3.1
The primary regulatory focus of this inquiry was on the appropriateness of section 1.1.1—13(4) of the Food Standards Australia New Zealand Code (FSANZ Code, the Code). As demonstrated throughout this report, the FSANZ Code permits the use of meat category brands on non-meat products when used in conjunction with a qualifying statement that indicates the true nature of the food. The extract of section 1.1.1—13(4) specifically states:
If a food name is used in connection with the sale of a food (for example in the labelling), the sale is taken to be a sale of the food as the named food unless the context makes it clear that this is not the intention.
3.2
In practice, the use of qualifier statements varies across the plant-based protein sector. As revealed by this inquiry, it has become common practice for traditional animal protein descriptors, images and utility terms to be utilised, alongside qualifier statements such as ‘plant-based’, ‘vegan’ or ‘beef-free beef’. The prominence of such qualifier statements on the packaging, through font size and style, has been shown to vary across product labels.
3.3
This chapter considers the origin of section 1.1.1—13(4) of the FSANZ Code, its original intent and concerns raised by the animal protein sector about the consultation process in the lead up to the amendment in 2016. Further, this chapter considers application in a contemporary context, which has extended beyond plant-based dairy products.
3.4
This chapter then reviews the varied use of animal protein descriptors, livestock images and utility terms across the plant-based protein sector, and discussions on the appropriateness of their continued use. It concludes with suggested amendments to the FSANZ Code.
Section 1.1.1—13(4) of the FSANZ Code
3.5
As noted in Chapter 1, a core element of the debate concerning plant-based product labelling requirements is the application of section 1.1.1—13(4) of the FSANZ Code. Throughout this inquiry, this section of the Code was referred to as the ‘Sanitarium amendment’, with various stakeholders noting that Sanitarium had made the proposal to permit the use of dairy terminology for dairy analogue products. However, FSANZ clarified with the committee that the amendment to the Code was not at the request of Sanitarium; rather, it was in response to a 2009 ruling of the Supreme Court of New South Wales into Christine Tumney (NSW Food Authority) v Nutricia Australia Ltd (the Nutricia Case).
3.6
According to FSANZ, the Nutricia Case demonstrated that there was not a clear understanding about what constitutes food, with the court declining ‘to apply the definitions of food that appear in the FSANZ Act…Instead, the court applied what was described as a “common understanding” about what constitutes food’. Prior to the 2016 amendment, FSANZ acknowledged that:
… [t]he current design of the Code is based on the concept that all food can be sold provided the food is not specifically prohibited. The Code excludes, and then provides specific permissions for, some types of food or substances that can be added to foods. This establishes a complex matrix of permissions that is difficult to enforce.
3.7
FSANZ accordingly initiated a legal review of the FSANZ Code, known as Proposal P1025 in 2013. As part of this legal review, FSANZ developed draft variations of the FSANZ Code, which included the proposed section 1.1.1—13(4) that ‘provides that if a name is used when a food is sold, that name is assumed to be the true name of the food unless another name is apparent from the sale context’. As part of the legal review, FSANZ called for submissions on two occasions, the first on 23 May 2013 and the second on 10 July 2014.
Consultation and application of section 1.1.1—13(4)
3.8
Since the founding of section 1.1.1—13(4) of the Code, the dairy industry has raised this matter numerous times to address ‘the misuse of dairy terms and images in the marketing and labelling of plant-based alternatives’. The Australian Dairy Industry Council (ADIC) considered the matter a ‘longstanding problem’ and informed the committee that it has seen:
… plant based products using dairy terms like 'milk' despite not having these in their ingredients, images of cows used in marketing despite cows not being part of the production process and claims of nutritional equivalence or better than dairy despite the contrary. This is a clear market failure in the form of information asymmetry that requires government intervention.
3.9
The animal protein sector also criticised the Code, in particular the absence of consultation with meat producers during FSANZ’s consideration of the amendments that formed Proposal P1025. The Red Meat Advisory Council (RMAC) pointed out that FSANZ had not consulted with the red meat industry, that its consideration of the section 1.1.1—13’s scope was limited, prioritised the interests of Sanitarium and failed to recognise the ‘flow on effect’ of the regulation’s impact:
There is no evidence of consultation with the Australian red meat industry through the process that considered the amendment. Having received the background to Section 1.1.1—13 and all the submissions made during the consultation process, it is clear that the wording was influenced by the submissions made in relation to analogue dairy products without consideration of the flow on effect such wording would have on analogue meat products. Importantly, the wording was influenced by the arguments of a company with a vested interest in selling plant-based beverages as “milk”, while the meat industry made no submission.
