Enhancing the safety and integrity of pet food in Australia
4.1
This chapter explores methods and mechanisms to strengthen the safety
and integrity of pet food in Australia, with a focus on the Australian
Standard.
4.2
Nestlé argued that the standard to which pet food is made in Australia
is high, and that pet owners 'have every reason to be confident in the quality
and safety of foods sold in Australia'. It noted that the Australian Standard
was developed in consultation with key stakeholders, and whilst the pet food
industry was involved, it was 'not dominant'.[1]
4.3
Another benefit of the Australian Standard, according to Nestlé, is that
pet food made to this standard is accepted by a wide range of export markets,
including Japan, Malaysia, Indonesia, Singapore, Korea, Hong Kong and New
Zealand. Nestlé further argued that equivalent international standards are also
recognised under the Australian Standard, which allows for a simpler import and
export pathway.[2]
4.4
However, a considerable number of submitters, many of whom were pet
owners, expressed the view that the industry was no longer capable of self-regulation
and argued that the Australian Standard should be mandatory.[3] Ms Rach Dola, for example, argued that the current system is 'failing in a
catastrophic way' and is akin to 'involuntary animal testing'.[4] Mrs Christine Fry told the committee that the current system does not meet
community expectations:
People want pet food companies to be held accountable and
pets to be seen as more than a commodity. We as [Australian National Kennel
Council] members have to abide by rules and regulations. I assume parliament
has a set of rules and regulations. We as a human race abide by laws. Why,
then, is the pet food industry not regulated, and why are companies not held
accountable for their actions?[5]
4.5
The fact that the pet food industry operates under a self-regulated
model came as a surprise to many submitters, who had assumed that the pet food
industry is, and has always been, subject to stringent regulation.[6] For these reasons, many submitters argued for greater compliance, transparency
and enforcement of the Australian Standard for pet food.[7]
Access to the Australian Standard
4.6
There were a number of concerns raised in evidence regarding the Australian
Standard. The fact that the standard is not freely available to the public, and
cannot be shared for reasons of copyright restrictions, was recognised as a
major barrier to transparency, compliance and accountability.[8] Pet owners, as consumers, are prevented from accessing the information that
they require to establish whether the pet food products that they buy are fit
for purpose.
4.7
Members of the public wishing to purchase a copy of the standard must do
so through the SAI-Global website, and make a payment of approximately $128.19.[9] To many submitters, this posed a 'substantial financial barrier' and has
consequently 'hampered' pet owner trust.[10] In this regard, Ms Ruth Quick stated:
This in itself is a major obstacle to the public consumer. How
can people comment on these standards when they have to first pay a large
amount of money before they can even see it??? And what is the point of having
a 'standards' system when it is purely voluntary such that if there is a
problem then there is no obligation or penalty is given when they are
breached??[11]
4.8
Similarly, Ms Elisia Nichol questioned the efficacy of a costly standard,
stating that the accreditation label 'means nothing to a consumer who isn't
even able to access AS5812:2017 to understand what it means'.[12]
4.9
Nestlé also acknowledged that there was a lack of transparency with
regard to the standard as it is not available without payment of a fee and
described the consequences:
This means that pet owners and others lack a way to see and
understand the requirements of the Standard and the expectations on pet food
manufactures, and likewise, lack a means to know whether the food they buy
meets that standard.[13]
4.10
The Animal Welfare Coalition of WA expressed the view that the
Australian Standard was both comprehensive and highly prescriptive with regard
to product labelling and content. It noted, however, that as the industry is
self-regulated, consumers must be able to trust that the claims being made are
true.[14] Similarly, CHOICE indicated that the standard appears that 'it could be a good
standard to apply', but noted that it would like to see more investigation done
into whether or not it does what consumers need it to do.[15]
4.11
As a first step, consumers must be able to easily access and discuss the
standard in order to be able to draw on it to hold the industry to account.
