Is kava coming… or being stopped?


Posted By on 20/12/21 at 4:37 PM

Seemingly as a festive season gift, Food Standards Australia New Zealand (FSANZ) has released a call for submissions on 10 December 2021 that closes by 23 December 2021 and will likely be the only round of consultation that FSANZ holds on Proposal P1057. What’s P1057 for? FSANZ is urgently reviewing how kava is regulated under the Australia New Zealand Food Standards Code (the Food Standards Code), and what FSANZ hopes to achieve could well catch many importers and Australian suppliers of kava by surprise.

KHQ Lawyers - Food Regulation - Kava

Wider uptake of kava

Kava is a crop whose root has been traditionally used to make a drink in Pacific Island nations that can have sedative, anaesthetic and “euphoriant” properties. While it has a longstanding role in traditional ceremonies, kava’s effects have led to wider consumption outside of Pacific Islander communities and its ceremonial role. In fact, kava’s effects sit neatly inside current Western consumer demand for food products which positively impact consumers’ moods.

The growing popularity and consumption of kava led to the Food and Agriculture Organization of the United Nations (FAO/WHO) reviewing the safety of these new levels of kava consumption.[i] While this report acknowledged significant data gaps and variation in how kava beverages are prepared, it did find that there is little evidence of adverse affects associated with traditional consumption levels. Concerns remained over broader, regular consumption of kava; leading to FAO/WHO ultimately recommending that heavy consumption of kava ought to be discouraged.

However, it is not this wider consumption that has FSANZ’s proposal to review and clarify the regulation of kava; but rather the Australian Federal Government’s kava pilot program. This program – in order to improve relations with our Pacific Island neighbours – started to allow commercial importation of kava as of 1 December 2021. Given this pilot program was announced in October 2019, it seems strange that it has prompted an urgent FSANZ proposal to amend the Food Standards Code after commercial imports began and that this work could not have been conducted at a more reasonable pace over the last two years. Regardless, here we are.

In order for these new commercial imports of kava to compliantly cross the border and enter Australia, they must comply with the Food Standards Code, and this is what FSANZ is urgently reviewing: the terms under which commercial imports of kava can enter Australia and subsequently be sold in Australia.

Current Australian regulatory position of kava

Section 1.1.1-10 of the Food Standards Code currently strictly prohibits kava or any substance derived from kava from being used as an ingredient in food. In addition, any biologically active substance derived from kava (such as kavalactones) could also be prohibited as either novel foods or nutritive substances.

However, the Food Standards Code also currently features a standard just for kava – namely Standard 2.6.3. This Standard includes an exception to the abovementioned prohibition but only for: a beverage obtained by the aqueous suspension of kava root using cold water only, and not using any organic solvent; or dried or raw kava root.[ii]

This exception arguably allows a “food” to be an aqueous suspension of kava root, and once allowed as a “food” it arguably interacts with other parts of the Food Standards Code. For example, it could interact with the permission in Section 1.1.1-10 for any food to have any other food as an ingredient, thus allowing a kava extract to be an ingredient in other foods. FSANZ appears to believe that the Food Standards Code is currently drafted so as to prohibit the mixing of a kava beverage or the kava root with any other food ingredient; however, FSANZ’s intentions in its drafting of the Code is not always reflected in the resulting legislation.

What FSANZ does acknowledge is that other food ingredients could well be added to kava beverages in the form of food additives. While kava itself does not have express permission to contain food additives, there are other categories of food which kava could sit within. FSANZ identifies water based flavoured drinks, vegetable juice products, and the catch-all category of Item 20 in Schedule 15 as categories with broad food additive permissions which could extend to kava beverages.

The permission to add food additives to kava beverages is an important regulatory issue, as it could allow for flavourings, carbonation, preservatives and other ingredients that could make kava beverages more shelf-stable, palatable and interesting to a wider consumer base.

In short (and in the face of the Federal government encouraging commercial imports of kava): FSANZ has looked at domestic regulation of kava and found it unclear. A key issue for beverage importers and manufacturers in Australia who may be considering kava as an ingredient is how FSANZ wishes to clarify the regulation of kava: to encourage the burgeoning innovation and wider use of kava… or not?

What could change?

FSANZ Proposal P1057 is an urgent proposal, which means there are fewer rounds of stakeholder consultation before a final draft variation of the Code may be put to the Legislative Forum for approval. Also, FSANZ has only offered a 13-day window in the lead-up to the festive season for any stakeholder to engage in this round of consultation.

In preparation for this urgent proposal, FSANZ conducted a Risk Assessment. This Risk Assessment, like the FAO/WHO Report mentioned above, also commented on the lack of data available:

There were no high quality clinical trials that used kava beverage as the test item.[iii]

However, FSANZ did raise the concern that regular, ongoing consumption of kava beyond traditional or ceremonial use could lead to intake of kavalactones at higher levels than is currently permitted in medicines in Australia (let alone food) and “has the potential to become a substance of abuse”.

As a result, FSANZ’s risk assessment either indicates that wider consumption of kava could become a food safety issue or there is a lack of evidence to show how kava consumption could increase safely.

As a result, FSANZ has taken the view in Proposal P1057 that kava ought to only be permitted in food for traditional uses and ought not to be commercialised any further (e.g. no shelf-stable beverage products, no mixing with other foods, no food additives). As such, FSANZ currently proposes to change the Food Standards Code in such a way that limits the compliant sale of kava beverages solely to those:

  • made at the same physical location where they are to be consumed;
  • made for immediate consumption; and
  • which have no food additives or processing aids.

Should this amendment proceed, FSANZ will have successfully implemented its goal of limiting kava consumption to its traditional use and removed any opportunity for commercialisation or innovation in relation to kava consumption.

Any Australian business interested in exploring kava as a food product had better raise their voice soon or lose any opportunity to further commercialise kava for the indefinite future.

If you have any questions in relation to this post, please don’t hesitate to contact us.

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[i] https://www.fao.org/3/i5770e/i5770e.pdf

[ii] https://www.legislation.gov.au/Details/F2021C00673

[iii] https://www.foodstandards.gov.au/code/proposals/Documents/P1057%20CFS%20Initial%20consideration.pdf

KHQ Lawyers - Charles Fisher

Charles Fisher Principal Solicitor

Since completing his Bachelor of Laws and Legal Practice and Bachelor of Arts in 2006, Charles has spent the entirety of his legal career staring at the Food Standards Code (among many other pieces... Read More