3.10
RMAC recommended that, ‘given no consultation was undertaken with the meat industry on the Sanitarium amendment to [s]ection 1.1.1—13, the Code is revised to explicitly state this section is not applicable to named meat products’ under the Code.
3.11
The committee questioned FSANZ on the consultation process leading up to the 2016 amendments. Its representatives spoke of public consultations taking place in the form of ’30 and 40 submissions’ from a range of stakeholders across governments, industry and consumer groups, with dairy representatives participating in the process.
3.12
Regarding section 1.1.1—13, FSANZ commented that the amendment was to clarify a ‘pre-existing intent’ that already existed under the Code, as explained by FSANZ Interim Chief Executive Officer, Dr Sandra Cuthbert:
[T]he change that is referred to here was only to clarify the pre-existing intent already within the code, so nothing drastic was intended to come out of this piece of information. The products had already been available on the market for many years, so the intent of the legislation was a clarifier of what was already in existence.
Guidelines to interpret and understand the Code
3.13
The meat and dairy sectors critiqued FSANZ for the lack of guidelines available for industries to interpret and understand the application of section 1.1.1—13. RMAC raised the concern that, although FSANZ does not have an enforcement role, it does have a legislative function to develop guidelines to assist with the interpretation of the Code. RMAC made clear that FSANZ had not ‘developed guidelines on the use of non-defined red meat category brands such as “beef”, “lamb” and “goat”’. For this reason, FSANZ had failed ‘to deliver upon the authority’s legislative function’. To address this issue, RMAC recommended that FSANZ ‘immediately develop a guideline to assist in the interpretation of the [FSANZ] Code standards relating to the labelling of “beef”, “lamb” and “goat”’.
3.14
The committee asked FSANZ whether it had developed guidelines to assist with the interpretation of section 1.1.1—13 of the Code. In response, FSANZ said it had historically issued guidance around labelling standards but clarified that it had not been updated to reflect changes made to the Code in 2016. Ms Jenny Hezelton, Director of Labelling and Information Standards, said:
They're actually old; they date back to when the joint food standards code came into effect, which was in 2001. A number of them have not been updated, so they are historical documents. Since the code revisions, so the 2016 change to the code that you were referring to earlier, there has not been an update of that guidance since that time. Many of the jurisdictions in Australia, the states and territories, have the enforcement responsibility. A number of them have done some of that division of guidance by virtue of the information that they make available on their own websites or in their assistance to industry.
The use of animal protein descriptors, livestock images and utility terms
3.15
A primary concern shared by all stakeholders that participated in this inquiry was whether certain traditional meat descriptors and terminology should be restricted in their use. The committee received a range of views, that broadly were categorised as:
those in favour of continued use of animal protein descriptors and utility terms;
those in favour of restricted use of animal protein descriptors, but supportive of plant-based protein products use of utility descriptors; and
those in favour of a wide-scale ban on plant-based protein products use of both animal protein and utility descriptors.
3.16
A further matter raised throughout the inquiry was the use of animal imagery on the labelling and marketing of plant-based protein products.
3.17
The continued use of meat terminology on plant-based protein products was widely objected to by the animal protein sector and other stakeholders. As described in Chapter 2, this sector reported instances of consumer confusion because of product labelling practices by the plant-based protein sector. Across the red meat, poultry, pork, seafood and other agricultural sectors there were calls for regulations that prohibit the use of animal descriptors being used by plant-based products, with section 1.1.1—13 of the Code being revised to explicitly exclude its application to named meat and seafood products. The Australian Dairy Products Federation perceived this type of regulatory change as a long-term objective for the dairy sector, with its representatives favouring a voluntary framework as a first step to addressing their concerns.