4.12
In the past, the Senate Economics References Committee also raised the
issue of the availability of Australian Standards. In its interim report into
non‑conforming building products (aluminium composite cladding), the Economics
Committee noted that making Australian Standards freely available would have a
'significant impact on building compliance'. In addition, it stated that the:
...Commonwealth government should give serious consideration to
engaging with Standards Australia to explore possible options to providing free
access to Australian Standards, including reinstating online access to the
Standards through Australian libraries.[16]
4.13
The Government Response, provided in February 2018, gave in-principle
support to the Economics Committee's recommendation to make all Australian
Standards and codes freely available. However, it noted that doing so could
pass the cost of the standards on to the taxpayer or the consumer. It also noted
that improving access to standards would require 'the support of Standards
Australia and SAI-Global in facilitating greater flexibility and cost options
available to government'.[17]
4.14
The need for publicly accessible standards has also been raised by
Senate scrutiny committees in the context of regulation. The need to ensure
that regulation does not incorporate documents that are not readily and freely
available (without cost) to the public has been highlighted by the Senate
Standing Committee on Regulations and Ordinances and the Senate Standing
Committee for the Scrutiny of Bills. In delegated legislation monitor 8 of
2017, the Regulations and Ordinances Committee noted that:
A fundamental principle of the rule of law is that every
person subject to the law should be able to access its terms readily and
freely. The issue of access to material incorporated into the law by reference
to external documents, such as Australian and international standards, has been
one of ongoing concern to Australian parliamentary scrutiny committees.[18]
4.15
The issue of accessibility therefore remained at the forefront of
submitters' concerns about the efficacy and transparency of the pet food industry
in Australia.
Strengthening labelling
requirements
4.16
The committee received a substantial amount of evidence relating to the
labelling and nutritional requirements for manufactured pet food. While the
Australian Standard provides some degree of scrutiny for pet owners, many
submitters expressed concern that the labels are not sufficiently comprehensive
in their description of the ingredients, by-products, and heat treatments of
the pet food.[19]
4.17
This is particularly problematic for animals with specific dietary
requirements.[20] Ms Karin Strehlow shared her concern that:
In practice, most canned food will have labels stating
"meat/meat by products", but as a consumer I am unable to discern the
percentage of meat and the percentage of by product. For someone with a dog
experiencing food allergies, these generic labels are not useful.[21]
4.18
One submitter described pet food labels as 'virtually impossible to
decipher'.[22] Another submitter went as far to say that the wording used on labels
demonstrates 'creative ways' to imply a food 'is something that it's not'.[23] Terms such as 'complete and balanced', 'veterinary prescribed', and
'scientifically formulated' were perceived to be particularly confusing and
misleading. For this reason, the committee was told by pet owners that they
would like to see more 'clear and honest' labelling of pet food, similar to the
standard that is required for human food.[24]
4.19
To provide for greater transparency, submitters called for comprehensive
labelling which identifies all preservatives, ingredients and additives
included in pet food.[25] To achieve this aim, it was suggested that input from nutritionists,
veterinarians, toxicologists and microbiologists be sought to inform the
standard.[26]
4.20
A number of witnesses also suggested the adoption of feeding trials to
ensure that the nutritional information provided in the guidelines is tried and
tested. Dr Richard Malik noted that this practice has already been adopted
in New Zealand.[27] Similarly, Professor Caroline Mansfield expressed the view that feeding trials
are an essential aspect of the AAFCO guidelines that have not been pursued in
Australia. If conducted, feeding trials would allow for the detection of issues
that may develop over a longer period of feeding but are not noticeable in
one-off batch testing or assessment.[28] This would allow for the ability to 'confidently exclude' potential toxins from
pet food prior to sale.[29]
4.21
Another labelling concern raised in evidence was the heat treatment or
irradiation of pet food.[30] As detailed in Chapter 2, irradiation treatment has been shown to alter the
nutritional content of cat foods to such a degree that neurological impairment
or death has occurred. For this reason, Dr Andrew Spanner advocated for the
inclusion of all ingredients, including preservatives, and a declaration of
treatments such as irradiation on pet food labels for all pet food, both
domestically manufactured and imported.[31]
A mandatory and enforceable Australian
Standard
4.22
A substantial number of submitters called for the establishment of an
independent pet food regulator with the power to oversight and enforce the Australian
