The Committee commenced their inquiry in June 2021.
A key focus of the inquiry was the appropriation of product labelling by manufactured plant-based or synthetic protein brands, including:
- the use of manufactured plant-based or synthetic protein descriptors containing reference to animal flesh, e.g. 'meat' or 'beef'; and
- the use of animal imagery on packaging or in marketing materials for manufactured plant-based or synthetic protein.
The Committee’s final report was released last week. The report details the Committee’s strong opposition to the use of animal protein descriptors and animal imagery by the plant-based protein sector. The Committee sympathised with concerns that plant-based protein manufacturers have been allowed to 'piggyback' off the animal protein sectors’ significant investment to develop consumer brand recognition by adopting known meat category terms (e.g. 'meat' or 'beef') rather than developing its own creative terminology.
The Report details 9 recommendations by the Committee, which are intended to address consumer confusion resulting from current labelling and marketing practices in the plant-based protein industry. These recommendations are set out in full at the end of this article.
Are changes to the Australia New Zealand Food Standards Code to regulate plant-based protein products on the horizon?
Several of the recommendations are Australian-specific. However, the Committee has also recommended a review of the Food Code, which will be of particular relevance to New Zealand-based manufacturers. Specifically, the Committee recommends that Food Standards Australia New Zealand (FSANZ) initiate:
- a review, in consultation with industry, of standard 1.1.1-13(4) of the Food Code and recommends exempting its application to named meat, seafood and dairy category brands; and
- consultation with stakeholders about amending the Food Code to include:
- a definition of plant-based protein products; and
- minimum compositional requirements for plant-based protein products.
The Committee has indicated that these recommendations should be implemented as part of the review and modernisation of the Food Standards Australia New Zealand Act 1991 (FSANZ Act), which commenced in July 2020. The Committee has also recommended that FSANZ develop labelling and marketing guidelines for manufacturers of plant-based protein products, once this review has been completed.
International approaches to the regulation of plant-based protein products
Whether traditional meat or animal terminology should be used on plant-based products has become something of a 'hot topic' globally. There have been efforts in both the United States and the European Union to regulate the use of meat and animal terminology on plant-based products, with varying degrees of success.
In 2020, the European Parliament voted in favour of Amendment 171, prohibiting plant-based alternatives from using dairy terminology such as 'milk', 'butter' or 'cream'. At the same time, it considered Amendment 165, which would ban terminology such as 'burger', 'steak' or 'sausage' in relation to plant-based products. However, that amendment was not supported. In 2018, France independently amended its Agriculture Bill to prohibit any product largely based on non-animal ingredients from featuring traditional meat and/or dairy terms on its label.
In the US, voluntary standards for plant-based meat, milk and yoghurt alternatives have been developed by the Plant-based Food Association. A number of U.S. States have or had laws restricting the use of traditional meat and dairy terminology on plant-based products. However, pushback from plant-based alternative companies and associated litigation has meant these laws have generally not yet been enforced.
What the recommendations might mean for New Zealand-based plant protein manufacturers
The Food Code establishes the legal requirements for food produced or imported for sale in Australia and New Zealand. Any approved amendment to the Food Code will likely be adopted into both Australian and New Zealand food laws.
Standard 1.1.1-13(4) of the Code currently states:1
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.
This Standard permits the use of “qualifying descriptors” on food labels to ensure consumers are aware of the true nature of a product, e.g. 'vegan cheese' or 'chicken-free chicken'. The Committee recommends that this Standard be amended to exempt its application to named meat, seafood and dairy category brands. This would have the effect of essentially prohibiting the use of traditional meat and dairy descriptors on plant-based products, with qualifier statements. At this stage, there is no suggestion the use of utility terms (e.g. 'mince' or 'burger') on plant-based products should be prohibited.
The Food Code does not currently contain definitions of plant-based alternatives or prescribe minimum compositional requirements. In reaching its recommendation that these gaps be considered as part of the current review of the FSANZ Act, the Committee noted a concern about reports of unverified nutritional claims being made by manufacturers of plant-based protein products, e.g. unsubstantiated claims about health and environmental benefits in favour of plant-based protein or against animal protein.
Use of animal imagery on labelling and marketing materials
The Committee strongly objected to the use of animal imagery on the labelling and marketing of plant-based protein products, noting that this played a significant part in causing consumer confusion. As there was no avenue to address the use of animal imagery under the Food Code, the Committee has recommended the Australian Competition and Consumer Commission (ACCC) develops a National Information Standard that defines and restricts the use of meat category brands to animal protein products, and includes guidance on the use of livestock imagery for labelling and marketing of plant-based animal products.
At present, plant-based products are governed by the same standards as other foods sold in Australia and New Zealand. New Zealand-based manufacturers of these products are subject to the Fair Trading Act 1986, which generally prohibits conduct that is misleading or deceptive (or conduct that is likely to be misleading or deceptive) and false or misleading representations about – for example – the composition of food products. It is common for the New Zealand Commerce Commission to mirror and adopt any changes by the ACCC in its regulatory approach. If a National Information Standard is developed by the ACCC to restrict the use of meat category brands and livestock imagery on plant-based products, New Zealand-based manufacturers should be prepared for the real possibility that a similar regulatory approach will be taken in New Zealand.
If you have any questions about the matters raised in this article please get in touch with the contacts listed or your usual Bell Gully advisor.
List of recommendations by the Australian Senate Rural and Regional Affairs and Transport Legislation Committee
Recommendation 1
The committee recommends the Australian Government develops a mandatory regulatory framework for the labelling of plant-based protein products, in consultation with representatives from the traditional and plant-based protein sectors, food service industry and retailers.
Recommendation 2
The committee recommends the Australian Competition and Consumer Commission reviews the placement of plant-based protein products in retailers’ stores, including online platforms.
Recommendation 3
The committee recommends the Australian Government ensures the application of a mandatory regulatory framework is applicable to cultured meat products, in preparation for the introduction of those products onto the Australian market.
Recommendation 4
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.
Recommendation 5
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.
Recommendation 6
The committee recommends the Australian Competition and Consumer Commission develops a National Information Standard that defines and restricts the use of meat category brands to animal protein products. This standard should include guidance on the use of livestock imagery for labelling and marketing of plant-based protein products.
Recommendation 7
The committee recommends the Department of Agriculture, Water and the Environment, in partnership with the Commonwealth Scientific and Industrial Research Organisation, examines measures to:
- strengthen the plant-based protein product sector’s capacity to source its products from Australian grown produce; and
- support investment opportunities into the Australian plant-based alternative product sector’s manufacturing infrastructure to foster competitiveness and market opportunities on the international market.
Recommendation 8
The committee recommends the Department of Agriculture, Water and the Environment ensures that the plant-based protein product sector is supported to contribute to the Ag2030 goal of achieving an AU$100 billion agricultural sector by 2030.
Recommendation 9
The committee recommends that, as part of its review of the Food Standards Australia New Zealand Act 1999, FSANZ initiates consultations with stakeholders about amending the FSANZ Code to include:
- a definition of plant-based protein products; and
- minimum compositional requirements for plant-based protein products.
1 This Standard was introduced as an amendment to the Code in 2016. At the time, it was largely considered in the context of dairy descriptors for plant-based juice products ('analogue dairy'), such as 'soy milk' or 'almond milk'.