Food Law Update

Blake Dawson is
Ashurst, Australias
new global law firm

June 2012

Whats next for Australian food

labelling law? The Government
responds to the Blewett Report
In brief
The Commonwealth and State and Territory governments have
responded to the Blewett Report, agreeing with many of the Reports
recommendations and focusing on nutritional and health related issues
regarding food labelling.

Contents
Whats next for Australian food
labelling law? The Government
responds to the Blewett Report

Is the new health claims standard

finally going to come into force? 4
Country of origin labelling
extended to unpackaged
meat products

Proposed new regulatory

regime for nutritive substances
and novel food

ACCC closes the gate on

free to roam

The FoFR has expressed its intention to work with industry, public health
and consumer groups and there is likely to be further consultation
regarding the Reports recommendations.

ACCC successfully protects

regional producers in King Island
origin claim
10

Alcohol producers should be prepared to adopt the currently voluntary

warnings regarding drinking alcohol while pregnant, if they have not
already done so.

No truth in labelling for palm oil 11

It is likely that a proposal for a front-of-pack labelling system will be

presented to the FoFR for review by the end of this year.

On 9 December 2011, the Legislative and Governance Forum on Food

Regulation (convening as the Australia and New Zealand Food Regulation
Ministerial Council) (FoFR) agreed its response to the Blewett Report on food
labelling in Australia (Report). The FoFR supported the majority of the Reports
recommendations, noting that many are already being addressed. Of particular
interest are the FoFRs proposed actions regarding the labelling of nutritional
information, alcohol and allergens and the development of a standard front
-of-pack labelling system.

Fast food labelling laws

introduced in ACT

13

Will the Food Standards Amendment

(Truth in Labelling Genetically
Modified Material) Bill 2010 (Cth)
progress any further?
14

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Background to the Blewett Report

As was reported in our 8 July 2011 edition, on 23 October
2009, the Australia and New Zealand Food Regulation
Ministerial Council (as it then was) announced an
independent inquiry into food labelling to be led by
former Australian Health Minister, Dr Neal Blewett AC.
After two rounds of extensive public consultation, on
28 January 2011 the Panel delivered its Final Report,
Labelling Logic Review of Food Labelling Law and Policy
2011, which became known as the Blewett Report.
The Report made 61 recommendations across the
following categories:
policy drivers behind food labelling
principles and criteria to guide government
decision making on regulatory intervention
public health and safety
new technologies
consumer value issues
presentation
compliance and enforcement.

Page 2

Food Law Update June 2012

How the Commonwealth Government

responded
In a statement to the media on 30 November 2011, Minister
for Health and Ageing, Nicola Roxon and Parliamentary
Secretary for Health and Ageing, Catherine King MP
summarised the Commonwealth Governments position
in relation to the Report, outlining four proposals:
to work with the food industry and public health groups
in order to develop a single front-of-pack labelling model
to assist shoppers in deciding which food to buy;
to improve standards for nutritional and health food
claims on food labels, such as low fat and high in
fibre in order to reflect public health goals and give
consumers meaningful information;
to improve the back-of-pack labelling to provide
consumers with better information about sugars,
fats and vegetable oils; and
to make the currently voluntary pregnancy warning
labels on alcohol mandatory within two years.