3.18
The RMAC made clear that it was ‘seeking minimum standards to prohibit the use of descriptors including “meat”, “beef”, “goat”, “lamb” et cetera’ because plant-based protein products ‘are deliberately trying to piggyback on [their] product and pretend that they are everything that our product is, when in fact they’re not’. RMAC’s Independent Chair, Mr John McKillop, provided an example of the imbalance in the approach taken by the plant-based protein sector, asking what response vegan groups would have if meat products were labelled as ‘animal-based lentils’:
Say one of the meat processors decided to use an offal product and turn it into something that looked like chickpeas. Say they dried them out, put them in the vegan aisle and called them 'animal based lentils' or 'animal based chickpeas'. There would be absolute outrage from the vegan groups. They'd say: 'You're trying to deceive us into buying a product that's clearly animal based and you're trying to pitch it as something it's not.' Yet somehow these same groups seem to think that it's okay to do completely the same to us and put pictures of steers or cows on a product and call it beef and not think that we would find that offensive to our production systems.
3.19
Mr McKillop specifically detailed the red meat sector’s objection to the current operation of the FSANZ Code under section 1.1.1—13 and FSANZ’s failure to adequately consult with Australian consumers. Mr McKillop called for this loophole to be closed, and warned the failure to do so would have ramifications for the entire animal protein supply chain:
I think we need to close this loophole, because infringing our trademark brand to sell other products unlawfully—or it should be unlawful in Australia—denigrates the hard work of all those involved. And it's not just the producers. It's the workers; it's the butchers; it's everyone involved in the supply chain.
3.20
RMAC considered the continual use of meat category brands by plant-based protein products to describe ‘sensory experiences’ as an ‘infringement upon the unique intellectual property developed by our industry’. This investment, through ‘compulsory levies and private expenditure in red meat-eating quality programs are severely devalued if any vegetable product can benefit from’ the industry’s category branding.
3.21
Arguments in support of minimum regulated standards that restrict the use of animal products descriptors were not isolated to the animal protein sector. The National Farmers’ Federation (NFF) advocated for principles that ensure ‘food labelled with an animal product description is derived from an animal’ and a ‘minimum regulatory regime that prohibits’ plant-based protein products from using ‘descriptors that contain any reference to animal flesh or products’. Specifically, the NFF advocated for a voluntary framework as a first step, yet supported the removal ‘of plant-based protein being called “meat” and/or dairy products that have a clear perception if not definition in people’s minds’, along with increased descriptors indicating a product is plant-based. The NFF highlighted the importance of not impairing Australian meat category brand investments, yet at the same time allowing all protein sectors to grow:
The plant based sector has, in our view, taken the opportunity to leverage in labelling already established over time by the animal protein sector. It's our view that we must ensure the legislative and regulatory framework doesn't impair the Australian meat category brand investment from the appropriation of product labelling by manufactured plant based or synthetic protein products, while allowing both plant and red meat protein sectors to grow to their full potential.
3.22
The NSW Farmers Association pointed out the ‘long-established marketing descriptors’ used by beef, sheep, meat, goat, chicken and dairy industries. For this reason, it is necessary for those industries to ‘retain and protect’ their use, nor should another sector be permitted to ‘misappropriate these terms and descriptors for the promotion of their own product that by nature is not the product being marketed’.
3.23
Whilst supportive of minimum standards, Graingrowers noted that no sector should be disadvantaged under any regulatory changes:
Care must be taken that any regulatory changes to the labelling definitions of either end-products, be they plant- or animal-based, do not negatively impact growers, their livelihoods, and their day-to-day operations. Any claims placed the label of a product should be scientifically supported so that consumer confusion and misinformation is avoided.
3.24
Those in favour of an improved regulatory framework clarified that they were supportive of increased consumer competition through the availability of plant-based protein products. However, these submitters and witnesses argued that this competition must take place within an honest and balanced regulatory environment. The committee heard support for plant-based protein products to create their own category branding/value proposition similar to other products, such as margarine. This point was made by AgForce Queensland Farmers who warned this issue would undermine ‘fair competition and risk the integrity and regulatory certainty of the entire food system’.
