Studd and Secretary to the Department of Agriculture, Fisheries a Nd Forestry
[2003] AATA 897
•12 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 897
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/778
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM STUDD Applicant
And
SECRETARY TO THE DEPARTMENT OF AGRICULTURE, FISHERIES & FORESTRY
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Mr C. Ermert, Member
Associate Professor J.H. Maynard, MemberDate12 September 2003
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) Joan Dwyer
Senior Member
IMPORTED FOOD CONTROL – whether Roquefort cheese manufactured from raw milk in France according to French legislative requirements is a “failing food” under the Imported Food Control Act 1922 – which standard from the Food Standards Code is the “applicable standard” for that food – whether standard 1.6.2 applies to milk or milk products used to manufacture cheese when that cheese is to be imported into Australia – whether it applies only to cheese manufactured in Australia – meaning of words Australia only in heading to that standard – whether process of heating raw milk to 32oC and maintaining at that temperature for 3 hours with the addition of mesophile and thermophile lactic cultures satisfies the alternative requirement in standard 1.6.2 clause 2(a) that the milk be “heat treated by using a time and temperature combination providing an equivalent level of bacteria reduction” to pasteurisation – decision affirmed
Imported Food Control Act 1922 ss 3(1), 14(1), 42
Goodwin v Phillips (1908) 7 CLR 1 at 14
REASONS FOR DECISION
12 September 2003 Mrs Joan Dwyer, Senior Member
Mr C. Ermert, Member
Associate Professor J.H. Maynard, MemberINTRODUCTION
1. The issue in this matter is whether Roquefort cheese (“Roquefort”) manufactured in France and imported into Australia meets the applicable standards under the Imported Food Control Act 1922 (“the Act”).
2. The Roquefort in issue was imported into Australia by Mr Studd on 12 January 2002. Mr Studd, in an email message to an officer of the Australian Quarantine Inspection Service (“AQIS”) of 18 December 2001 advised that he had decided to import the cheese to obtain a decision as to whether cheeses made from raw milk complied with the then current regulations governing the entry of foods into Australia. The Roquefort has been held by AQIS since 18 January 2002.
3. It is not in issue that the Roquefort was produced in France under strict controls by the only accredited producer of Roquefort, Les Fromageries Occitane (“LFO”). Mr Studd’s application is supported by the Commercial Counsellor at the French Embassy. Nor is there any issue as to the safety of the Roquefort. It has not been analysed and, as Mr Studd wrote in his message of 18 December 2001, is sold in almost every country of the world except Australia and New Zealand. The issue before the Tribunal is a legal one as to the interpretation of standards for foods imported into Australia.
FORMAL MATTERS
4. The application before the Tribunal is made under s 42 of the Act. It seeks review of a reviewable decision made by a delegate of the respondent on 21 June 2002 affirming an initial decision made 20 May 2002.
5. Mr Jolson QC appeared with Mr Preston, a solicitor, for Mr Studd. Mr Murphy of Counsel, appeared for the respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) together with the exhibits tendered during the hearing. The applicant’s exhibits included a report by Dr Brooke-Taylor, dated 31 October 2002 (A1). Dr Brooke-Taylor practices as a Food Regulatory Affairs and Compliance Systems Consultant. The respondent’s exhibits included reports from Mr Liehne, The General Manager, Standards, at Food Standards Australia, New Zealand (R1) and also a report from a food scientist, Dr Desmarchelier (R2), who is Senior Principal Research Scientist at Food Science Australia. Evidence was given by Mr Studd and by Dr Brooke-Taylor for the applicant, and by Dr Desmarchelier for the respondent.
6. In a directions hearing, prior to the hearing of the matter, the Tribunal indicated that it considered this would be an appropriate matter in which to have concurrent expert evidence. Arrangements were accordingly made for the two experts, Dr Brooke-Taylor and Dr Desmarchelier to give evidence at the same time. Before giving evidence they had the opportunity to speak together to see if they could identify the matters on which they agreed, and the issues that were in dispute between them.
7. The Imported Food Control Scheme is clearly described in the reviewable decision of the delegate of the respondent at T2 paras 3.1 to 3.6.
3.1The Act provides for a Food Inspection Scheme that sets in place point of entry inspection procedures for imported foods. The purpose of the Act is to ensure that imported foods meet the same Australian food standards as local products.
3.2Subsection 3(1) of the Act provides that a food is a failing food if, as a result of an inspection, or inspection and analysis under the Food Inspection Scheme, it does not meet the applicable standards for that food.
3.3The applicable standard, in relation to a particular food is defined in subsection 3(1) to mean the national standard in force in relation to that food at that time. National standard is in turn defined in relation to a particular food to mean a standard relating to that food:
“(a)that is in force as a standard adopted by the Australian New Zealand Food Standards Council; or
(b)that is included in the Australian New Zealand Food Standards Code.”