How the FoFR responded

The Commonwealth presented its position to
representatives from the States and Territories and
New Zealand at the FoFRs December meeting and,
on 9 December 2011, the FoFR agreed its Response to
the Blewett Report. The FoFR supported the majority
of the Reports recommendations, leaving some to
be addressed at a later date and recognising that a
number were already being addressed through various
initiatives. Some of the notable proposals were:
Meaning of public health The FoFR supported
in principle amending the Food Standards Australia
New Zealand Act 1991 to include a definition that
public health means the organised response by
society to protect and promote health, and to prevent
illness, injury and disability. The FoFR proposed
the development of a Ministerial Guideline to make
clear the role of Food Standards Australia New
Zealand (FSANZ) in developing and reviewing food
standards and supporting public health objectives.
Comprehensive national nutrition policy The FoFR
also supported the development of a comprehensive
national nutrition policy, which has been referred
to the Australian Health Ministers Advisory Council
(AHMAC) and to which FSANZ will be able to refer
when developing and reviewing labelling standards.
Ingredient list and nutrition information panel In
response to several recommendations regarding the
listing of certain ingredients such as added fats,
added sugars and natural fibre content, the FoFR will
request that FSANZ undertake a technical evaluation
and provide advice on the proposed changes to the
ingredient listing and Nutrition Information Panel
before considering amending the Food Standards Code.

Allergens The FoFR noted and commended the

industry based Voluntary Incidental Trace Allergen
Labelling (VITAL) system. In response to the Reports
recommendation that allergens be listed in bold and also
in a separate list, the FoFR requested that FSANZ provide
technical advice on benefits of introducing mandatory
requirements versus the cost for industry of doing so.
Front-of-pack labelling The FoFR noted that there was
considerable division on how front-of-pack labelling
should be presented, in particular, whether it should be
non-interpretive, leaving consumers to apply information
as they see fit, or interpretive, assisting consumers to
understand and apply information. The FoFR proposed
that the Food Regulation Standing Committee (FRSC)
work with AHMAC and consumer groups, public health
groups and the food industry to develop a front-of-pack
labelling system. The FRSC is to present a substantial
progress report on the development of the system in June
2012, with a view to having it settled by December 2012.
Any specific proposals for a labelling system, for example
a traffic light labelling system, have been put on hold
pending the outcome of the report.

Katherine Payne

Lawyer, Melbourne
katherine.payne@ashurst.com

Belinda Findlay
Partner, Melbourne
belinda.findlay@ashurst.com

Alcohol labelling The FoFR acknowledged the

voluntary, industry based regime for warnings about
the danger of drinking alcohol while pregnant and,
in consultation with the Standing Council on Health,
supported the industry being given two years to adopt
voluntary initiatives before regulating the issue.

Food Law Update June 2012

Page 3

Is the new health claims standard

finally going to come into force?

In brief
F ood Standards Australia New Zealand (FSANZ) has sought further submissions regarding draft Standard 1.2.7
Nutrition, Health and Related Claims for inclusion in the Australia New Zealand Food Standards Code (Code).
T
 he new standard will allow manufacturers to make voluntary claims about the nutrient content of foods
or the connection between food and health, where those claims can be supported by scientific evidence.
I n this round of submissions, the latest in an extensive process of public consultation, FSANZ particularly
sought comments on the overall structure and text of the draft standard and fat-free and % fat claims
and whether they are likely to mislead consumers.
Submissions are now closed and FSANZ is preparing its Review of the draft Standard for the Government.

The latest round of public consultation

in relation to draft Standard 1.2.7 - Nutrition,
Health and Related Claims closed on
30 March 2012. FSANZ was particularly
seeking comments on the overall text and
structure of the draft Standard in its current
form and on fat-free and % fat claims and
whether they were likely to mislead consumers.

Page 4

Food Law Update June 2012

Background

Further consultation

The possibility of introducing a draft standard covering

nutrition, health and related claims into the Code has
been under discussion for some time. In December 2003,
the Legislative and Governance Forum on Food Regulation
(then the Australia and New Zealand Food Regulation
Ministerial Council) (FoFR) presented FSANZ with the Policy
Guideline on Nutrition, Health and Related Claims. FSANZ
then prepared Proposal P293 Nutrition, Health & Related
Claims (P293), which in turn led to draft Standard 1.2.7
being approved in May 2008 for inclusion in the Code.