3.25
The plant-based protein sector largely dismissed the arguments made by the traditional protein sector. Food Frontier advised the committee that a significant proportion of plant-based product already utilise suitable labelling practices. It referenced an analysis of 252 plant-based protein products on retailer shelves which found:
all the products reviewed used one or more qualifier terms on the front of their packaging to indicate they are meat-free, with 85 per cent using two or more terms and 56 per cent using three or more;
sixty-six per cent of those products did not use an animal meat term in the product name, and instead used terms that describe a products’ format and utility (such as ‘burger’, ‘mince’ or ‘tenders’);
animal meat terms were used on 26 per cent of those products, alongside a modification to indicate they are meat-free (such as ‘beefy’ or ‘chicken-less’) and describe the product’s style;
only eight per cent of the product surveyed use an unmodified meat term (such as ‘beef’ or ‘chicken’) along with ‘an average of 2.4 terms either in the product name or elsewhere’ on the front of the packaging to indicate the product is meat-free;
eighty-nine per cent of surveyed products do not use animal depictions on the front of their product’s label, with 7 per cent using animal depictions that occupy less than 10 per cent of the front-of-pack label and a further 4 per cent using animal depictions that occupy more than 10 per cent of the front-of-lack label; and
none of the products surveyed use the term ‘Australian’ in their brand or product name, which according to Food Frontier was ‘contrary to the suggestion that plant-based alternatives are infringing on the [intellectual property] of Australia livestock producers’.
3.26
As detailed in Chapter 2, advocates for the continued use of animal protein descriptors and utility terms emphasised that consumers were not confused by existing labelling practices of the plant-based protein product sector. On this basis, any adjustments to the current regulatory requirements would risk causing consumer confusion. They argued that any changes to the Code are unnecessary because the use of qualifier statements ensures the content of a plant-based protein product is understood by consumers. Food Frontier and the Alternative Proteins Council (APC) argued in favour of this approach, supported by the voluntary framework developed and implemented by the plant-based protein sector in consultation with governments and other industry stakeholders (further considered in this Chapter).
3.27
The APC clarified its position, arguing in favour of a ‘fact-based approach to decision-making, where plant-based protein products are embraced as part of Australia’s local and export food market’. Its representative, Mrs Kirsten Grinter spoke of APC’s support for the existing framework, the importance of clear labelling and the development of a voluntary framework:
I think the regulations are really solid, and we all abide by the same regulations. We need to give consumers information about a product and provide a true product description that enables consumer choice. This is the same whether you've got a meat product or an alternative protein product. Clear labelling is important for both those areas, and clear labelling is really important to us because it really drives that consumer credibility piece. We want consumers to purchase, whether it is an animal based product or an alternative product, with confidence and be satisfied in that. Otherwise, you lose your consumer in the end. The regulations are fit for purpose. I think the areas that you have touched on around descriptors, qualifiers, prominence and that type of thing could all be dealt with in labelling guidance—at least use labelling guidance first off, because it can be agile and we can get it in there quick and really drive consistency and the approach across this growing sector.
3.28
Regarding the use of animal imagery and animal descriptions (such as ‘chicken’ or ‘beef’) on plant-based protein products, Food Frontier emphasised that its analysis of plant-based protein products in Australian supermarkets found ‘only a handful of products that use the atypical approach’ of using ‘animal imagery or unmodified animal meat terms’. It concluded that the ‘vast majority of products in this category are [appropriately] labelled’. Food Frontier stated the analysis ‘dispels some of the misinformation that’s currently part of this [inquiry’s] conversation’. Food Frontier’s Chief Executive Officer, Mr Thomas King, proceeded to explain the unintended consequence of amending the FSANZ Code:
Removing that section of the code could subsequently restrict the use of certain terms beyond the ones of concern like 'beef' or 'chicken'. This could include widely understood format terms like 'veggie sausage' or 'plant based burger' which are used to describe the majority of products in this category. They may not be permitted, based on how the definition of meat is currently structured and all of the terms that sit within that definition. This means, essentially, that Australian producers of these products would be forced to come up with contrived terminology like, I don't know, 'plant based discs', which I think would only cause greater confusion for consumers who are trying to figure out what types of meals these products are intended for. That change I described could also impact the ability for Australian companies to compete in other markets, considering there'd be the need for dual packaging for those places that allow the use of those format terms on plant based products, which is almost every market on earth.