3.4Subsection 3(1) provides that the FSC has the same meaning as in the Food Standards Australia New Zealand Act 1991.
3.5Standard 1.6.2 of volume 2 of the FSC sets out the processing requirements for food regulated in Chapter 2 of the Code. Cheese is a food regulated in Chapter 2 of the Code (see standard 2.5.4).
3.6After food that is required to be inspected, or inspected and analysed, has been so inspected, or inspected and analysed, an authorised officer must issue a written advice stating whether the whole or part of the food dealt with in the advice is failing food, and how the food is to be dealt with.
8. Food is inspected at the point of entry into Australia. Section 14(1) of the Act provides:
14 Imported food inspection advice
(1)After food that is required to be inspected, or inspected and analysed, has been so inspected, or inspected and analysed, an authorised officer must issue a written advice:
(a)to the owner of the food; and
(b)if the food is under Customs control - to the person having possession of the food at the time;
stating:
(c)whether the whole or a part of the food dealt with in the advice is identified as failing food; and
(d)in respect of food that is so identified - how the food is to be dealt with.
Section 3(1) of the Act defines the term “failing food” as follows:
failing food means examinable food, that:
(a)as a result of an inspection, or inspection and analysis, under the Food Inspection Scheme, is found to be:
(i)food that does not meet the applicable standards for that food; or
(ii)food that poses a risk to human health; or
(b)is taken, under the provisions of the Scheme, to be such food;
The Act in s 3(1) also contains the following relevant definitions:
applicable standard, in relation to particular food, or a particular matter affecting food, at a particular time, means the national standard in force in relation to that food or matter at that time;
national standard, in relation to a particular food or a particular matter affecting food, means a standard relating to that food or matter:
(a)that is in force as a standard adopted by the Australia New Zealand Food Standards Council; or
(b)that is included in the Australia New Zealand Food Standards Code;
Australia New Zealand Food Standards Code has the same meaning as in the Food Standards Australia New Zealand Act 1991.
9. The respondent submits that the relevant standard is clause 2 of standard 1.6.2 (T37 p118). Standard 1.6.2 is headed “Processing Requirements”. It provides, so far as relevant, as follows:
2.Processing of cheese and cheese products
Milk and milk products used to manufacture cheese or cheese products must –
a)be heat treated by being held at a temperature of no less than 72ºC for a period of no less than 15 seconds, or by using a time and temperature combination providing an equivalent level of bacteria reduction; or
b)be heat treated by being held at a temperature of no less than 62ºC, for a period of no less than 15 seconds, and the final product stored at a temperature of no less than 2ºC for a period of 90 days from the date of manufacture of the cheese or cheese product.
Although standard 1.6.2 has been amended since 13 December 2002 the form it took at the relevant time is as set out above.
THE ISSUES
10. There is no dispute between the parties as to the fact that the milk used in producing Roquefort is not heat treated in either of the ways specified in paragraphs (a) and (b) of standard 1.6.2. The evidence is that raw milk used to produce Roquefort is maintained at a temperature of 32oC for three hours. Mesophile and thermophile lactic cultures are added to the milk while it is at 32oC.
11. The issues raised by the applicant were conveniently characterised in the respondent’s Outline of Submissions at paragraph 4 as “the coverage question” and “the heat treatment question”. They are as follows:
(i)with what standard must Roquefort comply if it is to be imported into Australia for sale? (“the coverage question”)
(ii)If the correct standard is 1.6.2 does Roquefort comply with the alternative requirement in standard 1.6.2 clause 2(a)? (“the heat treatment question”)
THE COVERAGE QUESTION
12. The applicant contends that the appropriate standard is not that in standard 1.6.2 which it submits applies only to the importation of milk and milk products intended to be used for the manufacture in Australia of cheese or cheese products. It contends that the appropriate standard is standard 1.6.1 “Microbiological Limits for Food” which sets out “maximum permissible levels of food borne microorganisms that pose a risk to human health in nominated foods and classes of foods” (A4). The applicant points to the Schedule to standard 1.6.1 as supporting its argument. The Schedule includes microbiological requirements applicable to “All raw milk cheese (cheese made from milk not pasteurised or thermised)”.
13. Mr Studd in his email to AQIS of 18 December 2001 (T3 p16) put his argument as follows:
As we have discussed the issue of raw milk cheese is covered by both the pre December 2000 (old code) and the new ANZFA Food Standards Code.
The Code (both “old” and “new”) does not state that cheese, in order to comply with the prescribed Standard, cannot be made from raw milk. Instead, it provides for the heat processing of milk used in cheese manufacture. The distinction is important, because a compositional standard that applies to cheese can be enforced at a border inspection or at time of sale, whereas a processing standard relating to the treatment of an ingredient in the cheese cannot.
Therefore the question is whether the cheese itself, at point of import or sale in Australia, complies with the laws and standards relating to cheese.
