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An Impossible Task? Australian Food Law and the Challenge of Novel Meat Analogues

Published online by Cambridge University Press:  01 January 2025

Hope Johnson Open the ORCID record for Hope Johnson [Opens in a new window]  and
Christine Parker
Hope Johnson*
Affiliation:
Law School, Queensland University of Technology
Christine Parker*
Affiliation:
Melbourne Law School, The University of Melbourne, Australia
*
The author may be contacted at h2.johnson@qut.edu.au
The author may be contacted at christine.parker@unimelb.edu.au.
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Abstract

This paper asks what the regulatory assessment of the novel processed meat analogue products reveals about the nature of food regulation in Australia. We analyse Food Standards Australia and New Zealand’s (‘FSANZ’) assessment of the recent application by Californian technology company Impossible Foods Inc to sell its proprietary burger products which contain a genetically modified protein that is said to make their burger ‘bleed’. We show that FSANZ’s assessment process has little capacity to engage with broader and longer term, social, ecological and public health implications of novel foods and changing food markets. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as whole and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. Extending the capacity of Australia’s regulatory regime for food to deal with more than the safety of individual ingredients will become more urgent as other novel foods, such as cell-based meats, enter the marketplace.

Type
Articles
Information
Federal Law Review , Volume 50 , Issue 3: Special Issue (Part 2): Constitutional Struggles in Asia , September 2022 , pp. 331 - 370
Copyright
Copyright © 2022 The Author(s)

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Footnotes

Acknowlegements: We are grateful to Laura Boehm for research assistance; and to the University of Melbourne’s Future Food Hallmark Research Initiative Project for funding. We are also grateful to very helpful comments from Paula O’Brien, Sundhya Pahuja and other participants at the Melbourne Law School Faculty Research Seminar where we presented a draft of this paper, and also Phil Baker, Jenn Lacey-Nicholls, Kate Sievert, Julie Woods and Chloe van der Burg for helpful conversations on this topic.

References

1. Impossible Foods, ‘The Mission That Motivates Us’, Medium (12 March 2018) <https://medium.com/impossible-foods/the-mission-that-motivates-us-d4d7de61665>

2. ‘Impossible Burger’ is the term used by Impossible to refer to its burger mince, and Impossible has registered the term as a trademark in various jurisdictions. In the US, Impossible sells its burger in ground mince and patty versions and it also sells a sausage patty (‘Impossible Sausage’) and another mince product (‘Impossible Pork’). When we are referring specifically to the burger patty or mince, we will use the term ‘Impossible Burger’ whereas references to Impossible products encompass any of its range.

3. Impossible Foods Inc, Application to Amend the Australia and New Zealand Food Standards Code to Allow for the Use of Soy Leghemoglobin (No A1186, FSANZ, 12 July 2019) <https://www.foodstandards.gov.au/code/applications/Documents/A1186Application_Redacted.pdf>. As we explain below, technically the application was to amend the Food Standards Code to permit the voluntary use of soy leghemoglobin in meat analogue products. The application, A1186 — Soy Leghemoglobin in Meat Analogue Products, and all related materials are available at: FSANZ, ‘A1186 — Soy Leghemoglobin in Meat Analogue Products’, Food Standards Australia New Zealand (24 December 2020) <https://www.foodstandards.gov.au/code/applications/Pages/A1186.aspx>

4. Food Standards Australia and New Zealand, 2 nd Call for Submissions — Application A1186: Soy Leghemoglobin in Meat Analogue Products (No 131–20, 6 August 2020) 11 <https://www.foodstandards.gov.au/code/applications/Documents/A1186_2ndCFSreport.pdf>

5. FSANZ, Approval Report-Application A1186: Soy Leghemoglobin in Meat Analogue Products (No [145–20], Food Standards Australia and New Zealand, 15 December 2020) <https://www.foodstandards.gov.au/code/applications/Documents/a1186-approval-report.pdf>.

The Ministerial Forum on Food Regulation (‘the Forum’) accepted FSANZ’s recommendation at its meeting on 12 February 2021: Australia and New Zealand Ministerial Forum on Food Regulation, Communiqué of Outcomes from the Australia and New Zealand Ministerial Forum on Food Regulation Meeting Held on 12 February 2021 (Forum 16, 12 February 2021) 1 <https://foodregulation.gov.au/internet/fr/publishing.nsf/Content/DEC2AE832E9CCCB4CA25867A0016FD36/$File/Forum16-FINALCommuniqu%C3%A9-12Feb2021.pdf> This means the Code will be changed to allow Impossible products that contain soy leghemoglobin. For more discussion on this regulatory process, see the explanation in Part IIIA.

6. See notes 115 to 117 below and accompanying text.

7. Impossible Foods, ‘What Is Soy Leghemoglobin, or Heme?’, IF <https://faq.impossiblefoods.com/hc/en-us/articles/360019100553-What-is-soy-leghemoglobin-or-heme->. See further explanation and discussion below at notes 31 to 33 and accompanying text, 128 to 130 and accompanying text.

8. See Part IIC for further explanation and discussion.

9. In December 2020, the Singapore Food Agency approved, for the first time in the world, the sale of cell-based ‘chicken’ meat analogues by Eat Just, a US company partly based in Singapore. See, Singapore Food Agency, ‘Safety of Alternative Protein’, Singapore Food Agency (9 December 2020) <https://www.sfa.gov.sg/food-information/risk-at-a-glance/safety-of-alternative-protein>.

10. See Part IIA for further explanation and discussion, as well as for the Table of Submissions.

11. Food law and policy scholarship has examined the ends food systems governance should be trying to achieve, and has critiqued the emphasis on individualised, market-based approaches to food systems change. See, eg, Christine Parker and Hope Johnson, ‘Sustainable Health Food Choices: The Promise of “Holistic” Dietary Guidelines as a National and International Policy Springboard’ (2018) 18(1) QUT Law Review 1 (‘Sustainable Health Food Choices’); Rachel Carey et al, ‘Opportunities and Challenges in Developing a Whole-of-Government National Food and Nutrition Policy: Lessons from Australia’s National Food Plan’ (2016) 19(1) Public Health Nutrition 3 (‘Opportunities and Challenges in Developing a Whole-of-Government National Food and Nutrition Policy’); Christine Parker and Hope Johnson, ‘From Food Chains to Food Webs: Regulating Capitalist Production and Consumption in the Food System’ (2019) 15(1) Annual Review of Law and Social Science 205; Tim Lang and Pamela Mason, ‘Sustainable Diet Policy Development: Implications of Multi-Criteria and Other Approaches, 2008–17’ (2018) 77(3) Proceedings of the Nutrition Society 331 (‘Sustainable Diet Policy Development’). Human rights scholarship has also elaborated upon what food systems should be aiming to achieve, and how governments can regulate food to achieve these ends in accordance with human rights principles. See, eg, Olivier De Schutter, The Right to an Adequate Diet: The Agriculture-Food-Health Nexus (Report of the Special Rapporteur on the right to food No A/HRC/16/49, United Nations General Assembly, 20 December 2010) 21.

12. The meaning of ‘a meal’, ie what meals are comprised of, and the sequence of meals are socially determined. In Western cultures, meat is often a component of meals and preferences, traditions, skills and knowledges relating to food and meals are typically based in the use of meat and dairy. Mary Douglas, ‘Deciphering a Meal’ (1972) 101(1) Daedalus 61; Joop de Boer and Harry Aiking, ‘Favoring Plant Instead of Animal Protein Sources: Legitimation by Authority, Morality, Rationality and Story Logic’ (2021) 88 Food Quality and Preference 104098 (‘Favoring Plant Instead of Animal Protein Sources’).

13. See, eg, Garrett M Broad, ‘Making Meat, Better: The Metaphors of Plant-Based and Cell-Based Meat Innovation’ (2020) 14(7) Environmental Communication 1 (‘Making Meat, Better’); Bruce Friedrich, ‘Why GFI Uses the Term “Cultivated Meat” — The Good Food Institute’, Good Food Institute (13 September 2019) <https://gfi.org/blog/cultivatedmeat/>; Björn Witte et al, Food for Thought: The Protein Transformation (Boston Consulting Group, 24 March 2021) <https://www.bcg.com/en-au/publications/2021/the-benefits-of-plant-based-meats> (‘Food for Thought’); World Economic Forum, Alternative Proteins (White Paper, World Economic Forum, January 2019) <http://www3.weforum.org/docs/WEF_White_Paper_Alternative_Proteins.pdf>; Chase Purdy, Billion Dollar Burger: Inside Big Tech’s Race for the Future of Food (Portfolio, 2020) (‘Billion Dollar Burger’).

14. This term is not defined in the Food Standards Code, but it is used in various official policy documents. For example, FSANZ uses the terms in its documentation regarding the Impossible application. It is also used by the Forum on Food Regulation.

15. Stephanie Tai, ‘Legalizing the Meaning of Meat’ (2020) 51(3) Loyola University Chicago Law Journal 743; Carol J Adams, Burger (Bloomsbury Publishing USA, 2018) 87–109.

16. See, eg, M Tziva et al, ‘Understanding the Protein Transition: The Rise of Plant-Based Meat Substitutes’ (2020) 35 Environmental Innovation and Societal Transitions 217 (‘Understanding the Protein Transition’).

17. MN Riaz, ‘Texturized Vegetable Proteins’ in Glyn O Phillips and Peter A Williams (eds), Handbook of Food Proteins (Elsevier, 2011) 395.

18. World Economic Forum (n 13) 9 where it states ‘A continuum can be drawn from protein rich plants that are used in unprocessed forms to substitute for meat in meals (lentils, for example) through more processed products such as soy based tofu and wheat based seiten to recent innovations seeking to make vegetable burgers and other products that are as indistinguishable as possible from real meat. Innovation is occurring across this spectrum … to create a “mouth feel” and experience that closely mimics meat’. See also, Sarah P F Bonny et al, ‘What Is Artificial Meat and What Does It Mean for the Future of the Meat Industry?’ (2015) 14(2) Journal of Integrative Agriculture 255, 256.

