Australia New Zealand Food Standards Code – Revocation and Transitional Variation 2015 (Proposal P1016 – Hydrocyanic Acid in Apricot Kernels & other Foods)

Overview

The Food Standards Australia New Zealand Amendment (2015 Measures 5) Instrument 2015 (F2015L01913) was enacted to address the risks associated with cyanogenic glycosides in plant-based foods, particularly raw apricot kernels. This legislative instrument amends the Australia New Zealand Food Standards Code by introducing variations to Standards 1.1.1, 1.1.2 and 1.4.4. The Food Standards Australia New Zealand Act 1991 mandates the Authority to develop and vary food regulatory measures, and this instrument is the result of Proposal P1016, which was considered in line with the specified procedures in the FSANZ Act. Following the approval of the proposal by the Australia and New Zealand Ministerial Forum on Food Regulation, the Authority published a notice about the draft variations as required by section 92 of the FSANZ Act. The instrument aims to prohibit the retail sale of raw apricot kernels and restrict their use as an ingredient due to the potential health risks, and it is exempt from parliamentary disallowance and sunsetting provisions.

Scope and Application

The Food Standards Australia New Zealand Act 1991 authorises the development and variation of standards within the Australia New Zealand Food Standards Code, and the Authority has the responsibility to consider proposals for these variations. The Authority has prepared Proposal P1016 to address the risks associated with cyanogenic glycosides in plant-based foods, specifically targeting raw apricot kernels due to their potential health risks. The Authority has approved draft variations to Standards 1.1.1, 1.1.2, and 1.4.4, which include a prohibition on the retail sale of raw apricot kernels and restrictions on their use as an ingredient, unless they have undergone processing or treatment to render them safe for consumption. These variations follow a consultation process and the preparation of a Regulation Impact Statement due to the potential impacts on businesses and individuals. The legislative instrument is exempt from compatibility with human rights requirements as it is a non-disallowable instrument under section 94 of the FSANZ Act. The variations are applicable to all entities involved in the sale or use of raw apricot kernels as an ingredient in food products within Australia and New Zealand, and they do not incorporate any documents by reference.

Key Provisions

The Food Standards Australia New Zealand (FSSANZ) Act 1991 provides the legislative framework within which the Authority operates. Section 13 of the Act (1) outlines the Authority's role in developing standards and variations for the Australia New Zealand Food Standards Code. Pursuant to this, Division 2 of Part 3 of the Act (2) specifies the procedure for considering proposals for food regulatory measures. In this instance, Proposal P1016 (3) was prepared by the Authority to address the risks associated with cyanogenic glycosides in plant-based foods, leading to the approval of draft variations to Standards 1.1.1, 1.1.2, and 1.4.4. These variations, once published under section 92 (4) of the Act, become legislative instruments but are not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003 (5). The primary obligation of the Authority, as per the Act, is to ensure that the standards and variations developed are in the interest of public health and safety. This includes conducting thorough assessments, preparing draft variations, and consulting with relevant stakeholders. The Authority must also consider the potential impacts on business and individuals, as stipulated in section 92 (6) of the Act. Public consultation is a critical part of this process, allowing stakeholders to provide feedback on draft variations. The Authority's approval of the draft variations to Standards 1.1.1, 1.1.2, and 1.4.4 is a direct response to the identified risks of raw apricot kernels, ensuring that the measures align with the overarching goal of protecting public health. The variations to the food standards impose specific prohibitions and restrictions. Under the new provisions, the retail sale of raw apricot kernels is prohibited (7). This prohibition extends to the use of raw apricot kernels as an ingredient in food products, unless expressly permitted by the Code. The definition of a raw apricot kernel, as included in the variation to Standard 1.1.2 (8), encompasses any form of the kernel, whether hulled, dehulled, blanched, or otherwise processed. However, the variation to Standard 1.4.4 (9) allows for the use of raw apricot kernels if they have undergone a treatment that makes them safe for consumption. This ensures that the prohibition does not impede the use of safely processed apricot kernels in food products. In terms of compliance and enforcement, the Act does not specify any civil or criminal penalties for breaches of the new standards. However, non-compliance with the provisions could result in actions such as fines, legal proceedings, or other regulatory actions under relevant state or territory laws. The Authority may also take enforcement actions to ensure that businesses and individuals adhere to the new standards, thereby protecting public health and safety. The legislative instrument itself, once published, carries the force of law, and any breaches could lead to legal consequences under the FSANZ Act or other applicable legislation.