The microbiological standards for raw milk cheese are expressly set out in the Schedule to standard 1.6.1. Provided these microbiological requirements are met, and the remaining compositional and labelling requirements are met, there does not appear to be anything in the Food Standards Code to preclude the importation or sale of raw milk cheese.
The importation of raw milk cheese made overseas does not appear to be prohibited, provided –
(a)an Import Permit is obtained from AQIS;
(b)the food meets the microbiological specifications in Standard 1.6.1;
(c) the food has been manufactured, handled, transported and stored in accordance with an appropriate food safety plan; and
(d) the food is labelled with appropriate directions to ensure that it can be consumed safely.
14. The applicant’s case is supported by the French Embassy, which, on 30 January 2002 (T12 pp26-30) wrote to the Executive Director of AQIS, asking why the Roquefort was being withheld and pointing out that there had been approval for the importation by AQIS, which had issued a permit on the basis of government approval from France, the exporting country. In that letter the French Commercial Counsellor set out what he claimed to be the relevant standards from the Food Standards Code (“the FSC”) with his comments.
15. The Commercial Counsellor pointed to standard 2.5.4 as shedding some light on the way in which standards 1.6.1 and 1.6.2 should be read. The request of the Commercial Counsellor was that microbiological tests be performed on the cheese to ascertain whether it conforms to the requirements in standard 1.6.1. He asked the rhetorical question (T12 p29):
If the purpose of the IFIP [Imported Foods Inspection] program truly is to protect the Australian consumer while at the same time remaining as far as is safe open to trade, it can do no better than to test the product. Why is this step being put off, when it is essential in order to establish conformity with the Food Standards Code ?
16. In order to understand the submissions for the applicant it is necessary to reproduce relevant parts of standard 1.6.2 as it appears in the FSC. It is as follows:
Standard 1.6.2
Processing Requirements
(Australia Only)
Purpose
This Standard sets out the requirements for processing of foods regulated in Chapter 2 of this Code. This Standard does not apply to food produced in, or imported into, New Zealand.
Table of provisions
1Processing of milk and liquid milk products
2Processing of cheese and cheese products
. . .
Clauses
1Processing of milk and liquid milk products
(1)Milk must be pasteurised by –
(a)heating to a temperature of no less than 72oC and retaining at such temperature for no less than 15 seconds and immediately shock cooling to a temperature of 4.5oC; or
(b)heating using any other time and temperature combination of equal or greater lethal effect on bacteria;
unless an applicable law of a State or Territory otherwise expressly provides.
(2)Liquid milk products must be heated using a combination of time and temperature of equal or greater lethal effect on the bacteria in liquid milk that would be achieved by pasteurisation or otherwise produced and processed in accordance with any applicable law of a State or Territory.
Editorial note:
For the purposes of clause 1 of this Standard, milk and liquid milk products includes milk and liquid milk products used in the production of any cream and cream products, fermented milks, yoghurt, dried, condensed and evaporated milks, butter and ice cream.
Editorial note for New Zealand:
For New Zealand purposes, processing requirements for milk and milk products are regulated under the Dairy Industry Act 1952 and the Food Act 1981.
2Processing of cheese and cheese products
Milk and milk products used to manufacture cheese or cheese products must –
(a)be heat treated by being held at a temperature of no less than 72oC for a period of no less than 15 seconds, or by using a time and temperature combination providing an equivalent level of bacteria reduction; or
(b)be heat treated by being held at a temperature of no less than 62oC, for a period of no less than 15 seconds, and the final product stored at a temperature of no less than 2oC for a period of 90 days from the date of manufacture of the cheese or cheese product.
Editorial note:
Processing requirements for milk and milk products used in the production of raw Swiss cheeses are contained in Standard 2.5.4
Editorial note for New Zealand:
For New Zealand purposes, processing requirements for cheese and cheese products, other than raw Swiss cheese, are regulated under the Dairy Industry Act 1952 and the Food Act 1981.
17. Mr Jolson submitted that standard 1.6.2 does not apply to imported cheese. It is clear from looking at it as a whole that clause 1 deals with processing of milk and liquid milk products and clause 2 deals with processing of cheese and cheese products.
18. Mr Jolson submitted that clause 2 applied to Milk and Milk products used to manufacture cheese or cheese products in Australia only, on the basis of the words “(Australia Only)” under the ruled line of the heading.
19. Mr Murphy submitted that those words indicate that standard 1.6.2 of the Code, which is a national Standard and primarily a Code applicable to Australia and New Zealand, does not apply to New Zealand. That is of course what is indicated by the Editorial Notes to clauses 1 and 2, but Mr Jolson submitted that they are not part of the Standard and should not be used as an aid to construction.