19. Jiang He et al, ‘A Review of Research on Plant-Based Meat Alternatives: Driving Forces, History, Manufacturing, and Consumer Attitudes’ (2020) 19(5) Comprehensive Reviews in Food Science and Food Safety 2639, 2644 (‘A Review of Research on Plant-Based Meat Alternatives’).

20. Food biotechnologies refer to the knowledges, technologies and processes applied to microbes and cells from plants or animals to produce new food products or ingredients. Byong H Lee, Fundamentals of Food Biotechnologies (John Wiley & Sons, Ltd, 2015) Preface <http://onlinelibrary.wiley.com/doi/abs/10.1002/9781118384947.ch1>.

21. An alternative pathway is the use of insects (which may have been a traditional part of the diet in some places). We do not discuss the use of insects in this paper. Marie C Boyd, ‘Cricket Soup: A Critical Examination of the Regulation of Insects as Food’ (2017) 36(1) Yale Law & Policy Review 17 (‘Cricket Soup’).

22. Beyond Meat, ‘Our Ingredients’, Beyond Meat — Go Beyond ® <https://www.beyondmeat.com/about/our-ingredients/>.

23. Fungi are not plants. As explained below, Impossible’s novel ingredient is based on genetically modified yeast (a fungi) into which genetic material from soy plant root nodules has been inserted. Quorn, see text accompanying note 195 below, is based on fungi.

24. Neil Stephens et al, ‘Bringing Cultured Meat to Market: Technical, Socio-Political, and Regulatory Challenges in Cellular Agriculture’ (2018) 78 Trends in Food Science & Technology 155 (‘Bringing Cultured Meat to Market’).

25. Hope Johnson, ‘From “Meat Culture” to “Cultured Meat”: Critically Evaluating the Contested Ontologies and Transformative Potential of Biofabricated Animal Material on Culture and Law’ (2019) 22(2) M/C Journal <http://journal.media-culture.org.au/index.php/mcjournal/article/view/1504> (‘From “Meat Culture” to “Cultured Meat”’); Hope Johnson, ‘The Future of Animal Agriculture? Legal and Environmental Implications of Biofabricating Animal Material’ (2019) 34(4) Australian Environment Review 83; Hope Johnson, ‘Regulating Cell-Cultured Animal Material for Food Systems Transformation: Current Approaches and Future Directions’ (2021) 13(1) Law, Innovation & Technology 108.

26. FSANZ, ‘Cell Based Meat’, Food Standards Australia New Zealand (2019) <https://www.foodstandards.gov.au/consumer/generalissues/Pages/Cell-based-meat.aspx>.

27. See note 34 and accompanying text.

28. Göran Eriksson and David Machin, ‘Discourses of “Good Food”: The Commercialization of Healthy and Ethical Eating’ (2020) 33 Discourse, Context & Media 100365 (‘Discourses of “Good Food”’); Ariel Chen and Göran Eriksson, ‘The Mythologization of Protein: A Multimodal Critical Discourse Analysis of Snacks Packaging’ (2019) 22(4) Food, Culture & Society 423 (‘The Mythologization of Protein’).

29. For example, FSANZ uses the term ‘novel protein’ in its second call for submissions to refer only to the specific protein molecule produced by Impossible’s GM process ie soy leghemoglobin: Food Standards Australia and New Zealand (n 4).

30. According to Impossible, ‘soy leghemoglobin’ is short for ‘legume haemoglobin’. Impossible Foods, What Is Soy Leghemoglobin, or Heme? (n 7).

31. Impossible explain that soy leghemoglobin is naturally present in soy plant root nodules but is now mass produced by Impossible via genetically modified yeast in the form of ‘LegH Prep’. In theory Impossible could grow or purchase soy (not the bean, the root nodules) and harvest and refine the molecules without the use of GM technologies. But this is neither economically nor practically feasible at scale: Impossible Foods, ‘Heme — The Magic Ingredient in the Impossible Burger’ (YouTube, 2017) <https://www.youtube.com/watch?v=n6U4H8WC9jg>.

32. Impossible Foods Inc (n 3) 5.

33. The list of ingredients can be found here: Impossible Foods, ‘What Are the Ingredients?’ Impossible Foods <https://faq.impossiblefoods.com/hc/en-us/articles/360018937494-What-are-the-ingredients->.

34. FSANZ lists two less individual submitters in than we do. We had only the redacted versions to work from whereas FSANZ had the full version. We believe the discrepancy is because two individual submissions that are expressed as being from members of community groups were probably considered by FSANZ as part of the relevant consumer group submissions. Some aspects of the publicly available submissions are redacted so it is not possible to completely reconcile with FSANZ’s account.

35. The first call for submissions was required under s 44 of the Food Standards Australia New Zealand Act 1991 (Cth) (‘FSANZ Act’), as part of FSANZ’s assessment of Impossible’s application. The second call for submissions related to the variation of the Code proposed by FSANZ to allow the approval of Impossible product: FSANZ Act s 31. All the supporting documents and submissions received are located at: FSANZ, A1186 — Soy Leghemoglobin in Meat Analogue Products (n 3).

Forty-five separate parties submitted to the first call for submissions, and seventeen to the second call (including 3 parties who had not previously submitted). These were Impossible Foods, Milky Lane (a fast food retailer) and one private individual.

36. FSANZ’s 2nd Call for Submissions names each of the individual submitters, but the names are not available on the website where the submissions can be downloaded. They are redacted to initials. We do not have ethics clearance to name individuals and have not done so except in the case of Sir Peter Jackson and Dame Fran Walsh who are public figures.

37. A number used the same template for submission.

38. Impossible Foods Inc, ‘Sustainability’, Impossible (June 2020) <https://www.impossiblefoods.com/sustainable-food>.

39. Patrick Schenk, Jörg Rössel and Manuel Scholz, ‘Motivations and Constraints of Meat Avoidance’ (2018) 10(11) Sustainability 3858; Chrysostomos Apostolidis and Fraser McLeay, ‘It’s Not Vegetarian, It’s Meat-Free! Meat Eaters, Meat Reducers and Vegetarians and the Case of Quorn in the UK’ (2016) 6(3) Social Business 267.

40. Impossible Foods Inc (n 3) 6.

41. Ibid 5.

42. It found that Impossible products use dramatically less land (99 per cent less) and water (79 per cent less) and avoids water pollution (by 79 per cent) and GHGs (60 per cent). Broadly, these findings align with common knowledge about the environmental impacts of producing and processing plants versus meat, with the latter being far less resource-intensive. Sofia Khan et al, ‘Comparative Environmental LCA of the Impossible Burger with Conventional Ground Beef Burger’ (Final Report, 27 February 2019) <https://assets.ctfassets.net/hhv516v5f7sj/4exF7Ex74UoYku640WSF3t/cc213b148ee80fa2d8062e430012ec56/Impossible_foods_comparative_LCA.pdf>.

43. In summarising its support, Woolworths submitted that ‘If we limit these innovations, it is the Australian and New Zealand consumer that is disadvantaged’: Woolworths, submission to the 1st Call for Submissions (‘CFS1’) (14 February 2020), 2.

44. Australian Food and Grocery Council, CFS 1 (14 February 2020) 3.

45. Good Food Institute, CFS 1 (14th February 2020) 3.

46. In Australia there are two major empirical studies of promotion and marketing claims: Tasmin Dilworth and Andrew McGregor, ‘Moral Steaks? Ethical Discourses of In Vitro Meat in Academia and Australia’ (2015) 28(1) Journal of Agricultural and Environmental Ethics 85 (‘Moral Steaks?’); Jennifer Lacy-Nichols, Gyorgy Scrinis and Rob Moodie, The Australian Alternative Protein Industry (Report, Future Food Hallmark Research Initiative, 21 May 2020) <https://research.unimelb.edu.au/__data/assets/word_doc/0039/179877/Report-The-Australian-Alternative-Protein-Industry-Lacy-Nichols.docx>, which examined the promissory narratives deployed by 16 companies. International studies with similar findings include: Alexandra E Sexton, Tara Garnett and Jamie Lorimer, ‘Framing the Future of Food: The Contested Promises of Alternative Proteins’ (2019) 2(1) Environment and Planning E: Nature and Space 47 (‘Framing the Future of Food’); Julie Guthman and Charlotte Biltekoff, ‘Magical Disruption? Alternative Protein and the Promise of de-Materialization’ (2021) 4(4) Environment and Planning E: Nature and Space 1583 <http://journals.sagepub.com/doi/full/10.1177/2514848620963125> (‘Magical Disruption?’).

47. A germinal report on the issues with intensive meat production and consumption is Henning Steinfeld et al, Livestock’s Long Shadow: Environmental Issues and Options (The Livestock, Environment and Development (LEAD) Initiative, Food and Agriculture Organization, 2006) <ftp://ftp.fao.org/docrep/fao/010/a0701e/a0701e00.pdf>; see also, Joyce D’Silva and John Webster, The Meat Crisis: Developing More Sustainable and Ethical Production and Consumption (Routledge, 2017) (‘The Meat Crisis’). Note though that the issues with intensive meat production and consumption are contested, Ulrika Olausson, ‘“Stop Blaming the Cows!”: How Livestock Production Is Legitimized in Everyday Discourse on Facebook’ (2018) 12(1) Environmental Communication 28 (‘“Stop Blaming the Cows!”’).

48. See, eg, Mads Borup et al, ‘The Sociology of Expectations in Science and Technology’ (2006) 18(3–4) Technology Analysis & Strategic Management 285.