Standard as well as recall unsafe pet food products. The general view held by
many was that voluntary adoption of the Australian Standard has undermined consumer
trust in commercially available pet food, and it was argued that the Australian
Standard should be mandatory. The Animal Welfare Coalition of WA explained that
the main problem with the Australian Standard is the absence of enforcement,
auditing or penalties for non-compliance.[32] It continued:
Simply trusting that products made by a self-regulating
industry are as represented is scarcely acceptable at any time, but when pet
owners are choosing particular products for health reasons (e.g. kitten/puppy
nutrition, low allergen, recovery from illness formulations) and paying a
premium for those products, it becomes an issue of potentially playing
consumers for fools and not delivering the expected benefits to animals when
they most need it. [33]
4.23
Similarly, CHOICE expressed the view that the Australian Standard
appeared to be a good standard to apply, but that further investigation was
required to establish whether it 'does what consumers need it to do'.[34] CHOICE's representative, Ms Erin Turner, further noted that enforcement of the
standard would provide for independent testing to give consumers 'that sense of
rigour, monitoring and enforcement that we expect from other food we buy in the
supermarket'.[35]
4.24
Ms Christine Darby told the committee that her trust in processed pet
foods had been 'eroded' as a result of the megaesophagus incidents.[36] Ms Jodi Burnett summarised submitters' exasperation with the current system:
...what is the point of having standards if you don't have to
follow them? That's like saying: 'We have road rules, but it's up to you if you
follow them. Okay, a lot of people die in crashes, but that's neither here nor
there.'[37]
4.25
In contrast, Nestlé suggested that 'most reputable companies' would not
only adhere to the standard but also issue a recall of any product that posed a
threat to pet health.[38] Similarly, Mars Petcare Australia informed the committee that it was important
for companies to have a proper regime of oversight and enforcement, as is the
case with Mars.[39]
4.26
Mr James Green, General Manager of Raw Feeders Kitchen, argued that the
current system provides an 'uninhibited pathway' for manufactures to
commercialise products with limited or no legal obligation to their customers
regarding the origin, source, quality, volume, or synthetic attributes of raw
materials included in pet food. He suggested that ethical producers of animal
nutrition are at a commercial disadvantage due to the costs associated with delivering
high standards and that:
This can be directly attributed to the absence of strong
regulatory controls and enforceable legislation to ensure all animal nutrition
products meet the same stringent standards. [40]
4.27
However, the AVA cautioned that making the standard compulsory would
require careful consideration as to the method and timeframe for
implementation. It further noted that enforcing the Australian Standard for
pet food as a mandatory measure within a short period of time could cause
financial imbalances; whereby smaller local companies that lack the financial
capacity to comply, may exit the pet food market. At the same time, larger pet
food companies that are already compliant, and supply a large majority of
Australian pet food, would experience a market advantage. The AVA suggested
that this could have a wider impact on pets more broadly:
A loss of food diversity can be associated with increased
toxicity risk. Some of these smaller companies provide specific prescription
foods important for the health and welfare of Australian pets (such as specific
elimination diets), so there needs to be careful consideration of how to
prevent these types of unintended consequences of any new regulatory system.[41]
4.28
While the committee acknowledges the audit and accreditation process
established by PFIAA witnesses repeatedly noted the voluntary nature of the
process. As there were widespread concerns regarding the self-regulated system,
underpinned by voluntary adherence to the Australian Standard, the committee
considered other regulatory options. These included the prospect of enforcing
the Australian Standard under a co-regulatory regime and the alternative option
of establishing a new national standard as part of a comprehensive government
regulatory regime.
Regulatory options
4.29
In light of the strong support amongst individual submitters for a pet
food regulator with powers to enforce a mandatory Australian Standard, the
committee considered other regulatory options. The three primary options for
regulating the pet food industry considered by the committee include: the current
model of self-regulation, a co-regulation model, and a comprehensive framework
of government regulation.
4.30
As it was made clear that the current self-regulatory framework was no
longer acceptable by community standards, the committee considered the benefits
and challenges of the other two options.
Co-regulation
4.31
Under a co-regulatory model, industry standards are enforced through
legislation or as a condition of industry operations. Under such an arrangement,
the Australia Standard would provide the basis for nationally consistent
regulation of domestically produced and imported pet food.