20. We have concluded that we accept the respondent’s submission on this matter. The Act incorporates, as the “applicable standard” in relation to imported foods, the “national standard” in relation to that food. In relation to standard 1.6.2 the “national standard”, as stated in the paragraph headed “Purpose”, does not apply to food produced in, or imported into New Zealand. We consider the implication is clear that it does apply to food produced in or imported into Australia. We reach that conclusion from the words of the Standard itself. The Editorial notes are consistent with the meaning given by the words of the Standard.
21. We find that clause 2 of standard 1.6.2 does apply to processing of cheese and cheese products produced in or imported into Australia.. Thus the Act requires that the Roquefort comply with standard 1.6.2.
22. We also reject the applicant’s submission that the purpose of standard 1.6.1 “Microbiological Limits for Food” is that it be used in substitution for standard 1.6.2, in relation to imported cheese. Its purpose is stated to be:
Purpose
This Standard lists the maximum permissible levels of foodborne micro-organisms that pose a risk to human health in nominated foods, or classes of foods. This Standard includes mandatory sampling plans, used to sample lots or consignments of nominated foods or classes of foods, and the criteria for determining when a lot or consignment of food poses a risk to human health and therefore should not be offered for sale, or further used in the preparation of food for sale. The microbiological standards included in the Schedule to this Standard are applicable to the foods listed in the Schedule.
23. That explanation indicates that standard 1.6.1 would be used when sampling locally produced or imported cheese which did comply with standard 1.6.2, as part of a mandatory sampling plan. Or it would be applicable when lots or consignments of foods are being sampled, perhaps when an issue has arisen as to whether a lot or consignment poses a risk to human health.
24. Mr Studd pointed out in correspondence with AQIS (T17, pp 46-48), that if standard 1.6.2 were applicable to imported cheeses, then it would also have to apply to cheeses specified in standard 2.5.4 and that would render standard 2.5.4 ineffectual.
25. Standard 2.5.4 (T38 p120-121) is headed “Cheese”. It states:
Purpose
This Standard defines cheese and sets compositional requirements for that product. The Standard also defines processed cheese. Processing requirements for cheese are contained in Standard 1.6.2.
Table of Provisions
1 Interpretation
2 Composition of cheese
3Processing of milk and milk products used to produce Gruyere, Sbrinz or Emmental cheese
4Processing of milk and milk products in New Zealand
Clauses 3 and 4 provide:
3Processing of milk and milk products used to produce Gruyere, Sbrinz or Emmental cheese
Milk and milk products used to manufacture cheese or cheese products specified in Column 1 of the Table to this clause must be produced and processed using a method that –
(a)ensures that the cheese produced achieves an equivalent level of safety protection as cheese prepared from milk or milk products that have been heat treated in accordance with paragraph (2)(a) in Standard 1.6.2; and
(b)is set out in the legislation or documentation listed in Column 2 of the Table to this paragraph.
Table to clause 3
Column 1
Milk and milk products
Column 2
Legislation or documentation
Milk and milk products used to produce Gruyere, Sbrinz or Emmental cheese only
The Ordinance on Quality Assurance in the Dairy Industry of the Swiss Federal Council of 18 October 1995
Editorial note
(1) From raw material production to the point of consumption, the milk, milk products and products containing milk or milk products should be subject to a combination of control measures, which may include, for example, pasteurisation, and these should be shown to achieve the appropriate level of public health protection.
(2) Legislation or documentation will only be listed in the Table to clause 3 if it incorporates or provides for methods which provide a level of safety protection equivalent to that provided by a process that includes treatment of the milk or milk product in accordance with paragraph 3(a), and has adequate hazard identification and process controls.
4Processing of milk and milk products in New Zealand
Milk and milk products produced in New Zealand must be processed in accordance with the Food Regulations 1984, made from time to time for the purpose of regulating the processing of milk and milk products.
Editorial note
For New Zealand purposes, processing requirements for milk and milk products are presently regulated under the Dairy Industry Act 1952 and the New Zealand Food Regulations 1984. New Zealand is currently formulating a mandatory standard for the processing of milk and milk products for application to this Food Standards Code.
26. It was common ground that clause 3 of standard 2.5.4 was intended to provide an alternative processing requirement for specified imported raw milk cheeses where it is established that they have been produced under strict legislative or documented controls which provide an equivalent level of public health protection to pasteurisation. It was also common ground that Roquefort is not specified under clause 3 although it is produced in France under a strictly controlled process in accordance with French legislation. An application would need to be made and investigations would be required before Roquefort could be added to the Table to clause 3.
27. Clause 3(a) of standard 2.5.4 on its terms does not require compliance with clause 2(a) of standard 1.6.2, but instead allows for the specified cheeses to which it applies to be produced in or imported into Australia if they are produced and processed using a method that ensures an equivalent level of safety protection as cheese prepared from milk products that have been heat treated in accordance with paragraph 2(a) in standard 1.6.2.