49. Neil Stephens and Martin Ruivenkamp, ‘Promise and Ontological Ambiguity in the In Vitro Meat Imagescape: From Laboratory Myotubes to the Cultured Burger’ (2016) 25(3) Science as Culture 327; Robert Magneson Chiles, ‘If They Come, We Will Build It: In Vitro Meat and the Discursive Struggle over Future Agrofood Expectations’ (2013) 30(4) Agriculture and Human Values 511 (‘If They Come, We Will Build It’).

50. See, eg, Neil Pollock and Robin Williams, ‘The Business of Expectations: How Promissory Organizations Shape Technology and Innovation’ (2010) 40(4) Social Studies of Science 525 (‘The Business of Expectations’).

51. See, eg, Sheila Jasanoff and Sang-Hyun Kim, ‘Sociotechnical Imaginaries and National Energy Policies’ (2013) 22(2) Science as Culture 189; Anthony M Levenda et al, ‘Regional Sociotechnical Imaginaries and the Governance of Energy Innovations’ (2019) 109 Futures 181; Kornelia Konrad and Carla Alvial Palavicino, ‘Evolving Patterns of Governance of, and by, Expectations: The Graphene Hype Wave’ in Diana Bowman, Elen Stokes and Arie Rip (eds), Embedding New Technologies into Society: A Regulatory, Ethical and Societal Perspective (Taylor & Francis, 1st ed, 2017) 187 <https://www.taylorfrancis.com/chapters/evolving-patterns-governance-expectations-graphenehype-wave-kornelia-konrad-carla-alvial-palavicino/e/10.1201/9781315379593-9>.

52. Food and Agriculture Organization, World Agriculture Towards 2030/2050: Prospects for Food, Nutrition, Agriculture and Major Commodity Groups (Interim Report, Food and Agriculture Organization of the United Nations, June 2006) 45 <http://www.fao.org/fileadmin/user_upload/esag/docs/Interim_report_AT2050web.pdf>.

53. International Agency for Research on Cancer, Red Meat and Processed Meat (World Health Organisation, 2018) vol 14 <https://publications.iarc.fr/Book-And-Report-Series/Iarc-Monographs-On-The-Identification-Of-Carcinogenic-Hazards-To-Humans/Red-Meat-And-Processed-Meat-2018>; EAT-Lancet Commission, Food in The Anthropocene: The EAT-Lancet Commission on Healthy Diets (The Lancet, 2019) <https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31788-4/fulltext>.

54. D’Silva and Webster (n 47); Richard Twine, ‘Revealing the “Animal-Industrial Complex”: A Concept & Method for Critical Animal Studies?’ (2012) 10(1) Journal for Critical Animal Studies 12 (‘Revealing the “Animal-Industrial Complex”’).

55. Nevertheless, see the Grey Power Combined NZ, submission to CFS1 (11 February 2020) 1 quoted below at footnote 90, stating that the submitters prefer vegetarian food because of the way animals are treated in intensive agriculture. By contrast in the US, both ecological sustainability and the ethics of using animal ethics for food have been central to policy debates and legal contestation. See, eg, USDA Food Safety and Inspection Service, USDA and FDA Joint Public Meeting on the Use of Cell Culture Technology to Develop Products Derived from Livestock and Poultry | Food Safety and Inspection Service (online), 23 October 2018 <http://www.fsis.usda.gov/news-events/events-meetings/usda-and-fda-joint-public-meeting-use-cell-culture-technology-develop>, which contains the transcripts from the public hearing attended by various interest groups including animal activists who were in support of cell-based animal material as a solution to intensive animal agriculture.

56. Isaac Cheah et al, ‘Drivers and Barriers toward Reducing Meat Consumption’ (2020) 149 Appetite 104636; Christopher Bryant and Julie Barnett, ‘Consumer Acceptance of Cultured Meat: A Systematic Review’ (2018) 143 Meat Science 8 (‘Consumer Acceptance of Cultured Meat’). Lacy-Nichols, Scrinis and Moodie (n 46) 6–7 found that, of the 16 novel meat analogue companies examined, 10 made reference to the ethical attributes of the product using terms such as ‘animal free’.

57. Josh Milburn, ‘Chewing Over In Vitro Meat: Animal Ethics, Cannibalism and Social Progress’ (2016) 22(3) Res Publica 249 (‘Chewing Over In Vitro Meat’); Lisa M Keefe, ‘#FakeMeat: How Big a Deal Will Animal Meat Analogs Ultimately Be?’ (2018) 8(3) Animal Frontiers 30 (‘#FakeMeat’); Marina Sucha Heidemann et al, ‘Uncoupling Meat From Animal Slaughter and Its Impacts on Human-Animal Relationships’ (2020) 11 Frontiers in Psychology 1824.

58. FSANZ, ‘Approval Report — Application A1186: Soy Leghemoglobin in Meat Analogue Products’ (n 5) 43.

59. A number of empirical studies of the contestation of analogues have been published recently and are forthcoming: see Sexton, Garnett and Lorimer (n 46) 60–1; Tai (n 15); Lacy-Nichols, Scrinis and Moodie (n 46); Jareb A Gleckel and Sherry F Colb, ‘The Meaning of Meat’ (2020) 26(1) Animal Law 75; Annika Lonkila and Minna Kaljonen, ‘Promises of Meat and Milk Alternatives: An Integrative Literature Review on Emergent Research Themes’ (2021) 38 Agriculture and Human Values 625 (‘Promises of Meat and Milk Alternatives’).

60. Note that safety is not the only long-standing concern about GM varieties and technologies, but it was a main concern in the submissions. Other concerns with GM relate to corporate consolidation, the accuracy of its environmental claims, and the access to, and usefulness of, GM varieties for lower-income farming communities. For a summary of the issues raised in Australia about the safety of GM, see Rosemary Polya, Genetically Modified Governance Issues (Research Paper No 17 2000–01, Australian Parliament, Science, Technology, Environment and Resources Group, 6 February 2001) prt 6 <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP17>; these issues are still part of the mainstream discourse about GM in Australia. See, eg, Rachel Clemons and Alison Porter, ‘Are You Eating Genetically Modified Food?’ CHOICE (online), 9 June 2017 <https://www.choice.com.au/food-and-drink/food-warnings-and-safety/food-safety/articles/are-you-eating-gm-food>; for analysis of the broader, global contestation regarding GM, see Mathew D Marques, Christine R Critchley and Jarrod Walshe, ‘Attitudes to Genetically Modified Food over Time: How Trust in Organizations and the Media Cycle Predict Support’ (2015) 24(5) Public Understanding of Science 601 (‘Attitudes to Genetically Modified Food over Time’); Andy Stirling and Sue Mayer, ‘Precautionary Approaches to the Appraisal of Risk: A Case Study of a Genetically Modified Crop’ (2000) 6(4) International Journal of Occupational and Environmental Health 296 (‘Precautionary Approaches to the Appraisal of Risk’); Marion Nestle, Safe Food: The Politics of Food Safety (University of California Press, 2010) ch 8 (‘Safe Food’).

61. See, eg, Friends of the Earth (FOE) Australia, CFS1, 2; FOE NZ CFS1 (11 February 2020) 2; GE Free NZ CFS1 (11 February 2020) 2; Grey Power, CFS1 (11 February 2020) 2; KerriKerri Organics, CFS1 (11 February 2020) 2; Oraora Retreat, CFS1 (10 February 2020) 2; Soil and Health Association NZ, CFS1 (13 February 2020) 1; FOE Australia and Gene Ethics, submission to the 2nd Call for Submissions (‘CFS2’) (17 September 2020) 3; GE Free NZ, CFS2 (17 September 2020) 3.

62. Nicole E Negowetti, ‘A Planetary Health Approach to the Labelling of Plant-Based Meat’ (2020) 75 Food and Drug Law Journal 142. See also, William Park, ‘Why Vegan Junk Food May Be Even Worse for Your Health’, BBC Future (online), 30 January 2020 <https://www.bbc.com/future/article/20200129-why-vegan-junk-food-may-be-even-worse-for-your-health>; Emalie Rosewarne and Clare Farrand, Salt Levels in Meat Alternatives in Australia (2010-2019) (Report, VicHealth Salt Partnership; The George Institute for Global Health; WHO Collaborating Centre on Population Salt Reduction, September 2019) <https://www.georgeinstitute.org/sites/default/files/meat_alternatives_key_findings_report.pdf>.

63. The problems with high ultra-processed food consumption are well-explored in public health literature. See, eg, Phillip Baker and Sharon Friel, ‘Food Systems Transformations, Ultra-Processed Food Markets and the Nutrition Transition in Asia’ (2016) 12(1) Globalization and Health 80; Carlos A Monteiro et al, ‘Ultra-Processed Products Are Becoming Dominant in the Global Food System’ (2013) 14(S2) Obesity Reviews 21.

64. Gyorgy Scrinis, ‘On the Ideology of Nutritionism’ (2008) 8(1) Gastronomica 39.

65. Michael Pollan, In Defence of Food: The Myth of Nutrition and the Pleasures of Eating (Penguin, 2008) (‘In Defence of Food’).

66. Gyorgy Scrinis, Nutritionism: The Science and Politics of Dietary Advice (Columbia University Press, 2013) (‘Nutritionism’).

67. See, eg, Amy McLennan, ‘The Rise of Nutritionism and Decline of Nutritional Health in Nauru’ (2020) 23(2) Food, Culture & Society 249.

68. Carlos Monteiro et al, Ultra-Processed Foods, Diet Quality and Health-Using the NOVA-Classification System (Report, Food and Agriculture Organization of the United Nations, 2019) <https://www.researchgate.net/profile/Geoffrey_Cannon/publication/334945695_FAO_Ultra-processed_foods_diet_quality_and_health_using_the_NOVA_classification_system/links/5d45a462a6fdcc370a79b7aa/FAO-Ultra-processed-foods-diet-quality-and-health-using-the-NOVA-classification-system.pdf>.

69. Carlos A Monteiro et al, ‘Ultra-Processed Foods: What They Are and How to Identify Them’ (2019) 22(5) Public Health Nutrition 936, 937–8 (‘Ultra-Processed Foods’).

