Chapter 4

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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