28. Mr Studd pointed out in correspondence with AQIS that there was no express statement in either standard 1.6.2 or 2.5.4 that the cheeses specified in clause 3 of 2.5.4 did not need to comply with standard 1.6.2. Minter Ellison, lawyers, advised AQIS that they agreed with Mr Studd. They wrote, at T19 pp52-3, at paragraph 3:
3.Regarding the application of standard 1.6.2 to the raw Swiss cheeses referred to in standard 2.5.4, we agree with Mr Studd’s argument. There is in fact nothing in either standard 1.6.2 or standard 2.5.4 which expressly exempts the raw Swiss cheeses from having to comply with standard 1.6.2. There is an editorial note to this effect however this does not form part of the Code.
It is our understanding this is a drafting oversight however as Mr Studd points out, to subject the raw Swiss cheese in standard 2.5.4 to standard 1.6.2 would be a ridiculous outcome. For this very reason, the rules of statutory interpretation, in particular the ‘nonsense rule’, are likely to result in the Code being interpreted so as to exempt the raw Swiss cheeses from standard 1.6.2, as appears to have been intended.
In the event however that raw Swiss cheeses were found by a court based on the current wording of the Code not to be exempt from standard 1.6.2, then those cheeses, like the Roquefort cheese, would be subject to standard 1.6.2. Such an outcome does not support Mr Studd’s interpretation of standard 1.6.2. It simply points out a drafting defect in respect to standard 2.5.4. It also lends support to our interpretation that standard 1.6.2 applies to Roquefort cheese. Raw Swiss cheeses would not meet the standard in clause 2 of standard 1.6.2 and it is for this reason they have been dealt with separately under standard 2.5.4. If Mr Studd’s interpretation of standard 1.6.2 were correct, there would be no need to refer to the Swiss cheeses in standard 2.5.4.
29. It is not necessary for us to decide that issue as clause 3 of standard 2.5.4 does not refer to Roquefort. However it is our view that there is a clear implication from the express words in clause 3(a) of standard 2.5.4 which refer to “an equivalent level of safety protection as cheese prepared from milk or milk products that have been heat treated in accordance with paragraph 2(a) in standard 1.6.2”, that the specified cheeses do not have to satisfy clause 1.6.2. It appears to us that the later standard (2.5.4) is more specific in dealing with specified named cheeses and that as it is later and more specific it prevails where there is an inconsistency between it and standard 1.6.2. We refer to the principle explained by O’Connor J in Goodwin v Phillips (1908) 7 CLR 1 at 14:
Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.
That approach applies to both inconsistent Acts and inconsistent sections of the one Act. (See Pearce and Geddes Statutory Interpretation in Australia 5th edition paras 7.18 and 4.30). It is our view that it is also applicable to the relevant Standards so that standard 1.6.2, in so far as it is inconsistent with the special provision for raw milk cheeses specified in Column 1 of the Table to clause 3 of standard 2.5.4, does not apply in relation to those specified cheeses.
30. We find that standard 1.6.2 does apply to Roquefort imported into Australia, as it is not a cheese specified in the Table to clause 3 of standard 2.5.4.
The Heat Treatment Question
31. The T documents (T21 pp62-67) contain a document prepared by Mr Place the Quality Director of LFO, the manufacturer of the Roquefort. It states at p63
Characteristics of the product
This product is made from raw ewe’s milk.
The selected milk (see above) is heated to 32ºC and maintained at this temperature (addition of mesophile and thermophile lactic cultures) for 3 hours (see flow-chart). T21p63
32. The document sets out the results of testing of bacteria in the finished Roquefort and concludes that it establishes that after ripening there is no longer presence of Listeria monocytogenes (except for one case during the study), Salmonella disappears and there are almost 0 (nil) E coli and Staphylococcus.
33. On the basis of that information the Commercial Counsellor of the French Embassy wrote to the Executive Director of AQIS 2 April 2002 (T23 p72) stating:
The milk used in the manufacture of Occitane Roquefort cheese, as declared by the manufacturer and in accordance with French legislation (refer to documents enclosed), has been heat treated by a time and temperature combination of 32ºC for 3 hours. Therefore, according to ANZFA’s Food Standard 1.6.2, all that remains to be shown is that the particular time and temperature combination used has provided an equivalent level of bacterial reduction. As stated in the conclusion to your letter (point no 27) “to comply with the requirement of the IFC Act, Roquefort cheese must satisfy the requirements of standard 1.6.2 of the Food Standards Code. This standard requires the milk used in the production of the cheese to have undergone a heat treatment in one of the three forms specified.” I hope we can now pass on to the stage of finding out scientifically whether the consignment of Occitane Roquefort cheese is bacterially equivalent.