70. See, eg, Bernard Srour et al, ‘Ultra-Processed Food Intake and Risk of Cardiovascular Disease: Prospective Cohort Study (NutriNet-Santé)’ (2019) 365 British Medical Journal l1451 (‘Ultra-Processed Food Intake and Risk of Cardiovascular Disease’); Leonie Elizabeth et al, ‘Ultra-Processed Foods and Health Outcomes: A Narrative Review’ (2020) 12(7) Nutrients 1955 (‘Ultra-Processed Foods and Health Outcomes’), which reviewed 47 studies on the association between UPF and health outcomes. Of these, 37 studies found at least one adverse health outcome associated with UPF consumption and no studies identified positive health outcomes.

71. Priscila P Machado et al, ‘Ultra-Processed Foods and Recommended Intake Levels of Nutrients Linked to Non-Communicable Diseases in Australia: Evidence from a Nationally Representative Cross-Sectional Study’ (2019) 9(8) British Medical Journal Open 029544 (‘Ultra-Processed Foods and Recommended Intake Levels of Nutrients Linked to Non-Communicable Diseases in Australia’); Stephanie R Partridge et al, ‘Junk Food on Demand: A Cross-Sectional Analysis of the Nutritional Quality of Popular Online Food Delivery Outlets in Australia and New Zealand’ (2020) 12(10) Nutrients 3107 (‘Junk Food on Demand’); Sheree A Spiteri, Dana Lee Olstad and Julie L Woods, ‘Nutritional Quality of New Food Products Released into the Australian Retail Food Market in 2015 — Is the Food Industry Part of the Solution?’ (2018) 18(1) BMC Public Health 222.

72. Gilly A Hendrie et al, ‘Understanding the Variation within a Dietary Guideline Index Score to Identify the Priority Food Group Targets for Improving Diet Quality across Population Subgroups’ (2021) 18(2) International Journal of Environmental Research and Public Health 378.

73. See, eg, Deborah A Lupton, ‘Lay Discourses and Beliefs Related to Food Risks: An Australian Perspective’ (2005) 27(4) Sociology of Health & Illness 448 (‘Lay Discourses and Beliefs Related to Food Risks’).

74. See, eg, Guy Cook, Genetically Modified Language: The Discourse of Arguments for GM Crops and Food (Routledge, 2004) 7 (‘Genetically Modified Language’).

75. Private VD, Submission to CFS1 (12 February 2020) 1 (errors have been corrected in this quote).

76. See, eg, Michael J Gibney, ‘Ultra-Processed Foods: Definitions and Policy Issues’ (2019) 3(2) Current Developments in Nutrition nzy077 (‘Ultra-Processed Foods’).

77. Anna Herforth et al, ‘A Global Review of Food-Based Dietary Guidelines’ (2019) 10(4) Advances in Nutrition 590; Parker and Johnson, ‘Sustainable Health Food Choices’ (n 11); Negowetti (n 62).

78. See, eg, Hendrie et al (n 72).

79. New Zealand Ministry of Health, Eating and Activity Guidelines for New Zealand Adults (Report, 2020) 23 <https://www.health.govt.nz/system/files/documents/publications/eating-activity-guidelines-new-zealand-adults-updated-2020-jul21.pdf>.

80. Sue Klapholz, ‘Our Commitment to Nutrition and Health: Sodium and the Impossible Burger’, Impossible Foods (Blog Post, 20 December 2019) <https://impossiblefoods.com/blog/sodium-and-the-impossible-burger>.

81. Emily Gelsomin, ‘Impossible and Beyond: How Healthy are These Meatless Burgers?’ Harvard Health Blog (Blog Post, 15 August 2019) <https://www.health.harvard.edu/blog/impossible-and-beyond-how-healthy-are-these-meatless-burgers-2019081517448> (‘Impossible and Beyond’).

82. Beef and Lamb NZ, submission to CFS1 (14 February 2020) 1.

83. Anna Henderson, ‘Food Fight over “traitorous Protein” in Meat Fridge’, ABC News (online), 22 June 2018 <https://www.abc.net.au/news/2018-06-22/food-fight-over-vegetarian-product-in-meat-fridge/9899404>; Marty McCarthy and Matt Brann, ‘Cattle Industry Looks to Defend “meat” Label from Lab-Grown and Plant-Based Products’, ABC Rural (online), 7 May 2018 <http://www.abc.net.au/news/rural/2018-05-07/australian-cattle-lobby-group-considers-calling-for-meat-change/9728928>; this perspective was also observed in, Lacy-Nichols, Scrinis and Moodie (n 46).

84. Grey Power Combined NZ, submission to CFS1 (11 February 2020) 1.

85. As Lacy-Nichols, Scrinis and Moodie (n 46) point out, however, the lead industry group Meat & Livestock Australia have, at least initially, framed meat analogues as non-threatening because they are largely non-disruptive, inferior and synthetic.

86. KerriKerri Organics, submission to CFS1 (11 February 2020) 2.

87. See, eg, Lucy Barbour, ‘Nationals Push for Ban on Plant-Based, Alternative Products Being Called “Milk”, “Meat”, “Seafood”’, ABC News (online), 15 September 2019 <https://www.abc.net.au/news/2019-09-15/push-to-ban-milk-meat-seafood-labels-on-plant-based-produce/11513754>; McCarthy and Brann (n 83); ‘Marshall’s Tough Talk on Food Labelling’, NSW Nationals (online), 28 October 2019 <https://www.nswnationals.org.au/marshalls-tough-talk-on-food-labelling/>; Shan Goodwin, ‘Let’s Not Mince Words, It’s Everything but Real Beef’, Farm Online (online), 30 June 2018 <http://www.farmonline.com.au/story/5497586/lets-not-mince-words-its-everything-but-real-beef/>.

88. See, eg, Jonah Engel Bromwich and Sanam Yar, ‘The Fake Meat War: What’s Milk Now? Vegan Food Companies Are Fed up with an Onslaught of pro-Meat, pro-Dairy Laws’, The New York Times (online), 25 July 2019 <https://www.nytimes.com/2019/07/25/style/plant-based-meat-law.html>; Negowetti (n 62). The most recent judgment is: Turtle Island Foods SPC v Michael G Strain in his official capacity as the Commissioner of Agriculture and Forestry (MD, No. 20-00674-74-BAJ-EWD, 28 March 2022). This case concerned Louisiana’s Truth in Labelling of Food Products Act, Louisiana Rev. Stat. §§ 3:4741–6. The Court found that the legislation was unconstitutional because it restricted free speech. The law prohibited the use of terms like ‘burger’ and ‘sausage’ on meat and dairy analogues whether qualified with terms like ‘plant-based’ or not. The Court emphasised that the Defendant did not show why less restrictive means would not achieve the same goal of preventing consumer confusion such as a disclaimer eg ‘does not contain animal products’.

Cell-cultured new meat analogues have been a particular focus following the filing of conflicting petitions with the US Department of Agriculture and the US Food and Drug Administration, which led to public hearings and a joint agreement in 2019 about how federal agencies should co-regulate these meat analogues: United States Department of Agriculture (USDA) and Food and Drug Administration (FDA), Formal Agreement Between FDA and USDA Regarding Oversight of Human Food Produced Using Animal Cell Technology Derived from Cell Lines of USDA-Amenable Species (7 March 2019) <https://www.fda.gov/food/domestic-interagency-agreements-food/formal-agreement-between-fda-and-usda-regarding-oversight-human-food-produced-using-animal-cell>.

89. Dairy Pride Act, S Res 792, 116th Congress (2019); Real Meat Act, HR Res 4881, 116th Congress (2019). These laws are however unlikely to survive constitutional challenges (on the basis of commercial free speech): Eryn Terry, ‘The Regulation of Commercial Speech: Can Alternative Meat Companies Have Their Beef and Speak It Too?’ (2020) 23(1) Vanderbilt Journal of Entertainment & Technology Law 223 (‘The Regulation of Commercial Speech’).

90. Verband Sozialer Wettbewerb eV v TofuTown.com Gmbh (C-422/16) [2017] CJEU 458.

91. European Parliament, Amendment 171- Proposal for a regulation- article 1 para 1, point 32, Regulation (EU) No. 1308/2013 Annex VII- Part II- Point 19-point C, Doc No A8-0198/2019. These proposed amendments passed the European Parliament in October 2020, and are now awaiting approval by the EU Council of Ministers.

92. See, eg, Negowetti (n 62).

93. EAT-Lancet Commission (n 53).

94. Katherine Sievert et al, ‘Understanding the Political Challenge of Red and Processed Meat Reduction for Healthy and Sustainable Food Systems: A Narrative Review of the Literature’ (2020) 10(12) International Journal of Health Policy and Management 1 (‘Understanding the Political Challenge of Red and Processed Meat Reduction for Healthy and Sustainable Food Systems’); Parke Wilde et al, ‘Legal Feasibility of US Government Policies to Reduce Cancer Risk by Reducing Intake of Processed Meat’ (2019) 97(2) The Milbank Quarterly 420; Frédéric Leroy et al, ‘Meat in the Post-Truth Era: Mass Media Discourses on Health and Disease in the Attention Economy’ (2018) 125 Appetite 345 (‘Meat in the Post-Truth Era’).

95. Dianne Mayberry et al, ‘Pathways to Carbon-Neutrality for the Australian Red Meat Sector’ (2019) 175 Agricultural Systems 13; Tony Weis and Rebecca Ellis, ‘Animal Functionality and Interspecies Relations in Regenerative Agriculture: Considering Necessity and the Possibilities of Non-Violence’ in Jessica Duncan, Michael Carolan and Johannes S C Wiskerke (eds), Routledge Handbook of Sustainable and Regenerative Food Systems (Routledge, 2020) 141, 148, where the authors argue ‘The recognition that some animal functions in agriculture might be necessary, or that heritage breeds have a right to existence after long histories of domestication, does not mean that the goal of enhancing animal autonomy and reducing exploitation as far as possible need be abandoned’.

