Background
Food Standards
Australia New Zealand (FSANZ) is an independent statutory agency
established by the Food
Standards Australia New Zealand Act 1991 (FSANZ Act). FSANZ develops standards that regulate the use of ingredients, processing aids,
colourings, additives, vitamins and minerals. Together the food standards
comprise the Australia
New Zealand Food Standards Code (the Code) which covers:
- the composition of some foods, such as dairy, meat and beverages
- foods developed by new technologies such as genetically modified
foods
- some labelling requirements for packaged and unpackaged food
(such as mandatory warnings or advisory labels) and
- Australia-only primary production and processing standards.
This Quick Guide describes the legal framework that is
currently in place for making or varying a food standard and sets out the steps
that need to be taken to do so.
Legal framework
On 3
November 2000, the Council of Australian Governments (COAG) signed an Inter‑Governmental
Agreement to underpin a new food regulatory system. The Commonwealth and all
the Australian states and territories are signatories to the Food
Regulation Agreement.
A Treaty between Australia and New Zealand—the Agreement
Between the Government of Australia and the Government of New Zealand
Concerning a Joint Food Standards System—gives effect to New Zealand’s
participation in the system. This was signed in 1995 and has been updated several times since then.
How it works
The system for food regulation divides responsibility for
policy development, the provision of policy advice, developing and setting food
standards and their subsequent enforcement between a number of bodies described
below.
The Australia
and New Zealand Ministerial Forum on Food Regulation (the Forum),[1] is comprised of the relevant ministers from Australian and New Zealand government
jurisdictions and has both policy-setting and decision-making functions:
- food policy is cooperatively
made by the Forum (p. 8) and
- the Forum
Members are the decision-makers in the system. They approve all food
standards and can also request that a draft standard be developed, reviewed,
amended or rejected (p. 8‑9).
The Forum is supported by the Food
Regulation Standing Committee (FRSC). FRSC
members include government department and agency heads responsible for food
regulation in each jurisdiction. The role of the FRSC is to coordinate and
provide policy advice to the Forum, with a view to ensuring a nationally
consistent approach to the implementation and enforcement of food standards and
mapping out the steps required for developing a specific policy.
FSANZ develops and sets food standards which, if approved by the Forum, become
part of food law in the states and territories and in New Zealand.
Authorities in Australia and New Zealand work closely
together to ensure food laws are implemented and enforced consistently wherever
possible. This is done by the Implementation
Subcommittee for Food Regulation (ISFR). ISFR
members include representatives from food regulation authorities in
Australia and New Zealand.
Importantly, currently there is no simple legal mechanism outside
this framework which allows the Federal Government to enact a law which makes a
food standard.
What is food?
For the purposes of the FSANZ Act the term food is defined broadly. It includes any substance or thing of a kind used,
capable of being used, or represented as being for use, for human consumption
whether it is live, raw, prepared or partly prepared. It encompasses any
substance or thing of a kind used, capable of being used, or represented as
being for use, as an ingredient or additive in the food and
includes chewing gum or an ingredient or additive in chewing gum, or any
substance used in preparing chewing gum (section
5).
Matters to be considered in making
or varying a food standard
A food standard or a particular code
of practice is referred to as a food
regulatory measure. Once made, they are included in the Code. When
developing a food regulatory measure FSANZ’s objectives are (in descending
priority order):
- the protection of public health and safety
- the
provision of adequate information relating to food to enable consumers to make informed
choices and
- the prevention of misleading or deceptive conduct [subsection
18(1)].
The FSANZ Act sets out those matters that may be
included in standards or variation of a food standard. They include but are not
limited to the composition of the food; its production; handling; the
knowledge, skill, health and hygiene of persons and businesses handling the food;
and the information food businesses may be required to give state and territory
authorities about the food (section
16). In addition, FSANZ must also have regard to various
other matters, including basing standards on ‘the best available scientific
evidence’ and the promotion of ‘consistency between domestic and international
food standards’.
There are two procedures for considering an application:
- the general procedure (Subdivision D in Division 1
of Part 3) (which can be modified for minor variations (Subdivision E in
Division 1 of Part 3), or modified for developing new food regulatory measures
and major variations (Subdivision F in Division 1 of Part 3)) and
- the procedure for variations of the Nutrition, Health and Related
Claims Standard (Subdivision G in Division 1 of Part 3).
FSANZ must adopt
the general procedure in considering an application for the development of
a food regulatory measure or the variation of a food regulatory measure, unless
the application is one to which Subdivisions E, F or G apply. This Quick Guide
sets out the general procedure below.
Steps in the process
Step 1
Any person or body may make an application to FSANZ for the
development of, or variation of, a food regulatory measure (examples are
available on
the FSANZ website). The application must be in writing and in the form
specified in FSANZ guidelines which are set out in the Food Standards
Australia New Zealand Act 1991—Application Handbook (sections 22 and 23).
Step 2
FSANZ decides whether to accept or reject the application.
That decision must be made within 15 business days of the application
being made (subsection
26(1)). If the application is accepted, FSANZ proceeds to Step 3. In
making this decision FSANZ takes into account:
- whether the application complies with the manner and form
requirements in subsection 22(2)
- whether the application relates to a matter that may be developed
as a food regulatory measure, or that warrants the variation of a food
regulatory measure
- whether the application is so similar to a previous application
or proposal for the development or variation of a food regulatory measure that
it ought to be rejected and
- any other relevant matter (subsection
26(2)).
