An Impossible Task? Australian Food Law and the Challenge of Novel Meat Analogues
| Author | Hope Johnson,Christine Parker |
| DOI | http://doi.org/10.1177/0067205X221107411 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Article
Federal Law Review
2022, Vol. 50(3) 331–370
© The Author(s) 2022
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DOI: 10.1177/0067205X221107411
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An Impossible Task? Australian Food
Law and the Challenge of Novel Meat
Analogues
Hope Johnson*and Christine Parker**
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 im-
plications 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.
Received 23 June 2021
I Introduction
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
*SeniorLecturer, Law School, Queensland University of Technology. The author may be contactedat h2.johnson@qut.edu.au.
**Professor, Melbourne Law School, The University of Melbourne, Australia. The author may be contacted at
christine.parker@unimelb.edu.au. 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.
production technology’.
1
Its signature product is its ‘bleeding’plant-based burger, the ‘Impossible
Burger’
2
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’).
3
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’,
4
FSANZ recommended that the product be approved.
5
This paper showsthat FSANZ’s assessmentprocess for novel food pre-marketregulatory approval
has a narrow scope of considerations that defines out many concerns of stakeholders, and the most
pressingsocial, ecological and justiceissues facing the food system. FSANZ’sregulatorypre-approval
process focuses almost exclusively on the safety of individual ingredients rather than the impact of
novel foods onthe food supply as a whole. It leaves broader issues to the market and consumerchoice
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, nat-
urally present in the root nodules of soy plants and now mass produced by Impossible using
genetically modified yeast.
6
According to Impossible, soy leghemglobin mimics the molecules in
animal flesh that are ‘what makes meat taste so meaty’.
7
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
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 StandardsCode 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 Leghemoglobinin 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,
Communiqu´e 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.
332 Federal Law Review 50(3)
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.
8
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 con-
testation 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.
9
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.
10
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 ev-
identiary bases, seems neutral and apolitical, but has important political and policy ramifications.
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 Al-
ternative 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.
Johnson and Parker 333
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