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Food Regulatory Measures and the ANZFA Amendment Bill:-Codes of
Practice or Standards-What's the Difference?
Rosemary Polya
Science, Technology, Environment and Resources Group
30 November 1999
The Australia New Zealand Authority Amendment Bill No 2 1999, currently
before Parliament, proposes to substitute the phrase 'food standards'
used in the Australia New Zealand Food Authority Act 1991 (ANZFA
Act 1991). The proposed substitution is:
'food regulatory measures'
The Bill defines a 'food regulatory measure' as either a standard or
code of practice (Item 5 Schedule1).
This note explores the potential impact this change could have on food
regulation in Australia.
Significance
The use of the phrase 'food regulatory measures', if accepted, may increase
the relative importance of Codes of Practice (COPs) over the current
food regulatory mode, namely, the food standards contained in the Australian
Food Standards Code.
Background
Australian Food Standards
Under the ANZFA Act 1991:
- New standards, or alterations to existing standards, developed by
the Australia New Zealand Food Authority (ANZFA), are submitted to the
Australia New Zealand Food Standards Council (ANZFSC) for approval.
ANZFSC comprises New Zealand and Australian (State, Territory and Commonwealth)
health ministers. After approval and gazettal, new food standards and
changes to standards become part of the regulatory instrument, the Australian
Food Standards Code.
- Observance of the Food Standards Code is mandatory throughout
Australia. State and Territory governments, under their respective food
Acts, are responsible for the administration and enforcement of the
Food Standards Code, with local governments shouldering
the day-to-day responsibilities. When the new Code, the Australia
New Zealand Food Standards Code appears in mid-2000, and current
interim arrangements with New Zealand lapse, New Zealand will be responsible
for enforcement there.
Australian Codes of Practice
- relevant industry bodies have developed most COPs
- compliance is not usually mandatory
- industry bodies may try to persuade manufacturers to comply, but ultimately
COPs are not enforceable
- ANZFA has, until now, played an informal role with industry bodies
in developing COPs. Examples of COPs where ANZFA has had involvement
include a self regulatory COP for gluten free foods developed jointly
with the Australian Food Council in 1997, and a COP entitled Nutrient
claims in food labels and in advertisements, ANZFA, 1995. The preface
states :
It is intended to provide a basis for voluntary self-regulation of
nutrient claims by industry
At this stage, it cannot be established how the nutrient claims COP will
relate to ANZFA's nutrition labelling standard proposal, Proposal 167-Nutrition
Labelling(1) or if in fact, the standard proposal was developed,
in part, because the COP did not achieve the required outcome. How can
a consumer know whether COPs are achieving desired outcomes or, indeed,
whether they are in place in all situations that suggest them?(2)
Administrative difference between standards and COPs if the Bill is
passed
The ANZFA Amendment Bill enables ANZFA to formally manage COPs in a manner
akin to that of applications and proposals to ANZFA for the variation
and creation of new food standards. The major difference between the management
of standards and COPS will be:
(a) Standards
ANZFSC controls final approval for most standards changes. However, ANZFA
will be able to make 'less significant'(3) (Item 20A Schedule 1) changes
independently. It is far from clear what this phrase means, and how extensive
ANZFA's new powers will be. If the Bill is enacted, ANZFSC will have the
power to veto ANZFA's decisions on 'less significant' matters within a
timeframe of 28 days.
(b) COPs
ANZFA will have final approval powers for new COPs. ANZFSC cannot veto
ANZFA's approvals of COPs.
In short, COPs are food regulatory measures that are voluntary and do
not require scrutiny by the health ministers.
Discussion
In a recent speech, Ian Lindenmayer, Managing Director of ANZFA, indicated
that:
For any new food measure to be effective and provide an efficient legislative
environment for both industry and enforcement bodies, State and Territory
food Acts must be consistent across Australia. At the moment, differences
in individual State and Territory food legislation are causing problems
in relation to the uniform interpretation of the Food Standards Code.(4)
And yet, if there are to be few regulatory specifications for COPs, problems
may well arise with future increases in the use of COPs and this should
be examined with concern.
ANZFA's 1997 policy paper on COPs set out: 'policy framework measures
intended to support implementation of a less prescriptive food regulatory
environment' ... either 'developed by, or with the participation of, the
Australia New Zealand Food Authority or endorsed by the Authority',(5)
and specified three levels of non-prescriptive measures: codes of practice,
guidelines and ancillary documents.
While ANZFA mentions that noncompliance with COPs may indicate noncompliance
with the Food Standards Code, a disadvantage of a voluntary food
regulation approach is indicated. COPs 'may lack sufficient remedies for
non-compliance when developed without appropriate administrative backing'.
The policy paper specifies criteria that ANZFA may use when deciding to
develop a COP or guideline along with ANZFA's possible response to non-compliance.
It is still far from certain what action ANZFA can take, apart from introducing
mandatory food standards that possibly may or may not prescribe
specific COPs.
Conclusion
Increased use of COPs could generate more questions than answers. Would
the change leave Australia open to more challenges under the dispute settlement
process of the World Trade Organization? Will there be a formal review
and appeals process for COPs? Without access to a definition of 'less
significant' in the Bill, with respect to food standards, how can the
efficacy of ANZFA's approval process for minor food matters be assessed?
Without access to operational guidelines for developing, monitoring and
policing COPs, how can Australians be confident about the utility of the
COP as a food regulatory measure?
In a climate of growing public wariness about food matters, a regulatory
go-ahead for a food regulatory measure, COPs, that cannot be readily enforced,
rather than simplifying Australian food regulation, may add to the confusion.
The advantage of COPs, as viewed by ANZFA, and supported by industry
bodies, is that COPs are a less costly alternative to mandatory regulations.
ANZFA views COPs as being appropriate to use where there are low order
public health or safety risks. Adjudication of industry, consumer and
health conflicts about standards and COPs may well become a source of
continuing conflict.
- Proposal P167. Review of Nutrition Labelling, ANZFA, Canberra,
1999. (Explanatory Notes 12/99).
- While a single list of food COPs could not be found, there are
various incomplete listings.
Codes of Practice and Guidelines Relating to Food
and Agriculture in Australia, DPIE, Canberra, 1994.
Attachment C of the Office of the Chief Veterinary Officer's Report
on Microbial Food Safety Issues at: http://www.dpie.gov.au/ocvo/pub/mfsi/annex3c.html,
and Business Australia's Infolink-Industry Codes at: http://www.businessaustralia.com.au/sic_codes.asp
- Australia New Zealand Food Authority Amendment Bill 1999, p.18.
- Food regulation in Australia and New Zealand - the changing
environment, October 7 1999. At:
http://www.anzfa,gov.au
- Policy Paper. Role and Use of Codes of Practice, Guidelines and
Ancillary Documents to support a uniform Food Regulatory System,
ANZFA, November 1997.
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