions from interested parties are sought by 13 March 2018.

Other Australian food regulatory issues

Rockmelons recalled after listeria outbreak

Throughout late February 2018 a number of Lysteria cases were identified throughout New South Wales, Victoria and Queensland.

The cases were linked to whole rockmelons consumed between 17 January 2018 – 9 February 2018. FSANZ announced on 28 February 2018 that it was coordinating a trade recall of whole rockmelons and advised consumers to discard any rockmelons that they had already purchased.

Ministerial Food Forum seeks submissions for fast food labelling

On 6 February 2018 the Australia and New Zealand Ministerial Forum on Food Regulation (Food Forum) announced the beginning of consultations regarding a review of menu labelling schemes in Australia.

An article in this edition of FoodLegal Bulletin considers this review in detail.

The consultation period will close on 16 March 2018.

Ad Standards dismisses child nudity complaint against McDonald’s

On 7 February 2018, the Ad Standards Community Panel handed down their determination of a complaint regarding child nudity in two ‘Go Full Summer’ McDonald’s food and drink TV advertisements.

The first advertisement switches between scenes of a group of children and their grandparents having fun at the beach, pools, bush trails, and in a house. The second advertisement features two children eating McDonald’s at home with their grandfather. The complaint alleged child nudity in the advertisements and that it breached section 2 of the AANA Code of Ethics.

The Ad Standards Community Panel dismissed the complaint, finding that the advertisements did not depict nudity or suggest any inappropriate behaviour towards children.

Complaint filed to the Ad Standards Community Panel against Yum Restaurants International with respect to a TV advertisement

On 7 February 2018, the Ad Standards Community Panel handed down their determination of a complaint regarding general nudity and sexuality in a KFC food and drink TV advertisement.

The advertisement depicts a mother and father in a classroom with a school teacher holding a drawing by their child which depicts two stick figures titled ‘Mum and Dad naked wrestling’, to which the mother replies: ‘did anyone say KFC?’ and images of the advertised product follow.

The Ad Standards Community Panel dismissed the complaint, finding that the picture was a childlike drawing that is hard to make out as people, and that small children would not draw a suggestion of sexual activity from the image.

The Therapeutic Goods Administration has given safety warnings for two slimming products containing an undeclared substance: sibutramine

On 6 and 28 February 2018, the Therapeutic Goods Administration issued safety warnings for two slimming products, ‘Perfect Slim’ capsules, and ‘Help 100% Pure Natural & Body Slim’ capsules, as they both contain an undeclared substance: sibutramine. Sibutramine is a prescription only medicine in Australia. Neither product has been assessed by the TGA for its quality, safety, or efficacy as required under Australian legislation, and the place of manufacture has not been approved by the TGA.

The Therapeutic Goods Administration announces the release of the Poisons Standard March 2018

On 1 March 2018, the Therapeutic Goods Administration announced the release of the most recent version of the Poison Standards 2018. The March edition commenced on 1 March 2018, replacing the Poisons Standard February 2018. The March Standard includes the following new substances following advice from the Australian Committee on Chemicals Scheduling (ACCS):

3-nitro-p-hydroxyethylaminophenol, hydroxyethyl-3,4-methylenedioxyaniline;

1,3-bis(2,4-diaminophenoxy)propane;

2,2'-[(4-amino-3-nitrophenyl)imino]bisethanol;

HC Violet 1;

1-deoxy-1-(methylamino)-d-glucitol N-coco acyl derivatives;

o-toluidine; and

o-anisidine.

International food regulatory issues

New Zealand

Scotch whisky receives geographical protection in New Zealand

On 26 February 2018 the New Zealand Intellectual Property Office registered “Scotch Whisky” as a protected geographical indication.

Registration means that products must come from a particular geographic region and meet certain criteria in order to be labelled as “Scotch Whisky”. In particular, such products must be produced in Scotland from the raw materials of water, cereals and yeast. They must be matured in Scotland in oak casks for at least three years.

The Scotch Whisky registration is the first geographical indication from outside New Zealand to be registered in New Zealand.

United States

FDA releases several guidance documents related to the Nutrition and Supplement Facts Label Final Rule

On 1 March 2018, the Food and Drug Administration released several guidance documents that relate to the Nutrition and Supplement Facts Label Final Rule (NSFLFR). The NSFLFR was published on 27 May 2016. It established a definition for the term ‘dietary fiber’, to ensure that only fibre that has a beneficial physiological effect on human health can be claimed as ‘dietary fiber’ on the food label. Some of these include naturally occurring fibres like those in fruit, vegetables, and whole grains. The guidance documents are intended to help petitioners understand the level and type of evidence required to demonstrate that a ‘non-digestible carbohydrate’ (dietary fibre) has a physiological effect that is beneficial to human health.

FDA recognises the first accreditation body under the voluntary Accredited Third Party Certification Program

On 31 January 2018, the Food and Drug Administration announced that it had recognised the first accreditation body under the voluntary Accredited third Party Certficaiton Program, a program created by the FDA’s Food Safety Modernisation Act (FSMA), with the intention of strengthening the oversight of food imports into the United States. The accreditation bodies recognised by the FDA under the Act will have the authority to accredit third-party auditors, which, once accredited, can conduct food safety audits and issue certifications of foreign food facilities, including both human and animal foods.

European Union

The EFSA’s Pesticides Unit confirms risks to wild bees from Neonicotinoid pesticides

On 28 February 2018, the European Food Safety Authority (EFSA) reported that the risks to wild bees and honeybees by three Neonicotinoid pesticides have been confirmed according to assessments published the same day. The three Neonicotinoids: clothianidin, imidaclroprid, and thiamethoxam have been confirmed to pose risks to bees via residues in pollen and nectar, dust drift during sowing/application of treated seeds, and water consumption. The EFSA’s conclusions will be shared with risk managers from the European Commission and Member States, who will consider the possible amendments to the current pesticide restrictions in light of these confirmations.

EFSA releases administrative guidance for applicants writing applications for novel foods

On 16 February 2018, the European Food Safety Authority released new publicly accessible guidance for applicants who want to prepare applications for novel foods. The guidance includes a checklist of the data requirements for the food, and four tables where applicants should include the scientific studies that form the basis of their technical dossier.

EFSA’s Advisory Forum calls for more public investment in food safety research

On 6 February 2018, EFSA reported that the national food safety authorities from all 28 EU Member States, plus Iceland and Norway, have agreed there needs to be more public investment in food safety research, and have given commitments to support European food safety research.