96. Brodie Evans and Hope Johnson, ‘Contesting and Reinforcing the future of “meat” through problematization: Analysing the discourses in regulatory debates around animal cell-cultured meat’ (2021) 127 Geoforum 81, 87.

97. Philip H Howard, David Goodman and Michael K Goodman, Concentration and Power in the Food System: Who Controls What We Eat? (Bloomsbury Academic, 2016) (‘Concentration and Power in the Food System’); Sophia Murphy, ‘Globalization and Corporate Concentration in the Food and Agriculture Sector’ (2008) 51(4) Development 527; Philip McMichael, ‘The Land Grab and Corporate Food Regime Restructuring’ (2012) 39(3–4) The Journal of Peasant Studies 681.

98. Guthman and Biltekoff (n 46); Michael J Mouat and Russell Prince, ‘Cultured Meat and Cowless Milk: On Making Markets for Animal-Free Food’ (2018) 11(4) Journal of Cultural Economy 315 (‘Cultured Meat and Cowless Milk’); Chiles (n 49); Nathan Clay et al, ‘Palatable Disruption: The Politics of Plant Milk’ (2020) 37(4) Agriculture and Human Values 945 (‘Palatable Disruption’); Joanna Goven and Vincenzo Pavone, ‘The Bioeconomy as Political Project: A Polanyian Analysis’ (2015) 40(3) Science, Technology, & Human Values 302 (‘The Bioeconomy as Political Project’); Sophia Murphy, ‘Op-Ed: We Don’t Need a “Moonshot” for Faux Burgers — We Need To Hold “Big Meat” Accountable’, Civil Eats (5 May 2021) <https://civileats.com/2021/05/05/opinion-we-dont-need-a-moonshot-for-faux-burgers-we-need-to-hold-big-meat-accountable/>.

99. Note that under s 18(2)(c), FSANZ must have regard to the ‘desirability of an efficient and internationally competitive food industry’.

100. Alanna Linn, ‘Raw Milk Is Always Risky: Stabilising the Danger of Raw Milk in Australian Food Safety Regulation’ (2019) 21(5–6) Health, Risk & Society 304 (‘Raw Milk Is Always Risky’); Kristen Lyons and Naomi Smith, ‘Governing with Ignorance: Understanding the Australian Food Regulator’s Response to Nano Food’ (2018) 12(1) NanoEthics 27 (‘Governing with Ignorance’); Paula O’Brien, ‘The Contest over Valuable Label Real Estate: Public Health Reforms to the Laws on Alcohol Beverage Labelling in Australia’ (2014) 37(2) University of New South Wales Law Journal 565, 576 (‘The Contest over Valuable Label Real Estate’).

101. Erik Millstone and Patrick Van Zwanenberg, ‘The Evolution of Food Safety Policy-Making Institutions in the UK, EU and Codex Alimentarius’ (2002) 36(6) Social Policy & Administration 593; Martha McMahon, ‘What Food Is to Be Kept Safe and for Whom? Food-Safety Governance in an Unsafe Food System’ (2013) 2(4) Laws 1 (‘What Food Is to Be Kept Safe and for Whom?’); Patrick Baur, Christy Getz and Jennifer Sowerwine, ‘Contradictions, Consequences and the Human Toll of Food Safety Culture’ (2017) 34(3) Agriculture and Human Values 713.

102. These food laws follow a uniform model in accordance with an intergovernmental agreement to establish ‘substantially equivalent’ food laws: Food Regulation Agreement, signed November 2000, amended 6th December 2002, 3rd July 2008 (amendments entered into force 6 July 2010) Appendix A and B ‘Model Food Provisions’. See Food Act 2001 (ACT); Food Regulations 2002 (ACT); Food Act 2003 (NSW); Food Regulation 2015 (NSW); Food Act (NT); Food Act 2006 (Qld); Food Production (Safety) Act 2000 (Qld); Food Production (Safety) Regulation 2014 (Qld); Food Act 2001 (Sa); Food Regulations 2002 (SA); Food Act 2003 (Tas); Food Regulations 2012 (Tas); Food Act 1984 (Vic); Food Act 2008 (WA); Food Regulations 2009 (WA). The legislation in each jurisdiction sets out various offences and confers powers on state and territory authorities to monitor compliance and take enforcement action. While state regulators could enforce these laws, local governments customarily have the primary responsibility for enforcement and compliance. These various authorities receive complaints from individuals, carry out inspections of foods or food-related facilities, grant food business licenses to operate, and take enforcement action for violations of the code.

103. The Australia New Zealand Food Standards Code (‘The Code’) 1.1.1–10(2)–(7).

104. The Code 1.1.1–10(8),(9), 1.1.1–13. See also Food Standards Australia New Zealand Act 1991 s 16(1) (‘FSANZ Act’), which also includes various other permitted functions for the Code. Importantly the Code also sets standards as to the conditions in which food must be produced and sold to ensure food safety (good primary production and manufacturing process requirements), which we do not consider in this paper.

105. FSANZ Act ss 55, 113. The process is set out in FSANZ Act ss 54–79.

106. The Code 1.1.1–10(5) and (6). Other categories that are prohibited unless specifically named in the Code include a prohibited plant or fungus; food that has been irradiated, kava or substances derived from kava; raw apricot kernels; substances with detectable amounts of an agvet chemical or a metabolite or degradation product of an agvet chemical (note that certain maximum residual limits are prescribed by the Code); food containing above certain concentrations of caffeine.

107. FSANZ Act ss 84–94. The Forum is comprised of ten Ministers from relevant portfolios, including health and agriculture and it makes decisions by consensus or, failing that, by a majority vote. Provided the Ministerial Forum accepts (or does not seek further review of) the proposed change, FSANZ gazettes the new or amended standard as a legislative instrument. FSANZ can also initiate reviews or can be requested to do so by the Forum.

108. FSANZ Act s 22. Civil society organisation have, however, criticised FSANZ for making it more difficult for them to apply for the development or variation of food standards than for businesses because businesses can pay to have reviews expedited (which would generally be a tax deductible business expense). Civil society groups however lack the resources to do so.

109. Originally the distinction between LegH Prep and soy leghemoglobin was unclear in FSANZ’s assessment, but FSANZ later clarified the distinction FSANZ, ‘Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products’ (n 5) 38.

110. Under FSANZ Act s 21, FSANZ will consider whether to accept or reject the application having regard to whether the application meets the statutory standards, which include requirements such as that the applications be written and contain required information. As indicated, on receiving the application, FSANZ also considers whether the ingredient or food raises an issue that would require a variation of the Code ie whether it is something that falls within one of the definitions requiring pre-approval.

111. FSANZ declined to separately assess soy leghemoglobin as a flavouring and colouring agent, that is a food additive, since it was already assessing it as a GM food and a nutritive substance. This decision was critiqued by eg SA Health, CFS2, 1. See also, Qld Health, CFS1 (14 February 2020) 2.

It is a decision that also differs from the US Food and Drug Administration’s focus on soy leghemoglobin preparation as a food additive to ‘optimize flavour in ground beef analogue products’: Food and Drug Administration (FDA), GRAS Notice No. GRN 000737 (23 July 2018) 1 <https://www.fda.gov/media/116243/download>. However, FSANZ justified its decision to not assess soy leghemoglobin as a food additive on the basis that it would not alter their assessment, as they would not have to consider any additional or different risks: FSANZ, ‘Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products’ (n 5) 13, 32.

112. SA Health, CFS1 (February 2020) 1; DHHS, CFS1 (14 February 2020) 2.

113. FSANZ Act s 18(1). See also, FSANZ’s position statement on how it applies s 18 core objectives: FSANZ, Principles Statement on Public Health and Safety (2014) <https://www.foodstandards.gov.au/about/Documents/Principlestatementonpublchealthandssafety.pdf>.

114. In relation to the cost-benefit analysis, FSANZ must have regard to: (a) ‘whether costs that would arise from a food regulatory measure developed or varied as a result of the application outweigh the direct and indirect benefits to the community, Government or industry that would arise from the development or variation of the food regulatory measure’; and (b) ‘whether other measures would be more cost-effective than a food regulator measure developed or varied as a result of the application’: FSANZ Act s 29(2).

115. FSANZ Act s 18(2).

116. The Code 1.5.2–2. Like novel foods, a product is subject to pre-market approval under Standard 1.5.2 if it was produced using gene technologies or if a component of it was produced using such technologies; unless the genetically modified component has already received approval from FSANZ.

117. Ibid.

118. Note that meat analogues created using gene editing such as CRISPR do not satisfy this definition, and this creates further problems for public trust in this area: Karinne Ludlow, ‘Regulation of Genome Editing in Plant Biotechnology: Australia’ in Hans-Georg Dederer and David Hamburger (eds), Regulation of Genome Editing in Plant Biotechnology: A Comparative Analysis of Regulatory Frameworks of Selected Countries and the EU (Springer International Publishing, 2019) 63 <https://doi.org/10.1007/978-3-030-17119-3_3> (‘Regulation of Genome Editing in Plant Biotechnology’). We do not further discuss gene editing in this paper as FSANZ have been reviewing this standard and consulting with stakeholders since 2018, and have declared an intention to propose a variation to the Code with the aim of better accommodating ‘existing and emerging genetic technologies’ in a manner that is ‘commensurate with the risk they pose’: FSANZ, Final Report: Review of Food Derived Using New Breeding Techniques (Final report, Food Standards Australia and New Zealand, December 2019) <https://www.foodstandards.gov.au/consumer/gmfood/Documents/NBTFinalreport.pdf>.

119. As mentioned at note 32, without the use of GM technologies, Impossible would have to grow or purchase soy (not the bean, the actual root nodules) and harvest and refine the molecules required, which would be neither economically nor practically possible at scale.