Following the approval of draft Standard 1.2.7 for inclusion

in the Code, the FoFR requested FSANZ to conduct a Review
of the draft Standard. Due to the independent Review of
Food Labelling Law and Policy (which culminated in the
Blewett Report and which recommended the finalisation
of Draft Standard 1.2.7), the timeframe for providing this
Review has been extended several times. In light of both
the Blewett Report and an interim Review report prepared
by FSANZ, the FoFR asked FSANZ to undertake further
consultation before finalising its Review and presenting its
response and the Standard to the Ministers. In particular,
the consultation was to concentrate on:

The purpose of draft Standard 1.2.7 is to allow

manufacturers to make voluntary claims regarding the
nutrient content of food or the relationship between food
and health, where those claims are based on scientific
evidence. Under the Code as it currently stands, certain
nutrition claims are regulated by Standard 1.2.8 and health
claims are regulated by transitional Standard 1.1A.2, which
prohibits almost all health claims. Related claims, such as
endorsements, are not currently covered by the Code.
In a statement to the media, FSANZ said that it believes
the draft standard will help ensure that the requirements
for food manufacturers are clear and that the claims they
make are scientifically justified and not misleading.
FSANZ acknowledges that the proposed standard has
generated considerable interest within the industry
and among consumers and the general public and has
produced diverse responses. FSANZ has undertaken
extensive public consultation and reports that, since
2004, there have been five rounds of public comment on
the draft standard and over 500 submissions received. In
its statement, FSANZ expressed the belief that the draft
standard strikes a balance between disparate views.

the proposed structure of draft Standard 1.2.7 and the

changes to the draft since the previous consultation in
March 2009; and
fat free and % fat claims and whether these are likely
to be misleading to consumers.
FSANZ sought submissions from 17 February 2012 to
30 March 2012. Some of the significant changes since the
March 2009 consultation which FSANZ highlighted and
sought comments on were:
the pre-approval of food-health relationships supporting
all health claims, both general and high level, (FSANZ
recommends the inclusion of 115 pre-approved foodhealth relationships and the possibility of adding
additional food-health relationships through FSANZ); and
the removal of proposed provisions for related claims
regarding dietary information and cause-related marketing.
FSANZ also wished to know whether stakeholders felt that
consumers are currently misled, or a likely to be misled in
the future, by fat free and % fat claims, and whether more
regulatory measures are required in relation to such claims.

Next steps
Submissions are now closed, and FSANZ is in the process
of preparing its Review response for the FoFR. Expect to
hear more about nutrition, health and related claims as
Standard 1.2.7 moves from draft to reality.

Katherine Payne

Lawyer, Melbourne
katherine.payne@ashurst.com

Annika Barrett

Senior Associate, Melbourne

annika.barrett@ashurst.com

Food Law Update June 2012

Page 5

Country of origin labelling extended

to unpackaged meat products
In brief
FSANZ has approved Proposal P1011 which makes specific changes to Standard 1.2.11 of
the Australia New Zealand Food Standards Code dealing with country of origin labelling.
The amendments require mandatory country of origin labelling to be extended to include
all unpackaged beef, chicken and pork meat for retail sale in Australia.
On 18th April 2012, Food Standards Australia New Zealand
(FSANZ) approved Proposal P1011 (Proposal) which alters
standard 1.2.11 of the Australia New Zealand Food Standards
Code (Code). The Proposal was released on 7 May 2010 and
suggested amendments which would require country of
origin labelling to appear on all unpackaged beef, chicken
and sheep meat for retail sale in Australia. The amendments
are only applicable to Australia as standard 1.2.11 does not
apply in New Zealand.
Currently in Australia there is an inconsistency in the
application of country of origin labelling on unpackaged
meat products, with it only being required on unpackaged
pork, fish, fruit and vegetables. These changes will remove
this inconsistency and extend the coverage of country of
origin labelling to include unpackaged beef, chicken and
sheep the meat that is most commonly consumed in
Australia. These amendments follow the recommendations
in the Blewett Report, that country of origin labelling be
extended to cover all primary food products for retail sale.

