Explanatory Statement
1. Authority
Section 13 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act) provides that the functions of Food Standards Australia New Zealand (the Authority) include the development of standards and variations of standards for inclusion in the Australia New Zealand Food Standards Code (the Code).
Division 2 of Part 3 of the FSANZ Act specifies that the Authority may prepare a proposal for the development or variation of food regulatory measures, including standards. This Division also stipulates the procedure for considering a proposal for the development or variation of food regulatory measures.
FSANZ prepared Proposal P1025 to revise the Code. The Authority considered the Proposal in accordance with Division 2 of Part 3 and has approved a draft revised Code.
Following consideration by the Legislative and Governance Forum on Food Regulation[1], section 92 of the FSANZ Act stipulates that the Authority must publish a notice about the standard or draft variation of a standard.
Section 94 of the FSANZ Act specifies that a standard, or a variation of a standard, in relation to which a notice is published under section 92 is a legislative instrument, but is not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003.
2. Purpose
The Authority has approved variations of Chapters 1 and 2 of the Code.
3. Documents incorporated by reference
The variations to food regulatory measures do not incorporate any documents by reference. The variations update some references to documents that are incorporated by reference.
4. Consultation
In accordance with the procedure in Subdivision F of Division 2 of Part 3 of the FSANZ Act, the Authority’s consideration of Proposal P1025 included two rounds of public comment following an assessment and the preparation of a draft Standard and associated reports. Submissions were called for on 23 May 2013 for a 12-week period, and on 10 July 2014 for an eight-week period.
A Regulation Impact Statement was not required, because the proposed variations to the Code are likely to have a minor impact on business and individuals.
5. Statement of compatibility with human rights
This instrument is exempt from the requirements for a statement of compatibility with human rights as it is a non-disallowable instrument under section 94 of the FSANZ Act.
6. Variation (Chapter 2—Food standards for specific foods, Part 3—Fruit and vegetables)
Chapter 2 of the Australia New Zealand Food Standards Code establishes:
- prescribed standards for the purposes of the false description of foods provisions of the application Acts [2]; and
- compositional requirements that are relevant for both the Code[3] and the false description of foods provisions of the application Acts.
Definitions are provided in a Chapter 2 standard, also referred to as a commodity standard, if they can be justified on the grounds of protecting public health and safety, preventing misleading practices or facilitating market access.
Definitions may be included in a Chapter 2 standard to define the scope of the standard and to assist enforcement officers in their assessment of the provisions of the standard; to avoid confusion. When specific definitions are not included in a Chapter 2 standard, enforcement officers and manufacturers may refer to dictionaries for clarification.
Compositional requirements are stated when it is necessary that a food that is sold on the basis that it is a defined food have a particular composition.
Standard 2.3.1 – Fruit and vegetables
New section 2.3.1—1 Name
This section establishes that the instrument is the Australia New Zealand Food Standards Code – Standard 2.3.1 – Fruit and vegetables.
New section 2.3.1—2 Definitions
This section has no operative part. It provides a note reference to the definition of ‘fruit and vegetables’ that is in section 1.1.2—3.
New section 2.3.1—3 Requirement for food sold as fruit and vegetables in brine, etc
This section re-states the current requirement in clause 2 of Standard 2.3.1 that fruit and vegetables in brine, oil, vinegar or water, other than commercially-canned fruit and vegetables, must not have a pH greater than 4.6 when sold.
[1] Previously known as the Australia and New Zealand Food Regulation Ministerial Council
[2] Section 18 of the model food provisions
[3] Section 17 of the model food provisions
Overview
The Australia New Zealand Food Standards Code (Code) was updated in 2015 through the enactment of F2015L00458, a legislative instrument under the Food Standards Australia New Zealand Act 1991 (FSANZ Act). This instrument was developed in response to the need for revisions to the existing food regulatory measures, particularly in relation to compositional standards for fruit and vegetables. The Authority responsible for these revisions is Food Standards Australia New Zealand, which prepared Proposal P1025. Following the statutory process outlined in the FSANZ Act, the Authority approved the draft revised Code, which was then subjected to public consultation. The policy objective of this update is to maintain and enhance public health and safety by ensuring that fruit and vegetables, particularly those preserved in brine, oil, vinegar, or water, adhere to specified compositional standards to prevent misleading practices and facilitate market access.