4.32
CHOICE suggested that, as a first step, the Australian Standard be made
mandatory with a regulator responsible for monitoring and enforcing it.[42]
4.33
Industry stakeholders, including Mars Petcare, also voiced support for a
co-regulation model for pet food. Mars Petcare stated:
We support the creation of a co-regulatory model for the pet
food industry and believe it will lift the standards across our industry,
increase the trust of pet owners in the foods our industry produces, and ensure
that all companies do the right thing.[43]
4.34
The PFIAA acknowledged the benefits that may accrue from a co-regulatory
model; including industry oversight, uniformity of quality standards and a
prescribed requirement to have efficient product recall management systems in
place.[44]
4.35
In line with this approach, RSPCA Australia expressed the view that the
government should 'focus on the standards themselves and making them a
regulatory instrument that is mandatory'. Thereafter, members of the community
could come together to address gaps in pet food safety, including the promotion
of, and access to, information about pet nutrition. It was argued that this
model would ensure a community‑driven approach to regulation, rather than
one reliant on comprehensive government intervention.[45]
4.36
The 2012 ABARES report commissioned by the PFCWG described the
co-regulation model as a way of 'augmenting generic consumer protection
measures' without relying on comprehensive government regulation. ABARES continued:
Enforcement problems under self-regulation can sometimes be
effectively addressed through co-regulation where industry standards are
enforced through legislation or as a condition of operating in the
industry...Since co‑regulation continues to utilise industry expertise, it
may retain some of the advantages of a self-regulatory regime, including
minimising unintended consequences and costs.[46]
4.37
However, the PFCWG noted that while the standard could be developed as
the basis for nationally consistent regulation, it would then have to be put to
the Standing Council on Primary Industries (SCoPI) for endorsement and a
commitment to regulate the standard in all jurisdictions.[47] In addition, the PFCWG noted that relevant state and territory as well as
Commonwealth requirements with regard to justifiable, proportional and
effective regulation would need to be met.[48]
4.38
The PFCWG further cautioned that implementing the relevant regulations across
all Commonwealth, state and territory jurisdictions (including regulating to
the standard, any associated testing and the power to mandate product recalls)
would 'take an extended period of time, possibly several years'.[49]
4.39
Under a co-regulatory arrangement, adverse event reporting, tracking and
investigation programs would operate through a partnership between government,
industry and the veterinary profession. At the same time, official mechanisms
would have to be created to enable pet food recalls in the event that a
producer was considered to have failed in its duty.[50]
4.40
However, an alternative option was suggested to the committee. The
Animal Welfare Coalition WA suggested that by empowering the ACCC to regulate
pet food, the Australian Standard could be attached to the existing Competition
and Consumer Act 2010 and subsequently enforced.[51] It noted the ACCC's demonstrated ability to accept consumer reports and
complaints, announce product recalls, and oversee a range of products relating
to animals. This option is further considered in the following chapters.
Comprehensive regulation
4.41
Under a comprehensive regulatory regime, government would develop a
national standard with or without regulations and 'no account' would be taken
of industry standards, quality assurance schemes and third party audits.[52]
4.42
Numerous submitters argued that an independent regulator, with recall
powers akin to the system in the US is now needed.[53]
4.43
As previously noted, under the US system, the USFDA is empowered to
require that all animal foods are safe to eat, produced under sanitary
conditions, contain no harmful substances and are truthfully labelled.[54] The US model was repeatedly identified as an example of best practice.[55] Dr Andrew Spanner, for example, noted that the US system, which encompasses a
government regulator and a mandatory recall regime, is effective because
'legislation is there to act as a stick'.[56] He noted that, while the USFDA has the power to prompt product recalls, the mere
existence of a 'watchdog with teeth' has encouraged many companies to
self-initiate recalls of pet food products when deemed a risk to pet safety
before being mandated to do so.[57] He suggested that were a regulator to be established:
The observed 'laissez faire' safety culture in our pet food
industry is also likely to undergo rapid change in the face of a watchdog with
teeth.[58]
4.44
However, the introduction of an FDA-type model in Australia would be
extremely complicated, protracted, and costly with no guarantee of a strong,
workable and effective system. This is because of the division of legislative
authority between the Commonwealth and the states and territories.
4.45
Under the Australian Constitution, legislative authority in Australia is
divided between the Commonwealth and state/territory governments. If a matter
is not one which has been allocated to the Commonwealth under the Constitution,
it is for the states and territories to legislate. The regulation of the
manufacture of pet food appears to fall within state and territory
responsibilities.
4.46
In terms of the practical steps that would be required to establish a
comprehensive regulatory regime, the PFCWG noted that SCoPI endorsement would
be required, together with a commitment for adoption and enforcement of the
national standard and legislative scheme. Furthermore, relevant state and
territory as well as commonwealth requirements for justifiable, proportionate
and effective regulation would need to be met.
4.47
In addition to these steps, for the Commonwealth to be able to regulate
imported pet food beyond quarantine, similar to human food imports, state and
territories would need to agree to refer such powers to the Commonwealth. As
previously noted, this is because the Australian Constitution 'does not provide
any express legislative power for the Commonwealth to engage in such activities'. [59]
4.48
In its submission, the Animal Welfare Coalition WA emphasised the point that
any regulatory framework would be 'only as strong as the resourcing and
conscientiousness put into its enforcement'.[60] The point was made that a key aspect of the system would be the appropriate management
and use of the PetFAST reporting system, including the provision of adequate
funding for investigation. [61] This matter is considered further in Chapter 6.
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