Page 6

Food Law Update June 2012

Food regulation Ministers were notified of the decision on

30 April 2012 and have until 23 July 2012 to seek a review. If
no review is sought, the amendments will be gazetted and
will come into effect six months after gazettal.

Melissa Ashdown

Graduate, Melbourne
melissa.ashdown@ashurst.com

Belinda Findlay
Partner, Melbourne
belinda.findlay@ashurst.com

Proposed new regulatory regime for

nutritive substances and novel foods
In brief
FSANZ is seeking comment on a proposal to remove the current definitions of nutritive substances
and novel foods and replace them with the concepts of eligible and non-eligible foods.
Under the proposal, eligible foods will be explicitly permitted under the Code and suppliers will only
be able to supply non-eligible foods with the approval of FSANZ.
On 26 March 2012, Food Standards Australia New
Zealand (FSANZ) released a consultation paper that
proposes removing the current ambiguous definitions
of nutritive substances and novel foods in the
Australia New Zealand Food Standards Code (Code) and
introducing a new regulatory regime that differentiates
between eligible and non-eligible foods based on
objective criteria. Under the proposed regime, all new
foods that are not eligible foods will be prohibited.
It is proposed that a new food that meets an objective
criterion, or is otherwise explicitly permitted in the Code,
will be eligible and may be supplied without pre-approval.
Suppliers will, however, be required to keep evidence that
establishes the new foods safety.
Certain new foods will be listed in the Code as non-eligible.
A supplier will only be able to supply non-eligible foods if
they make a successful application to FSANZ for approval.
The safety of a new food that is not eligible, and is not
listed as non-eligible, will be determined by an assessment
procedure (current pre-market requirements for food
additives, vitamins, minerals, processing aids, food produced
by genetic technology and irradiated foods will be retained).

If the new food is determined to be safe, FSANZ will release

a proposal to the public recommending that the Code be
amended to permit the new food. If the food is determined
to be unsafe, or its safety is unclear, it will remain prohibited
unless a supplier make a successful application for approval.
The deadline for submissions concerning the proposed
new regulatory regime was 21 May 2012. Based on the
submissions received, FSANZ will now decide whether to
prepare a formal proposal recommending the changes
suggested in the consultation paper.

Andrew Sutherland

Lawyer, Melbourne
andrew.sutherland@ashurst.com

Belinda Findlay
Partner, Melbourne
belinda.findlay@ashurst.com

Food Law Update June 2012

Page 7

ACCC closes the gate on

free to roam
Australian Competition and Consumer Commission v Turi Foods Pty Ltd
(No 2) [2012] FCA 19 (23 January 2012)
Australian Competition and Consumer Commission v Turi Foods Pty Ltd
(No 3 ) [2012] FCA 198 (9 March 2012)

In brief
The ACCC has prosecuted chicken producers on the
basis that cage free does not equal free to roam.
Producers should factor in the realities of the
environment for animals in describing the growing
conditions of their product.
Declarations of misleading and deceptive conduct
for use of the phrase free to roam have been made
by consent in relation to one poultry producer. A
pecuniary penalty was also imposed by the Court.
Two other producers who fought the allegations
made by the ACCC are currently awaiting judgment.

Page 8

Food Law Update June 2012

The Australian Competition and Consumer Commission

(ACCC) has sued a number of chicken producers, including
La Ionica (Turi Foods Pty Ltd), Baiada Poultry Pty Ltd and
Bartter Enterprises Pty Ltd, alleging breaches of sections
18, 29(1)(a) and 33 of the Australian Consumer Law (ACL)
(and equivalent provisions of the Trade Practices Act 1974
(Cth) (TPA)) for advertising that chickens were grown in
an environment where the chickens were free to roam,
either cage free in the case of La Ionica or in large
barns in the case of Baiada and Bartter. La Ionica agreed
to orders declaring they had engaged in misleading and
deceptive conduct, however Baiada and Barter have fought
the allegations leaving the matter to be determined by
the Federal Court. Justice Tracey reserved judgment on
16 April 2012.