120. The broad process of genetically modifying yeast and then fermenting it to produce a specific molecule is not new in food processing.

Genetically modified pista pichoria is commonly used to produce proteins for research, the manufacture of pharmaceuticals and the creation of enzymes for industrial brewing and baking.

121. See, eg, FSANZ, Call for Submissions — Application A1186 - Soy Leghemoglobin in Meat Analogue Products (First Call for Submissions No 106–19, 20 December 2019) 8–9 where FSANZ details the evidence of safety focuses on potential allergenicity and toxicity of the yeast and of the novel protein. See also, FSANZ, ‘Approval Report — Application A1186: Soy Leghemoglobin in Meat Analogue Products’ (n 5) 29–30.

122. FSANZ, ‘Call for Submissions- Application A1186 — Soy Leghemoglobin in Meat Analogue Products’ (n 121) 8–9.

123. Ibid 12.

124. Rachel Z Fraser et al, ‘Safety Evaluation of Soy Leghemoglobin Protein Preparation Derived From Pichia Pastoris, Intended for Use as a Flavour Catalyst in Plant-Based Meat’ (2018) 37(3) International Journal of Toxicology 241.

125. Ibid.

126. See, eg, Private LG, submission to CFS1 (13 February 2020) 2.

127. Private MB, submission to CFSI, 42. Another concern, raised by the Victorian Department of Health and Human Services, the Victorian Department of Jobs, Precincts and Regions, and PrimeSafe (the Victorian meat regulator), submission to CFS2 (17 September 2020) 2, was that the study used by FSANZ for the risk and dietary exposure assessment concerned a different yeast strain to the application.

128. Private PSGR, submission to CFS1 (February 2020) 6.

129. NSW Food Authority, submission to CFS1, 4.

130. Center for Food Safety Combined Reply Brief (Center for Food Safety v United States Food and Drug Administration et al and Impossible Foods Inc) (On Petition for Review from the United States Environmental Protection Agency No. 20-70747, US Court of Appeals For the Ninth Circuit, 28 January 2021) <https://www.centerforfoodsafety.org/files/2021-01-28--ecf-45-cfs-combined-reply-brief_82674.pdf>.

131. Center for Food Safety v US Food & Drug Administration (Unpublished Opinion No. 20-70747, US Court of Appeals for the Ninth Circuit, 3 May 2021).

132. This reflects divisions between approaches to new technologies and the law in a wide range of areas beyond food. See, eg, Andy Stirling and David Gee, ‘Science, Precaution, and Practice’ (2002) 117(6) Public Health Reports 521; Sheila Jasanoff, Risk Management and Political Culture (Russell Sage Foundation, 1986).

133. See, eg, PSGR, submission to CFS1 (February 2020) 6; FOE Australia, CFS1, 1; KerriKerri Organics, CFS1 (11 February 2020) 1; AFSA, submission to CFS1 (14 February 2020) 4.

134. Victoria Department of Health and Human Services and Victorian Department of Jobs, Precincts and Regions and PrimeSafe, submission to CFS2 (17 September 2020) 2.

135. The Code 1.1.2–11, 1.3.1–2, sch 14.

136. The Code 1.1.2–12, 1.3.2–3.

137. The Code 1.1.2–13, 1.3.3–3.

138. Impossible Foods Inc. (n 3) 4.

139. ‘Methods and Compositions for Affecting the Flavor and Aroma Profile of Consumables’United States US9700067B2, filed on 10 July 2015 (Issued on 11 July 2017) <https://patents.google.com/patent/US9700067B2/en>.

140. Impossible application (n 3) p 4.

141. Amy K Proulx and Manju B Reddy, ‘Iron Bioavailability of Hemoglobin from Soy Root Nodules Using a Caco-2 Cell Culture Model’ (2006) 54(4) Journal of Agricultural and Food Chemistry 1518.

142. Impossible, ‘Impossible Foods: Meat made from plants - A better way to make meat- Happy Taste Buds. Happy Planet’ (2021) <https://impossiblefoods.com/cn-en> (‘Impossible Foods’). See also, Impossible Foods Inc, ‘Impossible Products: Plant-Based Burger, Pork & Sausage’ (2021) <https://impossiblefoods.com/food?__hstc=126476754.29fee331df837435d31360bf45c90c44.1612051200291.1612051200292.1612051200293.1&__hssc=126476754.1.1612051200294&__hsfp=2839138730> where the company explains ‘We discovered what makes meat taste like meat. Then we figured out how to make meat from plants. Delicious and better for you and the planet’.

143. While the precise amount of haem-iron in meat is context-dependent, an estimated 72–87 per cent of the iron in mammalian (‘red’) meat is haem iron, while (‘white’) meat from birds and fish contain far less haem iron: G Lombardi-Boccia, B Martinez-Dominguez and A Aguzzi, ‘Total Heme and Non-Heme Iron in Raw and Cooked Meats’ (2002) 67(5) Journal of Food Science 1738.

144. Non-haem iron absorbs differently and its absorption is influenced by complex, contextual factors: Leif Hallberg, ‘Iron Requirements and Bioavailability of Dietary Iron’ in J Mauron (ed), Nutritional Adequacy, Nutrient Availability and Needs: Nestlé Nutrition Research Symposium, Vevey, September 14–15, 1982 (Birkhäuser, 1983) 223.

145. Australia and New Zealand Ministerial Forum on Food Regulation, Policy Guideline for the Fortification of Foods with Vitamins and Minerals (Amended 23 October 2009) (28 May 2004) <https://foodregulation.gov.au/internet/fr/publishing.nsf/Content/publication-Policy-Guideline-for-the-Fortification-of-Foods-with-Vitamins-and-Minerals>; Australia and New Zealand Ministerial Forum on Food Regulation, Policy Clarification Statement to Be Read with the Policy Guideline (Policy Guideline for the Fortification of Food with Vitamins and Minerals) (20 November 2015) <https://foodregulation.gov.au/internet/fr/publishing.nsf/Content/publication-Policy-Guideline-for-the-Fortification-of-Foods-with-Vitamins-and-Minerals>.

146. Australia and New Zealand Ministerial Forum on Food Regulation, ‘Policy Guideline for the Fortification of Foods with Vitamins and Minerals (Amended 23 October 2009)’ (n 145) 3. Note, this is referring to purely voluntary fortification of products by food producers, and not government-mandated or encouraged fortification.

147. The Code Schedule 17–4 states ‘no less than 12 per cent of the energy value of the food is derived from protein, and the food contains 5 g protein per serve of the food’. It also sets out a range of other permitted uses of vitamins and minerals to fortify ‘Analogues derived from legumes’ (covering dairy beverages, meat, yoghurt and dairy desserts, ice cream and cheese), and ‘Analogues derived from cereals, nuts, seeds, or a combination of those ingredients’. This is presumably on the theory that meat analogues are primarily used as an alternative source of protein in the diet.

148. Australia and New Zealand Ministerial Forum on Food Regulation, ‘Policy Guideline for the Fortification of Foods with Vitamins and Minerals (Amended 23 October 2009)’ (n 145) 3.

149. Australia and New Zealand Ministerial Forum on Food Regulation, ‘Policy Clarification Statement to Be Read with the Policy Guideline (Policy Guideline for the Fortification of Food with Vitamins and Minerals)’ (n 145) 1.

150. FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 43.

151. Ibid 5. FSANZ went on to state at ibid 43 ‘The use of a form of iron closer to that found in the traditional counterpart food more closely upholds the principle of nutritional equivalence’.

152. Impossible Foods Inc (n 142).

153. For instance, Beef & Lamb NZ, submission to CFS1 (14 February 2020) 1–2 stated that ‘The FSANZ assessment has looked at dietary iron in isolation of the product, which means it overlooks the value of the entire food matrix, and what else the applicant’s products contribute to the food supply and diets of New Zealanders … If FSANZ is to consider the impact of overall nutritional status of New Zealanders from imported foods to New Zealand, it needs to look at the entire food matrices of foods’. While the Soil and Health Association New Zealand, CFS1 (13 February 2020) 3 submitted ‘Soil and Health consider this current application does not adequately reflect the obligations in law of the FSANZ to protect health. It is apparent that the scope of consideration is overly narrow and as a result cannot protect public health as consumers will be exposed to a fully formulated product’.

154. US Department of Agriculture, ‘Food Matrix’, NAL Agricultural Thesaurus and Glossary <https://agclass.nal.usda.gov/mtwdk.exe?k=glossary&l=60&w=6491&s=5&t=2>.

155. FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 20, 36.

156. The Code Standard 1.2.7, schs 4, 17. There is no nutrient profile score requirement in contrast with health claims discussed immediately below.

157. The Code sch 4.

158. This phenomenon has been observed and reported on by a large body of empirical work for decades. See, eg, J Craig Andrews, Richard G Netemeyer and Scot Burton, ‘Consumer Generalization of Nutrient Content Claims in Advertising’ (1998) 62(4) Journal of Marketing 62; Marcia Centurión, Leandro Machín and Gastón Ares, ‘Relative Impact of Nutritional Warnings and Other Label Features on Cereal Bar Healthfulness Evaluations’ (2019) 51(7) Journal of Nutrition Education and Behavior 850. As part of broader critiques of the ‘nutritionism’ ideology and its impacts on food law and policy discussed in Part IIC(b), food policy scholarship has critiqued the ways in which nutritionism and food law allows food companies to emphasis the inclusion of particular nutrients and their potential health benefits on the label of ultra-processed and processed foods, while other features of the product (salt, fats, sugars) are not visible nor is information about how such products compares to whole foods. Most notably, Marion Nestle, Food Politics: How the Food Industry Influences Nutrition and Health (University of California Press, 1st ed, 2013); Scrinis (n 66).