3.29
The committee sought clarification about the types of descriptors that would be deemed reasonable for the plant-based protein sector’s use. In reference to the use of specific livestock terms such as ‘Wagyu’, the Australian Foodservice Advocacy Body considered it ‘would fall out of the best-practice scenario’ and questioned the benefit of using such a term. The manufacturer of Deliciou explained that terms such as ‘beef’ or ‘bacon’ provided consumers with an understanding of a product’s flavour and texture. Food Frontier emphasised that when used, such terms were marketed with qualifier statements (‘meat-free’ or ‘plant-based’) to meet both regulatory requirements and consumer understanding of the product’s intended use and composition.
3.30
Deliciou outlined the impact such a measure would have on its operation should it not be able to use descriptors such as ‘chicken’. It questioned how the company would communicate with consumers about a product’s flavour or texture, concluding that it would be ‘impossible…to communicate the purpose of [its] products to consumers’. It determined that, should regulations prevent the use of such descriptors, it would ultimately lead to there being no market in Australia and Deliciou moving its operations abroad.
3.31
The APC added that it supports ‘clear, consistent labelling overall’ and that the use of all terms, ‘would need to be covered in labelling guidelines’. Most importantly, the development of labelling guidelines to address such matters would support consistency across the plant-based protein sector and ‘get really good uptake across the industry’. Food Frontier agreed that the use of animal meat terms should be discussed as part of the development of a voluntary framework.
Animal imagery
3.32
The use of animal imagery for the labelling and marketing of plant-based products was widely discussed throughout the inquiry. Various stakeholders objected to its use and provided the committee with numerous examples of animal images being utilised on plant-based protein products. Some stakeholders expressed concern for those people with low levels of literacy or those who spoke English as a second language, as demonstrated by findings of the Pollinate survey.
3.33
In contrast, representatives from the plant-based protein sector claimed the use of such imagery was not common practice. The APC informed the committee that only a handful of products on the market used animal logos, and the continued use of such imagery should be a matter explored with the development of a voluntary framework. This point was also made by Food Frontier, who commented that ‘there certainly seems to be a willingness amongst industry to have this conversation and to look to address those concerns’.
3.34
Australian Pork Limited recommended that minimum regulated standards should be developed to prohibit ‘the use of livestock images or other inferences on labelling and marketing materials that implies that the product is made from meat’ for ‘products that are predominately made from manufactured plant-based proteins’. A similar principle was supported by the NFF, but under a voluntary framework as a first step. When reflecting upon the discussions that took place as part of the Industry Working Group, the NFF considered restricting the use of animal images was an easy first step in a voluntary framework because it ‘would send a good message to all parties’.
Utility terms
3.35
The use of utility terms, such as ‘patty’, ‘burger’, ‘sausage’ or ‘mince’ were generally accepted by most stakeholders. The plant-based protein sector made clear that the use of these terms assists consumers with understanding their products. v2Food pointed out that those terms were ‘not proprietary to any company or sector’. Whereas Food Frontier believed any effort to restrict the use of such terms would result in enhanced consumer confusion.
3.36
Seafood Industry Australia (SIA) was supportive of ongoing use of utility terms by plant-based protein producers because those ‘terms speak to the form of the product and how to use a product in terms of the cooking and dining experience’. However, it objected to those terms beings used in conjunction with labels like ‘fish-free fingers’, which is ‘an obvious play on the popular “Fish Fingers”’.
3.37
The RMAC clarified that it was ‘not seeking to prescribe additional definitions for utility terms such as burger, patty or mince’. To qualify its position, the RMAC submitted the following:
Aside from the deliberate piggyback marketing benefits enjoyed by MPBP companies, there is no additional consumer utility derived from describing a product as a “plant based beef burger” than simply a “plant based burger”. Red meat category brands in themselves do not describe how a product is consumed or cooked. As margarine did with butter, MPBP products should establish their own product categories and brands to relay specific sensory experiences rather than appropriating red meat category brands.
FSANZ response to concerns
3.38
The committee raised with FSANZ concerns about the suitability of the Code and its application to plant-based protein products. As part of this inquiry, the committee questioned whether the absence of specific definitions of certain meat terms (‘beef’, ‘chicken’ or ‘pork’) resulted in their use by the plant-based protein sector. In addition, the committee queried whether the issues raised by the animal protein sector was an unintended consequence of the 2016 amendment to the Code.