Following a string of recent prosecutions in relation to

free range eggs, the ACCC has continued to focus on
farming practices and the associated representations
that influence many consumers food choices.

La Ionica consented to orders which provided for:

In September 2011, the ACCC commenced proceedings

against a number of chicken producers and the Australian
Chicken Meat Federation Inc, alleging that the producers
have made false and misleading claims through packaging
and advertising that gives the impression that chickens
raised in barns are raised in conditions where they can
roam freely and, in the case of one La Ionica advertisement,
in conditions equivalent to free range conditions.

injunctions, enjoining La Ionica from advertising

that its barn raised chickens are free to roam or
free roaming for a period of three years;

ACCC v Turi Foods Pty Ltd (La Ionica)

La Ionica used the phrases free to roam, free roaming
and no cages, which it displayed on promotional posters
and delivery truck signage. Some of the advertising which
included these phrases, failed to refer to the fact that the
chickens were raised in barns.
La Ionica also produced a poster known as the Health
Farm poster which was a cartoon illustration of chickens
lounging on deck chairs in a large spacious shed with
an open doorway with chickens walking outside under a
blazing sun. The poster included the phrases Health Farm;
The Good Life of a La Ionica Chicken and free to roam in
large open sheds - NO CAGES.
The court held that these promotional materials made
representations (Representations) to the effect that La
Ionica chickens are raised or grown in barns in which the
chickens have at all times substantial space available
allowing them to roam around freely.
The parties submitted an agreed statement of facts and
the Court found that the Representations:
a) were misleading and deceptive and likely to mislead
and deceive;

declarations that it had engaged in misleading and

deceptive conduct and made false representations
about the history of its goods;

corrective advertising;
implementation of compliance training; and
the imposition of a pecuniary penalty.
While noting that it was not bound by the pecuniary
penalty proposed by the parties, the Court took into
account the need for deterrence and La Ionicas
co-operation with the ACCC in imposing the
$100,000 penalty proposed by the ACCC and La Ionica.

ACCC v Baiada Poultry and Ors

The other producers sued by the ACCC who made similar
representations to those made by La Ionica, such as free to
roam around large barns, have fought the allegation that
this representation is misleading, despite the fact that the
stocking densities in their sheds are equivalent or perhaps
slightly higher than La Ionicas. The matter was heard in
April with judgment being reserved on 16 April 2012.

Lessons for producers

Representations about farming practices are currently
being targeted by the ACCC.
Producers should think carefully about how a consumer
might perceive farming conditions before readily labelling
a product as free range or free roaming.
Even where no cages are used, if in reality the mobility
of animals is still constrained, claims about freedom will
likely invite scrutiny from the ACCC.

b) falsely represented that the La Ionica chickens had

a particular history; and/or
c) were liable to mislead the public as to the nature
and characteristics of La Ionica chickens;
because the chickens are raised in a barn in which the
stock densities are such that they do not, as a practical
matter, have at all times in the growth cycle substantial
space available to roam around freely.
The average stock densities at one stage of the growing
process were approximately 18.19 chickens per square
metre, in the period where the target weight for the
chickens is 1.7kg.
The Court considered that on the basis of the agreed
facts, La Ionica barns are maintained at such a level that
the chickens have severe restrictions placed on their
capacity to roam, if, indeed, any such capacity exists.

Elizabeth Holzer

Lawyer, Melbourne
elizabeth.holzer@ashurst.com

Belinda Findlay
Partner, Melbourne
belinda.findlay@ashurst.com

Food Law Update June 2012

Page 9

ACCC successfully protects regional

producers in King Island origin claim
In brief
A Victorian butcher was fined $50,000 for misrepresenting that its meat products were sourced from King Island.
This case issues a further warning to retailers who falsely use regional reputation to sell goods at a premium
price, that they may find themselves pursued by the ACCC.