159. This bias is so strong that even in jurisdictions where warning labels (such as stop signs) are placed on particular foods by regulators, preliminary evidence suggests it does not reverse ‘the health halo effect’ of nutrient content claims: Fernanda Mediano Stoltze et al, ‘Impact of Warning Labels on Reducing Health Halo Effects of Nutrient Content Claims on Breakfast Cereal Packages: A Mixed-Measures Experiment’ (2021) 163 Appetite 105229.

160. See, eg, Catherine Fernan, Jonathon P Schuldt and Jeff Niederdeppe, ‘Health Halo Effects from Product Titles and Nutrient Content Claims in the Context of “Protein” Bars’ (2018) 33(12) Health Communication 1425, which found that nutrient product claims and product titles that inferred high protein influenced the perceived healthfulness of the bar. Even if the bar warned that it was high in sugar, this did not counteract the effect.

161. The Code 1.2.7. The Code distinguishes two types of claims, high level health claims (which relate to a serious disease or biomarker of a serious disease, like cancer or heart disease) and general health claims (other claims relating to health effect) with the former more strictly regulated. See also, comments from submissions at note 164.

162. In particular, they must have a certain Nutrient Profile Score Criterion (‘NPSC’): The Code 1.2.7–18.

163. These are set out in The Code sch 4. In accordance with Schedule 4, a food must contain a certain average quantity of a nutrient or other quality (eg vitamins, minerals, fibre etc) or lack a particular nutrient (eg carbohydrates) before it can make particular health claims (eg ‘improves lactose digestion’). Only those claims listed in Schedule 4 can be made and certain conditions are set out for when each claim can be made.

164. This has been widely observed in relation to Australia and New Zealand’s health-star rating system (based on the same nutrient profile scoring system). See, eg, Mark Lawrence et al, ‘The Health Star Rating system — is its reductionist (nutrient) approach a benefit or risk for tackling dietary risk factors?’ (2019) 29(1) Public Health Research and Practice Article number: e29119061–5.

165. The Code sch 4.

166. John Peloza, Christine Ye and William J Montford, ‘When Companies Do Good, Are Their Products Good for You? How Corporate Social Responsibility Creates a Health Halo’ (2015) 34(1) Journal of Public Policy & Marketing 19; Elizabeth A Minton and T Bettina Cornwell, ‘The Cause Cue Effect: Cause-Related Marketing and Consumer Health Perceptions’ (2016) 50(2) Journal of Consumer Affairs 372.

167. Negowetti (n 62).

168. Alexandra Jones et al, ‘Front-of-Pack Nutrition Labelling to Promote Healthier Diets: Current Practice and Opportunities to Strengthen Regulation Worldwide’ (2019) 4(6) BMJ Global Health e001882; Sarah Dickie, Julie L Woods and Mark Lawrence, ‘Analysing the Use of the Australian Health Star Rating System by Level of Food Processing’ (2018) 15(1) International Journal of Behavioral Nutrition and Physical Activity 128; Belinda Reeve and Lawrence O Gostin, ‘“Big” Food, Tobacco, and Alcohol: Reducing Industry Influence on Noncommunicable Disease Prevention Laws and Policies’ (2019) 8(7) International Journal of Health Policy and Management 450; Mark Andrew Lawrence, Christina Mary Pollard and Tarun Stephen Weeramanthri, ‘Positioning Food Standards Programmes to Protect Public Health: Current Performance, Future Opportunities and Necessary Reforms’ (2019) 22(5) Public Health Nutrition 912.

169. The Code 1.1.1–10 requires that foods for sale be neither a ‘novel food’ nor contain a substance in the food that is ‘novel’ unless (a) expressly permitted by FSANZ and (b) compliant with conditions FSANZ imposes on its production or sale.

170. Australia’s regulation of novel food dates back to 1996. See FSANZ, ‘History of Novel Foods Standard’, Food Standards Australia New Zealand (Web Page, 2019) <https://www.foodstandards.gov.au/industry/novel/novelhistory/Pages/default.aspx>. How countries that are members of the World Trade Organization assess, and potentially restrict, the sale of novel foods is limited by their trade obligations. Specifically, under the Marrakesh Agreement establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 493 (entered into force 1 January 1995) annex 1A (SPS Agreement) art 2.2, a member state can only restrict the sale of foods to the extent ‘necessary to protect human, animal or plant life or health’ and provided such restrictions are ‘based on scientific principles’ and are not ‘maintained without sufficient scientific evidence’. Restrictions placed by the EU on the importation of GM were successfully challenged under these provisions on the grounds that the restrictions lacked sufficient scientific evidence, as the restrictions were based on a precautionary approach: WTO Panel in European Communities- Measures Affecting the Approval and Marketing of Biotech Products, WTO Doc WT/Ds291/R/Corr.1; WT/DS292/R/Cprr/1’ WT/DS293/R/Corr.1 (29 September 2006).

171. The Code Standard 1.5.1 categorises novel foods as ‘non-traditional’ foods, or substances derived from food, and which require a public health and safety assessment. The Code 1.1.2–8 defines ‘novel food’ and ‘non-traditional food’.

172. Ibid.

173. For the Terms of Reference see: FSANZ, ‘Advisory Committee Novel Foods — Terms of Reference’, Food Standards Australia New Zealand (2021) <https://www.foodstandards.gov.au/industry/novel/novelcommittee/Pages/default.aspx>; The Committee publishes a record of its opinions at FSANZ, ‘Novel Food — Record of Views Formed in Response to Inquiries’, Food Standards Australia New Zealand (11 March 2021) <https://www.foodstandards.gov.au/industry/novel/novelrecs/Pages/default.aspx>.

174. He et al (n 19).

175. Beyond Meat, ‘Frequently Asked Questions’, Beyond Meat - Go Beyond® (2020) <https://www.beyondmeat.com/faqs/>.

176. For example, recently, DSM Nutritional Products applied for relevant variations to the Code to permit rapeseed protein isolate that will be used in a variety of ways in different foods to replace animal protein. In its application, DSM identified the resource-intensive nature of animal agriculture and positioned its protein as one of the new ‘promising protein sources’: DSM Nutritional Products Asia Pacific, Application to Amend the Australia New Zealand Food Standards Code (the Code) to Permit the Use of Rapeseed Protein Isolate as a Novel Food (No A1175, FSANZ, 19 February 2019) 7 <https://www.foodstandards.gov.au/code/applications/Documents/A1175Application.pdf>. The application, call for submissions, approval report and associated documents are all available at: FSANZ, ‘A1175 — Rapeseed Protein Isolate as a Novel Food’, Food Standards Australia New Zealand (April 2021) <https://www.foodstandards.gov.au/code/applications/Pages/A1175.aspx>. The application was approved by FSANZ on 1 December 2020 and notified to the Australia and New Zealand Ministerial Forum on Food Regulation on 15 December 2020 (the same day as the Impossible application): FSANZ, Approval Report- Application A1175: Rapeseed Protein Isolate as a Novel Food (No [145–20], Food Standards Australia and New Zealand, 15 December 2020) <https://www.foodstandards.gov.au/code/applications/Pages/A1175.aspx>.

177. See FSANZ, Novel Food - Record of Views Formed in Response to Inquiries (n 173). Note that page numbers change every time document is updated, and that no date is provided for the Quorn application, but Quorn entered the Australian marketplace around 2010. FSANZ’s acquiescence to Quorn without further review was questioned after reports of adverse reactions in 2011: Joe Lederman and Charles Fisher, ‘Is FSANZ’s Approach to QuornTM (Mycoprotein) Consistent with Previous FSANZ Policy?’ FoodLegal (Web Page, March 2011) <https://www.foodlegal.com.au/inhouse/document/679>. FSANZ added a statement to its website about the safety of the product: FSANZ, ‘Quorn (Mycoprotein)’, Food Standards Australia New Zealand (Web Page, December 2011) <https://www.foodstandards.gov.au/consumer/generalissues/quorn/Pages/default.aspx>.

178. FSANZ, Novel Food — Record of Views Formed in Response to Inquiries (n 173).

179. FSANZ, Approval Report — Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 6.

180. Ibid 32. In its second call for submissions, FSANZ also stated that it was because it considered it ‘more appropriate’ to assess LegH Prep in terms of its function as a nutritive substance, than as a novel food and at any rate the process is similar: Food Standards Australia and New Zealand, 2 nd Call for Submissions — Application A1186 — Soy Leghemoglobin in Meat Analogue Products (n 4) 30–1. See also, FSANZ, ‘Call for Submissions- Application A1186 - Soy Leghemoglobin in Meat Analogue Products’ (n 121) 3. In another case, a US company applied to the advisory committee for a view on whether another novel protein ‘pea and rice protein fermented by shiitake mycelia (Lentinula edodes)’ and trademarked as PureTaste™Protein was within the “novel food” category. Here, the ACNF decided it was not a novel food because it did not raise safety concerns, but they noted that the protein appears to function as a ‘processing aid’ and so would require approval as a ‘processing aid’. An application is yet to be made: FSANZ, Novel Food - Record of Views Formed in Response to Inquiries (n 173).

181. FSANZ has indicated that it expects cell-based products will be subject to regulatory scrutiny through the existing pre-market approval processes: FSANZ, ‘Cell Based Meat’, Food Standards Australia New Zealand (Web Page, 2021) <https://www.foodstandards.gov.au/consumer/generalissues/Pages/Cell-based-meat.aspx>.

182. The US will regulate cell-based products via the US Department of Agriculture and the Food and Drug Administration with a focus on food safety assessments, site inspections and labelling requirements. These agencies will collaborate further around approvals: USDA and FDA (n 88).