34. On 31 May 2002 AQIS replied (T30 p99):
While it is accepted that the cheese had been subjected to a time and temperature combination for the purposes of clause 2(a) of Standard 1.6.2 of the Food Standards Code Volume 2, AQIS, following consultation with the Australian New Zealand food Authority, is of the view the time and temperature combination would not achieve the required bacterial reduction. Therefore the cheese consignment has been deemed as a failing food and must be either: destroyed, re-exported or downgraded to a use other than for human consumption.
35. That response seems unsatisfactory. It if were accepted that the cheese had been subjected to a time and temperature combination, surely, as the French Commercial Counsellor had suggested in his letter of 2 April 2002, the next step was to move to scientific testing to ascertain whether the heat treatment used a time and temperature combination “providing an equivalent level of bacteria reduction”. However Mr Murphy said that the letter T30 p99 was not correct, in that the respondent does not accept that there has been “heat treatment”, as that term is used in clause 2(a) of standard 1.6.2, of the milk or milk product used to manufacture Roquefort (transcript p116).
36. Mr Murphy in paragraph 20 of the respondent’s outline of submission, set out the alternative test in paragraph 2(a) of standard 1.6.2 as follows:
Milk and milk products used to manufacture cheese products must-
(a) be heat treated
by being held at a temperature of no less than 72degrees C for a period of no less than 15 seconds, orby using a time and temperature combination providing an equivalent level of bacteria reduction;
37. Mr Murphy explained:
It is submitted that this is the only sensible grammatical construction of the alternative treatment obligation. The term “be heat treated” governs both the first alternative, and the second alternative. This is thus a composite phrase which encompasses two expressions, namely “heat treatment” and “time and temperature combination” both of which have a recognised scientific or technical meaning.
Those two expressions must be combined with the requirement that the “milk…used to manufacture cheese…”
When the provision is considered as a whole it imposes what is a manufacturing or processing requirement which is clear to the reader of the Code. It means that the milk used must be heat treated by a time and temperature process akin to pasteurisation before it is used in the cheese making process.
Such an interpretation is the plain meaning of the clause in its context, but also such an approach is sensible and reasonable, particularly given that such a construction would promote the object of the IFC Act, which is to lay down standards for imported food. The issue becomes: was the milk used to manufacture the cheese the subject of heat treatment as required?
38. We agree that the construction contended for by Mr Murphy is grammatically correct and that the alternative test in paragraph 2(a) is as he contended. Thus the issue is as set out by Mr Murphy, whether the milk and milk products used to manufacture Roquefort are “heat treated” by using a time and temperature combination providing an equivalent level of bacteria reduction to pasteurisation. The evidence established that heat treatment by being held at a temperature of not less than 72ºC for a period of no less than 15 seconds is the process of pasteurisation.
39. The Tribunal was assisted by expert evidence as to the issue of whether the manufacturing process for Roquefort satisfies the second limb of the test in paragraph 2(a) of standard 1.6.2.
40. Dr Brooke-Taylor and Dr Desmarchelier are both extremely well qualified in the field of food safety standards. Dr Brooke-Taylor was employed by the National Food Authority which became the Australian New Zealand Food Authority (“ANZFA”) from 1991 to the end of 2000. For the last four years of that employment he was the program manager for food standards, and was responsible for the review of product standards. He said he was directly involved in the review that resulted in the reference to Swiss cheese in standards 1.6.2 and 2.5.4.
41. Dr Desmarchelier has worked in the area of public health and food born disease and food microbiology for 30 years. She has been with Food Science Australia (“FSA”) since 1995. She is now a Senior Principal Research Scientist at FSA and is also an Associate Professor, Adjunct appointment, at the Department of Microbiology and Parasitology, University of Queensland. She has experience teaching in areas of public health microbiology and in the areas of food hygiene and safety. She and her section at FSA were involved in the risk assessments of the Swiss cheese mentioned in the Table to clause 3 of standard 2.5.4.
42. Dr Brooke-Taylor said that to hold milk at 72º for 15 seconds is a classic pasteurisation process but you could achieve the same effect by holding milk for longer times at lower temperatures or for shorter times at higher temperatures. He said there are also other processes that would achieve a reduction in bacterial content of milk such as ultra filtration, which is the application of pressure heating combined with passing electric current through a product.
43. Dr Brooke-Taylor explained the process described in paragraph (b) of clause 2 as follows (trans. p34):
…that is a process that doesn’t achieve a kill effect with the heat temperature but also then relies upon the storage of the cheese at a temperature of no less than 2 degrees C for 90 days. So you achieve the bacterial reduction in part through the maturation process.
44. Dr Brooke-Taylor explained (trans. p34):
…indeed in the case of the Swiss cheeses, although there is no specific heating process like pasteurisation, the combination of the whole process involves holding the cheese at different temperatures initially …... to culture to grow later during maturation and you could interpret it also to apply to the time temperature processes involved in the overall cheese making process.