The Australian Competition and Consumer Commission

(ACCC) has had consent orders made against Victorian
butcher Hooker Meats Pty Ltd (Hooker Meats), trading as
Peninsula Bulk Meats, for falsely claiming that its meat
products were grown on King Island. The ACCC instituted
proceedings in August 2011 on the basis that Hooker Meats
misrepresented in newspaper advertisements and online
that its meat was sourced from King Island. The advertising
claimed that the butcher sold a Full Range of King
Island Trading Beef and Dairy Products, combined with
a distinctive King Island logo and the words King Island
in descriptions of specific cuts of meat. In reality, none of
Hooker Meats products originated from King Island.

ACCC protects regional reputation

of quality produce
On 23 February 2012, the Federal Court made orders by
consent imposing a $50,000 penalty on Hooker Meats.
Hooker Meats also provided an undertaking to the court
that it would stop falsely representing that its meat
originates from King Island.
This action recognises that consumers associate regions
such as King Island with quality produce, and will pay a
premium price for goods sourced from this area. ACCC
Chairman Rod Sims highlighted that primary producers
work hard to develop a regional reputation for quality
produce, with this action recognising the time and
money invested by regional producers to build and
maintain this reputation.
This case also protects consumers who support regional
producers, and are willing to pay a higher price for goods
such as meat from King Island, from being misled by false
advertising and branding of goods. This is particularly
important with consumers increasingly demanding
that their products are sourced from within Australia.

Page 10

Food Law Update June 2012

Lessons for retailers not to engage in

misleading conduct
There has been a series of recent interventions by the
ACCC in instances where retailers have misled the public
through false advertising. This case follows others such
as ACCC v Aldi & Spring Gully, concerning honey labels
that claimed the product was produced and made with
honey from Kangaroo Island, when in fact the actual
content of honey from Kangaroo Island was less than half.
These cases signal a clear intent on behalf of the ACCC
to protect producers and their efforts in establishing a
regional reputation of quality produce. Mr Sims regards
this case as a lesson and a further warning to retailers
tempted to engage in misleading conduct: do so and
you may find yourself in court.

Phoebe Vertigan

Graduate, Melbourne
phoebe.vertigan@ashurst.com

Annika Barrett

Senior Associate, Melbourne

annika.barrett@ashurst.com

No truth in labelling
for palm oil

In our 13 December 2010 edition of Food Law

Update, we reported on the introduction of the
Food Standards Amendment (Truth in Labelling
Palm Oil) Bill 2010 (Bill) into the Senate on
30 September 2010. The Bill has since been
laid aside, following two Parliamentary reports
advising against its adoption.
Recap
The Bill sought to amend the Food Standards Australia New Zealand Act 1991
and the Australian Consumer and Competition Act 2010, to provide for the
accurate labelling of the palm oil in food. If passed, the Bill would have
required Food Standards Australia New Zealand (FSANZ) to develop and
publish a standard requiring food producers to label palm oil on packaging
if it was used in the product. The rationale behind the Bill was to encourage
the use of certified sustainable palm oil and to inform consumers of the
presence of palm oil in foods for health purposes.

In brief
Despite the commendable health
and environmental objectives of the
Food Standards Amendment (Truth
in Labelling Palm Oil) Bill 2010,
two reports issued by the Senate
Community Affairs Legislation
Committee and the House of
Representatives Standing Committee
on Economics, advised against the
adoption of the Bill.
The Bill has now been laid aside
following the issuance of these reports.

Food Law Update June 2012

Page 11

The Senate Committee Report

The House of Representatives Report

The Bill was referred to the Senate Community Affairs

Legislation Committee (Senate Committee) which issued
a Report in June 2011, advising against the adoption of
the Bill (Senate Committees Report).