3.39
In response, FSANZ explained that those meat products would fall under the definition of meat, which ‘is quite broad’. With regard to the amendment, FSANZ’s Interim Chief Executive Officer, Dr Sandra Cuthbert expressed confidence that the 2016 amendment was appropriate:
I believe the legislative phrasing that is being utilised provides provision to ensure that an appropriate description is used to ensure clarity is provided, so that consumers can make an informed choice as to what food it is they're purchasing. So I'm comfortable, based on the information that we've seen to date, that the code—and that portion of the code that was modified in 2016—provides the necessary framework to ensure that foods are labelled in accordance with their true nature or provided a description to ensure that consumers are aware of what it is that they're purchasing. If I can add, this is in addition to other information that's available on the packaging. For the packaged foods, for example, there are the labelling requirements of ingredients lists and a nutritional information panel that goes in addition to the term used on a label for the name of the food itself.
3.40
FSANZ also denied that its policy decisions were influenced by external pressure from major retailers or manufacturers. In response to this line of questioning, the committee was reassured by FSANZ of its independence as a statutory agency. It added that its decisions are guided by evidence and it is ‘always open to more information to make sure’ that it makes ‘the best, most robust, scientific evidence-based decision possible’.
3.41
On this basis, the committee referred to a plant-based protein product that utilised the term ‘bull-free beef’, ‘raw prime mince’ and in small text ‘beefy clean plant protein’. In response, FSANZ suggested the first benchmark is for a determination on whether a product is ‘misleading enough to warrant enforcement action’ under ACL. For this to be achieved, FSANZ recommended that consumers issue complaints with enforcement bodies, which would help inform the need for a review of the Code and ‘generate further guidance for industry’.
3.42
The committee raised a further concern about illiteracy and people’s capacity to comprehend product labels. FSANZ acknowledged that there may be higher risk of those people being misled by pictures and the general overall impression of a product. Suggested solutions, should this issue be explored further, may warrant FSANZ having to ‘generate a new standard or produce some icons’. However, it iterated the need for a further investigation into consumer confusion to explore the best solutions going forward because FSANZ does not ‘jump to regulatory solutions early on if there is an easier non-regulatory option’.
Proposed amendments to the FSANZ Code—section 1.1.1—13(4)
3.43
As demonstrated by evidence in this chapter, a proposed pathway forward to resolve the concerns with existing labelling laws is to exempt section 1.1.1—13(4)’s application to terms used to describe animal protein products. This proposal would seek to prevent the use of terms such as ‘meat’, ‘beef’, ‘chicken’, ‘goat’, ‘lamb’, ‘pork’ or seafood descriptors being utilised on plant-based protein products, with qualifier statements. This approach, as described by SIA, would eliminate ‘grey areas’ facilitated through the existing exemption, address loopholes and allow all sectors to ‘move on in a more refreshed and activated way’. The dairy industry, whilst supportive of a voluntary framework as an initial first step, was also supportive of a similar exemption being made for dairy products.
3.44
As outlined in Chapter 1, there are two pathways to amend the FSANZ Code. The first is for an interested party to make a submission to FSANZ that details the rationale and evidence that supports the proposed amendment. The second is for FSANZ to initiate a review of the Code. Any amendments to the Code are reviewed and subsequently made to the Food Ministers’ Forum and agreed to by state and territory governments, as well as the New Zealand Government.
3.45
Amending the FSANZ Code was considered by the Industry Working Group. Under this proposal, its discussion paper identified several benefits, such as:
the development of a legislative standard that ‘recognises and supports the growth of the plant-based industries as an independent food category’;
the supporting of consistent terminology across plant-based industries;
the establishment of a long-term goal to clarify and develop consistent use of terms traditionally used for meat and dairy products;
support for unique identification of all protein and dairy products;
it builds upon Australia’s reputation for food production by establishing clear parameters and the exportation of products that are clearly differentiated; and
it would potentially support overall health and nutritional goals by supporting consumers to make informed choices to meet health needs.
3.46
Notable detriments identified include regulatory costs on food manufacturers, enforcement costs on government and the need for agreement across governments (including New Zealand).