45. It was Dr Brooke-Taylor’s opinion, having considered the production process of the Roquefort from LFO annexed to his report (trans. p34):
…that the LFO Roquefort process achieves equivalent outcomes to pasteurisation by a combination of time and temperature processes including selection of milk, heat treatment, acidification, salting and maturation in the presence of competing micro organisms.
46. When asked to explain that conclusion Dr Brooke-Taylor said (trans. pp3536):
…it is apparent, as I have stated in my report, there is no single process that you can say this is a pasteurisation step that is applied, so I tried to take two markers. One to say, well, if we start with milk what is the bacterial count at the end of the cheese making process and what would be an acceptable count in terms of my comparison with the milk or cheese where the milk had been subject to the process set out in the standard and by that I took as a point of reference standard 1.6.1, which is the microbiological requirements, and also a guideline document produced by ANZFA for bacteria, non pathogenic bacteria for spoilage or quality indicators - - -
And then I looked at the outcome of the Roquefort process as reported by LFO and also looked at the results they provided of some challenge studies they had undertaken at the Pasteur Institute and on the basis of that concluded that it was quite feasible that they could achieve the sort of standards that were being required in standard 1.6.1 and so that is one measure concluded that the entire process of Roquefort cheese making could be considered to be equivalent in terms of bacterial reduction to a single heat treatment.
47. Dr Brooke-Taylor acknowledged that as clause 2 paragraph (a) requires that the milk or milk products used to manufacture cheese “be heat treated”, there is a point in the manufacturing process where milk curds change from a milk product to a cheese. He said if you accept that under the Roquefort definition the cheese only becomes a Roquefort “once it has been through the entire process as laid down” then the milk products are heat treated as required (transcript p36). He concluded (trans. p36):
So up to that very last point it is still a milk product, certainly in the concept of the Roquefort cheese.
48. The second measure Dr Brooke-Taylor used was he said, a general safety issue as to whether Roquefort presented any greater risk in terms of food born illness than cheeses being made in Australia with pasteurised milk. On that test he concluded that it was “entirely possible” (trans. p37) that Roquefort could achieve an equivalent level of safety.
49. As already mentioned Dr Brooke-Taylor and Dr Desmarchelier had discussed their different conclusions before giving evidence. When Dr Brooke-Taylor was asked to explain what he understood to be the difference in opinion between him and Dr Desmarchelier he said (trans. p37):
Our discussion to some extent hinges on the interpretation of clause 2, part A of 1.6.2 as to what the code intends when it talks about by using a time temperature combination. If you limit yourself to a very specific meaning that it implies a heat treatment then we would both be in full agreement that there is [no] like pasteurisation step or single kill step applied to the cheese. When we went, I guess, explored beyond that I think we were somewhat constrained by what we saw as a legal interpretation and we weren’t possibly able to go beyond that. But I think there was certainly agreement that other processes such as that used for the Swiss cheeses and possibly the Roquefort process could achieve equivalent levels of safety and I won’t speak for [Dr] Desmarchelier and what her views on that were. (emphasis added)
50. Dr Brooke-Taylor explained to the Tribunal that in forming his opinion he had taken into account the special provision in respect of Swiss cheeses in standard 2.5.4 and took it as a precedent that, if those cheeses are allowed, “you had to take a broader interpretation of 2(a) than perhaps the strict scientific … text book interpretation” (trans. p39).
51. In answer to questions from Mr Murphy, Dr Brooke-Taylor agreed that when food scientists use the words “heat treatment” they are referring to a process designed to achieve a bacteria reduction.
52. Dr Brooke-Taylor said that the distinction between thermalisation as described in paragraph 2(b) of standard 1.6.2 and pasteurisation is that in thermalisation the reduction in bacteria is not achieved as a result of the pasteurisation temperature but by the maturation process.
53. When Dr Desmarchelier commenced to explain her opinion she made the point that she and Dr Brooke-Taylor agreed that there is no heat treatment in the process for manufacture of Roquefort which would provide bacterial reduction. That is in our view a fair summary of the effect of Dr Brooke-Taylor’s evidence.
54. Dr Desmarchelier also explained that in any event it was not clear from the material provided by LFO that their test results for E coli and salmonella would comply with the requirements of standard 1.6.1. She said you would need more information to determine that issue, for instance you would want to know how many samples were taken per day during the quality control process.
55. Dr Desmarchelier said that to achieve bacteria reduction “by a time and temperature combination” you must keep temperatures above approximately 40ºC, because between about 37º and 40ºC bacteria will multiply rather than reduce. Dr Desmarchelier said, that although 15 seconds at 72ºC is the standard pasteurisation time and temperature combination for pasteurising milk, you could get an equivalent bacteria reduction by heating raw milk to 52ºC and keeping it at that temperature for about eight hours.
