By Tommy Chen, Nick Li, Sophie Clapin and Paul Mersiades
Key takeaways
The four proposals before Food Standards Australia New Zealand (FSANZ) reflect ongoing efforts to provide consumers with more accurate and transparent information relating to sugars, carbohydrates and energy labelling.
Developments in the genetically modified (GM) food space highlight ongoing efforts to adapt regulations to emerging technologies while ensuring safety and transparency as consumers' perceptions of GM foods shift towards cautious optimism.
A transition to a mandatory Health Star Rating (HSR) system may be considered as early as 2025 as Ministers endorse changes which included the calculation of HSR calculation methods.
The past 12 months in food and beverage law
We outline the most significant regulatory developments in the food and beverage sector over the past 12 months, as well as upcoming issues for the near future – including in relation to the regulation of sugar-related claims, genetically modified foods, advertising of 'occasional foods', geographical indication protection and the Health Star Rating system.
Regulation of sugar-related claims
There are currently four proposals before FSANZ to amend the Australia New Zealand Food Standards Code (Code) with respect to labelling for sugars, carbohydrates and energy.
Firstly, Proposal P1062 broadly proposes to define and clarify 'added sugars' for the purposes of making voluntary nutrition content claims. The proposal would prohibit 'no added sugar' claims from being made in relation to food which contains particular ingredients (eg fruit juice, dried fruit, pruit purée). It would also prohibit a 'no added sugar' claim if the concentration of sugars in a food is increased from hydrolysis during manufacture (with some exceptions).
Secondly, Proposal P1058 is a related proposal, which is yet to be released for public consultation. Proposal 1058 would require 'added sugars' to be included in the nutrition information panel.
Thirdly, Proposal P1059 proposes to require energy (kilojoule) labelling on alcoholic beverages in the form of a truncated nutrition information panel.
Finally, Proposal P1049 proposes to clarify the requirements in the Code with respect to claims about carbohydrate content and sugars in relation to alcoholic beverages by specifically stating that such claims are not prohibited. This proposal follows a FSANZ review which investigated consumer behaviour in response to sugar content claims in alcoholic beverages, which found little reliable evidence that such claims had a material impact on consumption of alcoholic beverages.
Genetically modified food
GM foods have been part of the food landscape for the better part of the past three decades.
Consumers' initial fear of GM foods is now transitioning into a sense of cautious optimism that genetic modifications can help solve global food security challenges arising from global warming, pests and disease, and natural disasters.
Unlike foods produced using conventional breeding, GM foods require pre-approval by FSANZ before their supply and use in Australia is permitted. Separately, companies producing the GM foods are required to hold a licence from the Office of the Gene Technology Regulator.
Since its inception, FSANZ has approved over 80 GM foods. Currently, FSANZ is assessing GM food applications for Panama disease-resistant bananas (Application A1274) (which, if accepted, would be the first approval in Australia of a whole GM fruit) and pest-resistant corn (Application A1272).
FSANZ is currently progressing a proposal to amend the Code to capture more recent developments in genetic modification technology (such as CRISPR technology). Proposal P1055 would also introduce exemption criteria where there is no justification for requiring pre-market approval of the GM food. This would be a significant shift from the existing regulatory position.
A wide range of submissions from business and the wider community was received by FSANZ in the first round of public consultation on the changes to the Code. A second round of public consultation is expected before the end of the year.
Advertising of 'occasional foods'
The independent MP for Mackellar, Dr Sophie Scamps, introduced the Healthy Kids Advertising Bill 2023 to the Australian Parliament in July 2023. This bill proposes to amend the Broadcasting Services Act 1992 (Cth) to prohibit the broadcasting of unhealthy food marketing on TV and radio between 6am and 9.30pm and online at all times. 'Unhealthy food' is defined in the bill as a food or drink product that falls within a food or drink category not recommended for promotion, by guidance to be published by the Council of Australian Governments, or of the kind determined by the Minister to be unhealthy food. The bill imposes a maximum penalty of 2,000 penalty units (currently $626,000) for contravening the relevant prohibitions. The bill is currently before the House of Representatives.
Geographical indication protection update
Australia has been negotiating a comprehensive free trade agreement (FTA) with the European Union since 2018. The EU has identified strengthened protection of EU geographical indications (GIs) as one of its key objectives in the negotiations. Australia currently does not have a separate system for protecting GIs other than for wines, and has maintained that it would not agree to the EU's GI proposals unless other aspects of the FTA, such as market access, are satisfactory. An election for the European Parliament, which would need to ratify the FTA, is scheduled for June 2024. Trade Minister Don Farrell has warned that the negotiations continuing into the long lead-up to the election will make agreeing the FTA 'a far more difficult process'.
Health Star Rating system update
We reported in 2020 on changes to the HSR System which included changes to HSR calculation methods.
At the July 2023 Food Ministerial Forum meeting, the Ministers endorsed the HSR system to be broadened beyond front-of-pack packaging and for it to be used on a range of digital platforms. Guidance on the use of the rating system on digital platforms is being developed and will be included in the HSR System Style and Calculator Guide on the HSR System website.
The HSR System remains completely voluntary. However, it is worth noting that one of the recommendations accepted by the Ministerial Forum is that a transition to a mandatory system be considered as early as 2025, if uptake targets (being 70% of target products) are not achieved.