183. FSANZ, ‘Cell Based Meat’ (n 181).

184. Singapore Food Agency (n 9).

185. Except that certain ‘high level’ health claims must be pre-approved by FSANZ under the Code 1.2.7.

186. FSANZ Act s 16(1)(d).

187. Although stakeholders have argued they should be, regulatory reviews have concluded that they should not: ‘Labelling Logic: Review of Food Labelling Law and Policy’, Australia and New Zealand Food Regulation Ministerial Council (Web Page, 27 January 2011) <http://www.foodlabellingreview.gov.au/internet/foodlabelling/publishing.nsf/content/48C0548D80E715BCCA257825001E5DC0/$File/LabellingLogic_2011.pdf>, recommendation 2; Australia and New Zealand Food Regulation Ministerial Council, Response to the Recommendations of Labelling Logic: Review f Food Labelling Law and Policy (2011) (Report, 9 December 2011) 38, 41 <https://foodregulation.gov.au/internet/fr/publishing.nsf/Content/53351997D78AAC31CA258359007E80F5/$File/Forum-Response-to-the-Food-Labelling-Law-and-Policy-Review-9-12-2011.pdf>; Productivity Commission, Regulation of Australian Agriculture (Inquiry Report No 79, Australian Government, Productivity Commission, 15 November 2016) 28–30 <https://www.pc.gov.au/inquiries/completed/agriculture/report/agriculture.pdf>. Indeed, misleading claims about origin, manufacturing processes and nutritional representations in food marketing has been described as a priority area for ACCC enforcement action. See Rod Sims, ‘ACCC 2020 Compliance and Enforcement Priorities’ (Speech, Committee for Economic Development Australia, 25 February 2020) <https://www.accc.gov.au/speech/accc-2020-compliance-and-enforcement-priorities>.

188. Astrid Seehafer and Marvin Bartels, ‘Meat 2.0 — The Regulatory Environment of Plant-based and Cultured Meat' (2019) 14(4) European Food and Feed Law Review 323; Tai (n 15).

189. Barbour (n 87); Lacy-Nichols, Scrinis and Moodie (n 46).

190. See discussion accompanying notes 171 and 173 above.

191. FSANZ explained that it had ‘gone beyond assessment of soy leghemoglobin by considering the applicant’s meat analogue products and the potential for Australian and New Zealand consumers to be misled by meat analogue products’ in FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 44; see also FSANZ, Consumers and Plant-Based Meat Analogue Products in Australia and New Zealand (Supporting Document 2 (at Approval), 15 December 2020) 3 <https://www.foodstandards.gov.au/code/applications/Documents/A1186_SD2atApproval.pdf>.

192. The Code 1.1.1–13(1), 2.2.1–2.

193. Standard 1.1.1–13(4) states that ‘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’ (emphasis added). See also the Code 1.2.2-2, which provides that the name of a food on a food label and related marketing should be ‘sufficient to indicate the true nature of the food’ and ‘includes any additional words this Code requires to be included in the name of the food’.

194. Note that soy products that resemble dairy products are explicitly used as an example in the official commentary on Standard 1.1.1–13(4), which states ‘The context within which foods such as soy milk or soy ice cream are sold is indicated by use of the name soy; indicating that the product is not dairy product to which dairy standard applies’.

195. FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 36–7.

196. Ibid 37.

197. Ibid.

198. See ibid where FSANZ explains ‘When assessing a complaint, both the ACCC and NZCC state that they consider whether the overall representation of the product is misleading. For example, a product that is clearly and prominently labelled “vegan”, “vegetarian” or “meat free” is unlikely to mislead a consumer about whether the product is meat or plant based’.

199. This perspective was discussed in Part IIC(c).

200. This perspective was discussed in more depth in Part IIB.

201. See FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 37; where FSANZ stated ‘The evidence suggests that some consumers in Australia and New Zealand are trying to reduce their meat intake by substituting some of the meat products in their diet with meat analogue products. Evidence also suggests that some consumers believe that meat analogue products have inferior taste and texture characteristics compared to traditional meat products. Ingredients or technologies that improve these characteristics in meat analogue products may increase their palatability to consumers’. FSANZ similarly assumed the consumer is acting largely free of marketing influences and related environmental factors when it observed '[i]f the use of this product is permitted as proposed, consumers may benefit from greater choice of foods, particularly greater choice of fortified meat analogue products. The applicant is targeting their products at ‘flexitarians’, who they claim (on page 62 of the application) are looking for “more ethical and environmentally friendly alternative meat products without compromising on attributes such as the taste and texture"'; ibid 41.

202. This point is supported by various bodies of work, concepts and practices associated with large-scale systems change, for instance, sustainability transitions, participatory deliberative forms of democracy, emerging technologies, and food law and policy scholarship, theories and practices. See, eg, Michael B Wironen, Robert V Bartlett and Jon D Erickson, ‘Deliberation and the Promise of a Deeply Democratic Sustainability Transition’ (2019) 11(4) Sustainability 1023; Andy Stirling, ‘Pluralising Progress: From Integrative Transitions to Transformative Diversity’ (2011) 1(1) Environmental Innovation and Societal Transitions 82; Hayley Stevenson and John S Dryzek, Democratizing Global Climate Governance (Cambridge University Press, 2014). For food policy scholarship, see eg, Parker and Johnson, ‘From Food Chains to Food Webs: Regulating Capitalist Production and Consumption in the Food System’ (n 11). It is also a recommendation consistent with regulatory studies John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press, 2000); Christine Parker, The Open Corporation: Effective Self-Regulation and Democracy (Cambridge University Press, 2002).

203. The quotation is from the Agriculture Ministers’ Forum, Communiques (Department of Agriculture, Water and the Environment, 25 October 2019) <https://www.awe.gov.au/news/stay-informed/communiques/ag-ministers-forum-october-2019>. The Agriculture Ministers Forum (‘AGMIN’) is a regular meeting of all Australian and New Zealand Agriculture Ministers to progress priority issues for the agriculture sector. They referred their concerns to the ministerial forums that oversee both Australian and New Zealand food standards (the Australia and New Zealand Ministerial Forum on Food Regulation), and consumer protection and fair trading laws (the Legislative and Governance Forum on Consumer Affairs).

204. There has been no public response from the latter Forum at the time of writing. See Consumer Affairs Forum, ‘Communiqués’, Australian Consumer Law (2021) <https://consumerlaw.gov.au/index.php/consumer-affairs-forum/communiques>.

205. Australia and New Zealand Ministerial Forum on Food Regulation, Communiqué (Web Page, 15 November 2019) <https://foodregulation.gov.au/internet/fr/publishing.nsf/Content/forum-communique-2019-November>.

206. Ibid.

207. This committee is comprised of government officials from either health or agricultural-focused government departments, across the various jurisdictions: ‘Food Regulation Standing Committee Members’, Australian Government Department of Health (Web Page, 16 June 2020) <https://foodregulation.gov.au/internet/fr/publishing.nsf/Content/FRSC-members>.

208. Australia and New Zealand Ministerial Forum on Food Regulation, Communiqué (n 205) 2, where the Forum went onto state that they ‘recognised the value of the meat and dairy sector to the Australian and New Zealand, diet and economy, but also recognised the growing value of the alternative products sector and agreed that both have a place in the market for consumers’.

209. FSANZ Act s 29(2).

210. Pursuant to FSANZ Act s 18(2), FSANZ must have regard to: ‘the need for standards to be based on risk analysis using the best available scientific evidence’, but also the ‘promotion of consistency between domestic and international food standards’, ‘the desirability of an efficient and internationally competitive food industry’, ‘the promotion of fair trading in food’ and any relevant policy guidelines formulated by the Ministerial Forum.

211. FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 41.

212. Ibid.

213. New Zealand Food and Grocery Council, CFS1 (14 February 2020) 5.

214. There has been a broad and significant shift since the 1960s from publicly funded, applied agricultural research towards privately funded research focused on agricultural biotechnologies and advanced food processing. In high-income countries this trend is especially pronounced. The EU and US have long been the jurisdictions with the most private spending on agricultural biotechnologies research and development: See, eg, International Assessment of Agricultural Knowledge Science and Technology for Development, Agriculture at a Crossroads (Global Report, 2009) <http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/AgricultureataCrossroads_GlobalReport(English).pdf>. Nevertheless, it seems likely that some jobs in sales and distribution would be generated in Australia via Impossible products, though specific estimates were not provided nor were these emphasised by FSANZ or submitters. The increase in private investment is presented as sub-optimal by international institutions and scholars because it poses a barrier to the broader distribution of benefits, shapes the kind of innovation that occurs and enables lock-in to particular kinds of food and agricultural systems. For a more recent summary of these trends and their implications, see Philip G Pardey et al, ‘Agricultural R&D is on the Move’ (2016) 537(7620) Nature 301.

215. FSANZ, Approval Report- Application A1186: Soy Leghemoglobin in Meat Analogue Products (n 5) 42.

216. For imported food, however, compliance with the Code is also monitored through an inspection programme carried out by the Department of Agriculture, Water and the Environment in accordance with the Imported Food Control Act 1992 (Cth). In practice, some shipments of novel meat analogues may be subjected to inspection, which inspection entails an examination of labelling compliance and may involve tests such as for harmful bacteria.

217. Christine Parker et al, ‘Can Labelling Create Transformative Food System Change for Human and Planetary Health? A Case Study of Meat’ (2020) 10(12) International Journal of Health Policy and Management 923 <https://www.ijhpm.com/article_3979.html>; Christine Parker, Fiona Haines and Laura Boehm, ‘The Promise of Ecological Regulation: The Case of Intensive Meat’ (2018) 59 Jurimetrics 15.

218. Christopher Arup, Jane Dixon and Jo Paul-Taylor, ‘The Essential Ingredients of Food Regulatory Governance’ (2020) 29(2) Griffith Law Review 273, 295.

219. The review began in July 2020. A public consultation was conducted on what the scope of the review should be: Nous Group, Review of the Food Standards Australia New Zealand Act 1991: Scoping Paper for Public Consultation (Report, 2 October 2020) <https://consultations.health.gov.au/chronic-disease-and-food-policy-branch/7a3d2478/supporting_documents/FSANZActReviewscopingpaper02.10.pdf>. Further public consultations around particular issues have occurred and closed on 18 May 2021.