This instrument amends Chapter 2 of the Code, specifically updating the standards for fruit and vegetables, by re-stating the requirement that these products, when sold in certain preservatives, must not exceed a pH level of 4.6. This change ensures that consumers are not misled about the nature and quality of the products they purchase, while also ensuring that manufacturers adhere to standards that protect public health. The revisions were made following two rounds of public consultation and do not require a Regulation Impact Statement due to their minor impact on business and individuals. This legislative instrument is exempt from the requirement for a statement of compatibility with human rights as it is a non-disallowable instrument under section 94 of the FSANZ Act.
Scope and Application
The Australia New Zealand Food Standards Code – Standard 2.3.1 – Fruit and vegetables applies to entities involved in the production, processing, and sale of fruit and vegetables within the Commonwealth of Australia. This includes manufacturers, processors, wholesalers, and retailers of fruits and vegetables, and covers their storage, transport, and sale practices. The Act sets compositional requirements and standards for the preservation of fruit and vegetables in brine, oil, vinegar, or water, excluding commercially-canned products, ensuring that such products do not have a pH greater than 4.6 when sold. The standards are designed to protect public health and safety, prevent misleading practices, and facilitate market access. The application of the Act is overseen by Food Standards Australia New Zealand (FSANZ), which developed and approved the draft revised Code following public consultations. The Act is a legislative instrument under section 94 of the Food Standards Australia New Zealand Act 1991 and does not require parliamentary disallowance or sunsetting.
Key Provisions
The main operative sections of this legislation pertain to the revisions of food regulatory measures within the Australia New Zealand Food Standards Code (the Code). Specifically, sections 2.3.1–1 to 2.3.1–3 outline the new standards for fruit and vegetables. Section 2.3.1–1 identifies the instrument as the Australia New Zealand Food Standards Code – Standard 2.3.1 – Fruit and Vegetables. Section 2.3.1–2 provides a note referencing the definition of 'fruit and vegetables' that is in section 1.1.2–3. Section 2.3.1–3 reiterates the requirement that fruit and vegetables in brine, oil, vinegar or water, excluding commercially-canned fruit and vegetables, must not have a pH greater than 4.6 when sold. These provisions are intended to ensure the safety and quality of fruit and vegetables sold in Australia and New Zealand.
The obligations and requirements imposed by the Act on the parties or entities it governs include the need for Food Standards Australia New Zealand (the Authority) to develop, propose, and consider variations of food regulatory measures. The Authority is also required to engage in public consultation as part of the proposal consideration process. Under section 92 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act), the Authority must publish a notice about the standard or draft variation of a standard. Additionally, the Authority must ensure that the variations to the Code are compatible with human rights, although this particular instrument is exempt from the requirement for a statement of compatibility due to its non-disallowable nature under section 94 of the FSANZ Act.
In terms of offences, penalties, or consequences for breach, the Act does not explicitly state any criminal or civil penalties for non-compliance with the new standards for fruit and vegetables. However, non-compliance with food safety standards generally can lead to enforcement actions by regulatory authorities, which may include fines, product recalls, and legal proceedings. The severity of these consequences will depend on the nature and extent of the breach, as well as the applicable laws and regulations in each jurisdiction. The FSANZ Act and related legislation outline the enforcement mechanisms and penalties that may be imposed for breaches of food safety standards in Australia and New Zealand.
In summary, the key provisions of this legislation establish new standards for fruit and vegetables within the Australia New Zealand Food Standards Code, impose obligations on the Authority to develop and consider variations of food regulatory measures, and require public consultation as part of the proposal consideration process. While the Act does not explicitly state any criminal or civil penalties for non-compliance with the new standards, non-compliance with food safety standards generally can lead to enforcement actions by regulatory authorities, which may include fines, product recalls, and legal proceedings.