If the application is rejected that decision is subject
to review by the Administrative Appeals Tribunal (AAT)—only if the reason
for rejection was a reason other than that the application failed
to comply with the manner and form requirements in subsection 22(2).
Step 3
FSANZ notifies the applicant of acceptance in writing setting
out the steps it will adopt in considering the application. Depending on the
nature of the application—for instance if it confers an exclusive
capturable commercial benefit (being the benefit conferred on a person
or body that may derive a financial gain from the coming into effect of the
draft standard or draft variation of the standard prepared in response to the
application, where any other person or body would require the agreement of the
applicant to benefit financially from the approval of the application) or if it
is to be expedited—a
fee may be payable (Part
4 of the Food
Standards Australia New Zealand Regulations 1994).
Step 4
If the application is accepted, FSANZ must give public
notice of the application, indicating when it proposes to undertake
key steps in considering it (section
28). FSANZ satisfies the requirement to give public notice provided that it
publishes notice of the matter on the FSANZ website. Other notice requirements
may arise in the course of the process.
Step 5
FSANZ assesses the application. The FSANZ Act provides
for a 12 month consideration
period commencing on the first day that the assessment procedure
begins. The assessment of an application takes into account:
- 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
- whether other measures would be more cost-effective than a food
regulatory measure developed or varied as a result of the application
- any relevant New Zealand standards and
- any other relevant matters (section
29).
After assessing the application, FSANZ either rejects it or
proceeds to the next step (paragraph 30(1)(b)).
If the application falls within Subdivision F in Division 1 of Part 3 of the FSANZ Act—that
is, an application for a new food standard or for a major variation of a food
standard—the next step is Step 6. Otherwise, it is Step 7.
If the application is rejected at this step, the
decision is subject to review by the AAT.
Step 6
FSANZ calls for public
submissions by giving public
notice which includes giving written notice to the applicant and
any other person whom FSANZ considers appropriate. The public notice must,
amongst other things, include a summary of the results of FSANZ’s assessment of
the application, or state how a copy of the summary can be obtained and call
for written submissions on matters relevant to the application to be provided within
a specified period (section
44).
Step 7
FSANZ prepares a draft food standard or a draft variation of a food standard, as the case requires (paragraph
30(1)(a)). If FSANZ has called for submissions under Step 6, it must have
regard to the submissions in doing so (section
45). If the content of the draft food standard or variation is different
from what the applicant sought, or the relevant content was not sought in the
application at all, FSANZ must give the applicant written notice of that fact
and advise that it will call for submissions for the purpose of assessing the
draft measure or draft variation (subsection 30(2)).
Step 8
Once the draft food standard or draft variation is prepared,
FSANZ must again seek input before it can be finalised. If the application is
for a minor variation, FSANZ calls for submissions about the relevant draft from
the applicant and the members of the Forum (section
40).
In any other case, FSANZ calls for public submissions by public
notice in the same way as for Step 6. The call for
written submissions must also include information about the specific period during
which submissions may be made (section
31).
Step 9
FSANZ decides to approve or reject
draft
Once the submission period has ended, FSANZ must decide
whether to approve the relevant draft or reject it, having regard to any
submissions it received (subsections
33(1) and (2)). Once the decision is made, FSANZ must prepare a detailed report
outlining, amongst other things:
- a summary of the submissions received in relation to the draft
standard or draft variation
- FSANZ’s response to any issues raised in those submissions
- whether the draft standard or draft variation was amended after
submissions were made and, if so, the reasons for those amendments and
- its reasons for approving or rejecting the draft standard or
draft variation (section
33(3)).
FSANZ notifies the Forum
If the draft is approved by FSANZ, it must notify the Forum
on Food Regulation and give public
notice of the approval within 10 business days (section
34).
The Forum has 60 days after that notification to either request that FSANZ review the draft, or inform FSANZ that the Forum does
not intend to request such a review. Where the Forum does not request a review FSANZ
must comply with the publication
requirements.
If the Forum exercises its power to request a review it must
comply with both the Food Regulation Agreement and the Australia New Zealand
Joint Food Standards Agreement (section
84).
Powers of the Forum
If the Forum has concerns with the draft standard or draft
variation, it may give FSANZ directions about the conduct of the review (section
86). In that case, FSANZ must carry out the review in accordance with those
directions and make a new decision in respect of the draft within 3 months of the
date of the Forum’s request. That done, FSANZ may decide to re-affirm its
approval of the draft with or without amendments, or decide to withdraw its
approval of the draft. FSANZ must give the Forum written reasons for its
decision within 10 business days of making it (section
87).
If FSANZ has decided to re-affirm its approval of the draft
with or without amendments, the Forum has a further 60 days to consider the
decision (section
88) and:
- inform FSANZ that does not intend to amend or reject the draft (section
89)
- by written instrument, amend the draft (section
90) or
- reject the draft (section
91).
As a result of the above, in effect the Forum has final
decision-making power over food standards.
Publication
Once any action by the Forum is complete, FSANZ prepares a
notice stating the date on which the draft comes into effect and publishes the notice
on its website and in the Gazette (section
92).
Step 10
The new food standard or the variation of a food standard
comes into effect on the day specified in the notice (section
93).