On 4 July 2011 the Bill was introduced and read for the first
time in the House of Representatives. A Report (the House
of Representatives Report) on the Bill was also issued by
the House of Representatives Standing Committee on
Economics (the House of Representatives Committee)
on 19 September 2011.

The Senate Committees Report found that although clear

and accurate information about the provenance of good
products was a commendable objective, (the Bill) was not
drafted to achieve these objectives without circumventing
the current regulatory environment. In particular, the
Senate Committees Report found that intervention in the
manner proposed by the Bill would cut across current
FSANZ standards development process and state and
territory laws.
Despite the Senate Committees recommendations that the
Bill not be passed, it was passed by the Senate on 23 June 2011.

The House of Representatives Committee found that the

Bill will not bring about the desired result. Rather its
implementation would have unintended consequences
and cause damage to commercial arrangements and
international relations.
At a national level, the House of Representatives Committee
found that the Bill was not enforceable because it proposed
to operate outside the Commonwealth, State and Territory
Governments, potentially leading to inconsistencies in
labelling across these jurisdictions. Internationally, it
was concluded that, by singling out palm oil, the Bill was
more discriminatory than necessary to fulfil a health or
environmental objective, meaning that Australia may be at
risk of a trade dispute under World Trade Organisation rules.
The House of Representatives Committee recommended
that the Bill not be passed and instead, recommended that
the government consider other options for the labelling
of oils in products (ie, Recommendation 12 of the Labelling
Logic: Review of Food Labelling Law and Policy (2011)).

Current Status of the Bill

The Bill has been laid aside and was removed from the
House of Representatives Notice Paper on 19 March 2012.

Adele Llewellyn

Lawyer, Melbourne
adele.llewellyn@ashurst.com

Page 12

Food Law Update June 2012

Belinda Findlay
Partner, Melbourne
belinda.findlay@ashurst.com

Fast food labelling

laws introduced in ACT
In brief
Under new laws that will come into effect on 1 January 2013, certain food retailers in the ACT will need to display
the kilojoule content of their food products on menu displays.
In September last year, the ACT government passed legislation requiring certain food retailers in the ACT to
disclose the energy content of the food items they sell. The legislation was modelled on similar legislation in
NSW which came into effect in February 2011. The new laws come into effect on 1 January 2013.

Mary Papadopoulos

Lawyer, Sydney
mary.papadopoulos
@ashurst.com

Lisa Ritson

Partner, Sydney
lisa.ritson
@ashurst.com

What ACT food retailers need to do

The new laws mean that:
Businesses such as major fast food chains (with 7 or more places in the ACT
or 50 or more places in Australia) will be required to display the kilojoule
content of standard food items sold at the outlet.
A standard food item means ready-to-eat food that is sold in servings that
are standardised for portion and content but does not include ready-to-eat
food that arrives at the premises and is sold in a container or wrapper.
Businesses will also need to display the statement: The average adult daily
energy intake is 8,700 kJ.
The kilojoule content must be in the same font and size as the price for the
food item.
The kilojoule content must be displayed on each menu on which the name
or price of the food item is displayed, including drive-through menu boards.
The legislation will be reviewed by the Minister after the end of its first three
years of operation.

Food Law Update June 2012

Page 13

Will the Food Standards Amendment (Truth

in Labelling Genetically Modified Material)
Bill 2010 (Cth) progress any further?

In brief
The proposed amendments contained in the
Food Standards Amendment (Truth in Labelling
Genetically Modified Material) Bill 2010 (Cth) seek
to ensure that all food products containing genetically
modified material must reflect this information in the
product labelling.
This cuts across the recommendations made in
the Blewett Report and comments made by the
Department of Health and Ageing and so it is
unlikely that this Bill will progress.