56. Dr Desmarchelier did acknowledge that the manufacturing process for Roquefort adds starter cultures which produce acid very quickly and arrest the growth of bacteria which results from holding milk at 32ºC. She said a starter culture is an organism like lactic acid bacteria or streptococci which is not a pathogen to humans and which produces acid thus reducing the pH. That arrests the growth of any pathogens like Staphylococci or E coli.
57. In answer to a question from the Tribunal as to whether processes other than pasteurisation and thermalisation can produce the desired bacteria reduction, Dr Desmarchelier replied (trans. p79):
…quite some time ago when we realised that disease could be transmitted by milk and milk products, pasteurisation was recognised by regulatory authorities and governments that it was a very effective process to be able to reduce that level of illness and it became an accepted procedure. There are now an increasing number of alternative processes. Dr Brooke-Taylor mentioned cold pasteurisation or what we can also refer to as non-thermal pasteurisation, and some of those will be put into practice, but they will also have to go through the same processes using – as an alternative cheese process, that FSANZ at the moment is considering how can we look at those and determine equivalents and then put them into our regulations, and this sort of process is happening at the moment. But the code at present doesn’t accommodate that, but as time is moving on and these alternative processes are being developed, then they will be looked at in that context.
58. Dr Desmarchelier made it clear in her report that she had not tested the level of safety protection offered by Roquefort that was ripened and ready for sale. She wrote in her report at p1:
This assessment applies only to the raw milk used in the manufacture of Roquefort cheese according to the protocol outlined in the report prepared by Dr Brooke-Taylor, 31 October, 3002. No assessment has been made of the level of safety protection offered by the subsequent manufacturing processes to the final product e.g. the effects of curd formation, salting, ripening or maturation.
59. In answer to an invitation from the Tribunal to the expert witnesses to add anything they considered would clarify the evidence, Dr Desmarchelier said (trans. p93):
I think I would just really repeat what was said in the very beginning here, that the way I interpret the code is that there is – at 1.6.2 is there is a heat treatment there. I believe that Roquefort could go through a process similar to the other cheeses and make a submission and might well have the evidence there to suggest that there could be an exemption and that could be included in 2.5.4. It is not to say that Roquefort cheese is not a good safe cheese or whatever but this is according to the code.
60. Dr Brooke-Taylor summed up his opinion as follows (trans. p94):
…I will just quickly come back to a point I made before lunch, when you asked me about how certain I was about the cheese and I perhaps wanted to clarify that what I was trying to get at in my report was looking at the process and saying did I believe the product could meet the standards and I think it is difficult without actually having products you can get results from and I think really what I was perhaps – just to actually clear this, I think really the only way you can tell at the end of the day is to test the product, so I could write a report saying yes, it complies, but the way you clarify at the end is to actually test the product.
CONCLUSION
61. Dr Brooke-Taylor was reluctant to agree with Mr Murphy that the Roquefort manufacturing process which heats the milk to 32ºC and maintains it at that temperature for hours and adds two cultures and then allows it to mature for more than 90 days does not “heat treat” the milk so as to provide an equivalent level of bacteria reduction to pasteurisation. Even though there may be an equivalent level of bacteria reduction at the end of that maturation and ripening process, we have concluded that we cannot characterise that as a process where the milk and milk products used to manufacture cheese are “heat treated by using a time and temperature combination providing an equivalent level of bacteria reduction” to pasteurisation.
62. We have already said that we have accepted the respondent’s submission that the Roquefort is a failing food unless it complies with standard 1.6.2. We also accept the respondent’s submission that the alternative method in clause 2(a) of that standard does still require that the bacteria reduction equivalent to pasteurisation be achieved by a process involving the milk and milk products used to manufacture Roquefort being “heat treated” by using a time and temperature combination providing that level of combination providing that level of bacteria reduction.
63. We find on the evidence that Roquefort manufactured by LFO according to the French legislative requirements does not satisfy the requirement in standard 1.6.2 clause 2(a). Thus it is a failing food.
64. We make no finding as to whether or not Roquefort is “of an equivalent level of safety protection on cheese prepared from milk or milk products that have been treated in accordance with paragraph (2)(a) in standard 1.6.2”.. That test is applicable to cheeses specified in column 1 of the Table of clause 3 of standard 2.5.4. Roquefort is not a cheese specified in that Table. The test applicable to Roquefort is that in clause 2 of standard 1.6.2. The processing of Roquefort does not meet either of the alternatives in clause 2(a) of standard 1.6.2. Nor does it meet the process described in clause 2(b) of 1.6.2.
65. The decision under review will be affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Mr C. Ermert, MemberAssociate Professor J.H. Maynard, Member
Signed: Grace Carney
AssociateDate of Hearing 1 April 2003
Date of Decision 12 September 2003
Counsel for the Applicant Mr H Jolson QC
Solicitor for the Applicant Mr Preston
Counsel for the Respondent Mr D Murphy
Solicitor for the Respondent Minter Ellison
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