3.47
The committee heard that discussions regarding the adequately the Code had already commenced within the Food Ministers’ Meeting. The New South Wales (NSW) Government submitted that it had raised the matter of product labelling of plant-based protein products with the Food Ministers’ Meeting in November 2019. During the meeting, the NSW Government argued the matter was an emerging market in Australia and ‘considered it timely to act in order to provide consumers with transparent information to support an informed choice’. The NSW Government stated that it ‘strongly supports the need for absolute truth in labelling and providing clear guidance to allow consumer to compare products like-for-like rather than assuming analogues are nutritionally comparable to animal-based products’.
3.48
AgForce Queensland Farmers called for a regulatory framework that should ‘expressly preclude non-levy-paying industries from misappropriating the branding, which includes meat terminology, reserved from the levy-paying red-meat and livestock industries’. It warned that a failure to regulate the plant-based protein sector would have ‘potentially serious social, environmental and economic impacts across regional, rural and remote Australia’.
3.49
This view was not only held by representatives of the animal protein sector. Mr Nicholas Goddard from the Australian Oilseeds Federation expressed support for an amendment to the FSANZ Code in light of the Industry Working Group’s findings:
Should the proposal that was in that paper be put forward, there would need to be a change to the Food Standards Code, first and foremost. I would see that as something that would be not managed by a voluntary code but, in fact, enshrined within the Food Standards Code. If it were a matter of font size, it would have to be of equal font size to the word 'meat' and quite prominent on the packaging.
3.50
A broader principle for ongoing regulatory review of the labelling requirements under the Code to ensure regulations ‘remain relevant and appropriate’ was supported by the NFF. It called for the Australian Government to make this commitment due to likelihood of this policy area becoming ‘more complex over time with new products, new claims, and new technologies entering the market’.
3.51
As noted in Chapter 1, FSANZ is currently undergoing an extensive review of the FSANZ Act, with the aim to modernise Australia’s food regulatory system.
Committee comment and recommendations
3.52
The committee is supportive of proposals to amend the FSANZ Code, in particular, the application of section 1.1.1—13(4). At the time of its implementation, this section of the code appeared to be narrowly interpreted, with its application limited to the dairy sector. Since that time, the manufactured food landscape has evolved and will continue to do so as technologies advance. For this reason, it is imperative that the regulatory framework that governs naming conventions on all products keep pace with such changes. In the case of plant-based protein products, this has not taken place.
3.53
The committee understands that Australian food regulatory system is currently being reviewed and modernised, as part of a comprehensive examination of the FSANZ Act and its associated operations and responsibilities. Within this context, the committee considers it an optimal opportunity for FSANZ to initiate a review of the functionality and application of section 1.1.1—13(4), namely whether to exempt named meat, seafood and dairy category brands from their application to this section of the code.
3.54
With regard to utility terms, the committee acknowledges that some plant-based protein producers rely upon these descriptors to inform consumers about their products’ intended use. As such, the committee does not recommend their prohibition for plant-based protein products.
3.55
This support does not extend to the use of animal imagery on labelling and marketing material of plant-based protein products. As shown in Chapter 2, the use of this imagery plays a significant part in causing consumer confusion. These images are associated with animal protein, and the committee objects to their continued use. However, the committee understands there is no avenue to address this matter under the FSANZ Code, and for this reason, this matter is further considered in Chapter 4.
3.56
The committee recommends that, as part of its current review and modernisation of the Food Standards Australia New Zealand Act 1999, Food Standards Australia New Zealand (FSANZ) initiate a review in consultation with industry, of section 1.1.1—13(4) of the FSANZ Code and recommend exempting its application to named meat, seafood and dairy category brands.
3.57
The committee considers it a mistake that guidelines were not produced when section 1.1.1—13(4) was initially introduced. The absence of appropriate guidelines may have contributed to its varied interpretation. Should any future changes be made to the FSANZ Code, it is imperative that appropriate guidelines are made available to manufacturers to ensure its application is clearly understood.
3.58
The committee recommends, on conclusion and application of the review of the Food Standards Australia New Zealand Code, that Food Standards Australia New Zealand develops guidelines to inform labelling and marketing practices for manufacturers of plant-based protein products.