The Food Standards Amendment (Truth in Labelling

Genetically Modified Material) Bill 2010 (Cth) (Bill) was
introduced into the Senate on 16 November 2010. If passed,
it will amend the Food Standards Australia New Zealand
Act 1991 (Cth) (the Act) to provide for accurate labelling
of genetically modified (GM) material in food.
Under the current food labelling standard, GM material
does not need to be disclosed if genetic engineering was
used to create the product. For example, refined sugars
and oils derived from genetically modified plants are
not labelled. In addition, the current standard does not
require food which contains less than 1% GM material
to be labelled if the existence of the GM material is
unintentional. This means, for example, that GM material
found in food as a result of contamination during the
growing, transport or handling of a product does not need
to be labelled if it forms less than 1% of the product.

Page 14

Food Law Update June 2012

What will change if the Bill is passed?

Senator Xenophon and Senator Siewert have proposed
the Bill. They state that the current position limits the
information available to consumers, preventing them from
making informed decisions about the food they purchase.
The purpose of the Bill is stated to be to ensure that food
labelling displays truthful and accurate information about
GM material, irrespective of the amount or how it came to
be present in the product.
If the Bill is passed, Food Standards Australia New
Zealand (FSANZ) will be required to develop and approve
a standard that would require producers, manufacturers
and distributors of food containing GM material to list
that material as an ingredient on the foods packaging.
This would be required regardless of:

Bill does not conform to Blewett Report

recommendations
However, the changes proposed by the Bill conflict with
some of the key recommendations made in the Blewett
Report which were supported by the Government. As
discussed in the 8 July 2011 edition of the Food Law Update,
the Blewett Report made several recommendations in
relation to GM food. It suggested that only foods that
have altered characteristics or contain detectable novel
DNA or protein be required to reflect the presence of
GM material on the label, and did not recommend
altering the unintentional GM trace threshold of 1%.
The lack of conformity of the Bill to these supported
recommendations suggest the Bill is unlikely to progress.

(a) the amount of GM material in the food;

(b) the manner in which the GM material made its
way into the food; and
(c) the fact that the food was not intended to contain
GM material.
FSANZ will also be required to formulate guidelines for
due diligence by manufacturers, producers and distributors
for GM-free food in an aim to prevent contamination of
food by GM material. The due diligence guidelines will
be required to cover:
(a) verification of the chain of custody relating to
ingredients used to produce GM-free foods;

Melissa Ashdown

Graduate, Melbourne
melissa.ashdown@ashurst.com

Joanna Lawrence

Senior Associate, Melbourne

joanna.lawrence@ashurst.com

(b) procurement or supply contract requirements

for ingredients for GM-free food; and
(c) verification of testing and the results of testing
GM-free food produced or manufactured in a high
risk country or food containing ingredients sourced
from a high risk country (a high risk country
means a country which is likely to be a source of
foods or ingredients contaminated by GM material
and which will be prescribed in the regulations).
Finally, FSANZ will be required to develop guidelines to
assist agencies involved in the compliance testing and
enforcement of the Australia New Zealand Food Standards
Code in relation to a GM food labelling standard. If enacted,
the amendments will commence 28 days after Royal Assent
and FSANZ must establish the guidelines outlined above
within six months.

Food Law Update June 2012

Page 15

Ashurst Australia
contact details

Sydney Lisa Ritson

61 2 9258 6093

Melbourne

Belinda Findlay
Peter Chalk

61 3 9679 3612
61 3 9679 3106

Brisbane Ian Humphreys

61 7 3259 7180

Perth

Paul Riethmuller

61 8 9366 8754

Canberra

Bill Conley

61 2 6234 4000

Adelaide Simon Fraser

61 8 8112 1000

Port Moresby Tim Glenn

675 309 2000

Shanghai Michael Wadley

86 21 5100 1796

Singapore Rhonda Hare

65 6221 2214

Tokyo Natsuko Ogawa

81 3 5405 6200

Associated Office Jakarta Greg Terry

62 21 2996 9200

This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice
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