'An Impossible Task? Australian Food Law and the Challenge of Novel Meat Analogues' by Hope Johnson and Christine Parker in (2022) Federal Law Review comments
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.
The authors state
Impossible Foods Inc (‘Impossible’), a Californian-based tech start-up that develops, manufactures and markets novel meat analogues, describes its mission as: ‘To drastically reduce humanity’s destructive impact on the global environment by completely replacing the use of animals as food production technology’. Its signature product is its ‘bleeding’ plant-based burger, the ‘Impossible Burger’ available at major supermarkets and restaurants throughout the US, Hong Kong and Singapore. In July 2019, Impossible applied to the statutory authority Food Standards Australia New Zealand (‘FSANZ’) for approval to sell its products in Australia and New Zealand (‘the Impossible application’). Eighteen months later, after two calls for submissions and a notably ‘high volume of stakeholder interest in broader issues relating to the applicant’s Impossible meat analogue products’, FSANZ recommended that the product be approved.
This paper shows that FSANZ’s assessment process for novel food pre-market regulatory approval has a narrow scope of considerations that defines out many concerns of stakeholders, and the most pressing social, ecological and justice issues facing the food system. 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 a whole. It leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods.
Under Australian and New Zealand food law, Impossible needed to apply for approval to sell its meat analogue products because they contain a novel protein ingredient, soy leghemglobin, naturally present in the root nodules of soy plants and now mass produced by Impossible using genetically modified yeast. According to Impossible, soy leghemglobin mimics the molecules in animal flesh that are ‘what makes meat taste so meaty’. As we shall show, Impossible, and other novel meat analogue developers and proponents, claim that their novel meat analogue products will disrupt the food system for the better by replacing animal-derived meat with foods that are more healthy, sustainable and ethical. These claims have gained significant traction due to the increasing institutional and academic support for interventions that enable more healthy and environmentally sustainable diets, as well as growing awareness regarding ethical issues with intensive animal agriculture.
The claim that novel meat analogues will positively disrupt the food system has sparked debates in a multitude of jurisdictions, especially in the US, the EU and now Australia and New Zealand. Public health advocates, proponents of alternative, including agro-ecological, food systems and the meat industry have all contested the idea that novel meat analogues represent a positive future for food. Their various criticisms of novel meat analogues include that the novel analogue products are unhealthy, unwholesome and inferior compared to either animal-derived flesh, or whole food vegetarian products (such as vegetables and legumes), the way the novel products use food processing technology (including GM) and the fact that they are promoted by corporate interests (Silicon Valley tech companies, fast food retailers, supermarkets and even in some cases meat companies wishing to diversify their portfolio). These critiques extend to whether novel meat analogues should replace meat derived from animals including whether novel meat analogues can bring about healthier diets and make the food system more ethical and ecologically sustainable.
The promise of a better food claimed by proponents of novel meat analogues, and the contestation of these claims, raise urgent public interest issues for the food system which deserve serious legal and policy attention. The debate extends beyond novel meat analogues as a new food category raising questions about how to address the interlinked social, environmental and ethical issues associated with food systems and the role of regulation in addressing these challenges. As a slew of new meat analogues, including new products based on cultured animal cells, are developed, the Impossible application can be seen as a ‘test case’ as to how FSANZ’s pre-market regulatory assessment system addresses these policy issues.
Part II introduces and explains what we mean by ‘novel meat analogues’ and ‘novel proteins’. We show how novel meat analogue products, and their novel protein ingredients, are contested in public discourse around the world, and specifically within Australia, and the kinds of issues to which regulators are being called on to respond. In doing so, we draw on academic literature and our own thematic analysis of submissions to FSANZ’s assessment of the Impossible application.
Part III analyses the relevant provisions of the Food Standards Australia New Zealand Act 1991 (Cth) (‘FSANZ Act’), the Australia New Zealand Food Standards Code (‘the Code’) and FSANZ’s assessment of the Impossible application to demonstrate the narrow scope and application of Australian pre-market regulatory assessment for novel foods. We show that the process is geared towards a narrow scientific risk assessment of the acute, direct safety and toxicity of individual novel ingredients and processes. This process is inadequate to address the policy concerns raised in public discourse over novel meat analogues in general and Impossible’s application in particular. In practice, the assessment process over-values economic interests and consumer choice and only deals with health and safety issues that are amenable to direct, biomedical measurement. FSANZ’s focus on particular issues and evidence, and to disengage from other social and ethical issues and evidentiary bases, seems neutral and apolitical, but has important political and policy ramifications. These debates are already spilling over into debates over how novel meat analogue products should legally be allowed to be described (for example through petitions to prohibit the use of terms such as ‘burgers’, ‘sausages’ and ‘plant-based meat’), and feed into ongoing concern about what FSANZ could be doing to limit the consumption of other processed foods.
Part IV of the paper concludes that Australia’s food law and policy provides little opportunity to assess and debate the impact of novel food products (eg the Impossible burger as distinct from the novel ingredient, soy leghemoglobin) and whole categories of food (such as novel meat analogues and ultra-processed foods) including their combined effects on the diet of the population. It also provides very limited avenues for assessing the social, economic, ethical and environmental impacts of novel food ingredients, products and categories on the food system as a whole. The current regulatory approach leaves it to the market and consumer choice to determine the future of the food system, rather than providing for public democratic policy fora in which to discuss and debate larger questions of the desirable qualities and trajectory of food systems and technological change.
