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 2.3.2 – Jam
New section 2.3.2—1 Name
This section establishes that the instrument is the Australia New Zealand Food Standards Code – Standard 2.3.2 – Jam.
New section 2.3.2—2 Definitions
This section has no operative part. It provides a note reference to the definition for ‘jam’ that is set out in section 1.1.2—3. The definition is modified to clarify the role of fruit as the basic ingredient of jam.
New section 2.3.2—3 Requirement for food sold as jam
This section sets out the requirement that a food that is sold as jam must be jam, as defined, and comply with the compositional requirements that are currently in clause 2 of Standard 2.3.2 that if the name of a fruit, or fruits, appears on the label of a package of jam, the food must contain at least 40% that fruit, or fruits, and jam must contain at least 65% water soluble solids.
[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 Food Standards Australia New Zealand Amendment Regulations 2015 were enacted to amend the Food Standards Australia New Zealand Act 1991 (FSANZ Act) by updating and revising the Australia New Zealand Food Standards Code. The primary objective of these amendments is to enhance the clarity and precision of food standards, particularly in relation to the definition and compositional requirements of specific foods, such as jam. The Authority, Food Standards Australia New Zealand, was mandated under section 13 of the FSANZ Act to develop and revise food standards. Following extensive consultation and assessment, the Authority proposed variations to Chapter 2 of the Food Standards Code, which pertain to food standards for specific foods. The Authority followed the procedural requirements outlined in the FSANZ Act, including public consultation, before approving the draft revised Code. These amendments do not incorporate any new documents by reference but update existing references to ensure clarity and consistency. Notably, the 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 2.3.2 – Jam applies to food manufacturers, importers, and retailers who produce, sell, or distribute jam within Australia and New Zealand. This Act concerns the compositional standards for products marketed as jam, ensuring that these products meet specific criteria to maintain consumer safety and prevent misleading practices. The Act's jurisdictional reach extends across both Australia and New Zealand, thereby enforcing consistent standards in both countries. There are no stated exclusions or exemptions in this particular Act, and the compositional requirements for jam are clearly defined to ensure compliance. Any variations to the standards or the implementation of these variations may be extended or restricted through subordinate instruments, ensuring flexibility in application and enforcement as necessary.
Key Provisions
The legislation focuses on the revisions of the Australia New Zealand Food Standards Code, specifically updating Chapters 1 and 2. Section 92 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act) mandates that the Authority must publish a notice regarding the standard or draft variation of a standard (s 92). These standards, or variations of standards, are considered legislative instruments under section 94 of the FSANZ Act, although they are not subject to parliamentary disallowance or sunsetting (s 94). The variations do not incorporate any new documents by reference but update some existing references within the Code.
The Authority has undertaken the necessary procedures, including two rounds of public consultation, to consider Proposal P1025. This process aligns with the stipulated procedure in Subdivision F of Division 2 of Part 3 of the FSANZ Act, which ensures that the Authority considers public submissions before finalizing the draft standards (s 13). As the proposed variations are deemed to have a minor impact, a Regulation Impact Statement was not required. The Authority's actions comply with the requirement to consult with the public and consider their feedback before making any final decisions on the variations.
The legislation imposes several obligations on the Authority and other relevant parties. Firstly, the Authority must prepare a proposal for the development or variation of food regulatory measures, including standards, and follow the stipulated procedures for consideration (s 13). Public consultations must be conducted as specified, providing opportunities for stakeholders to submit their views on the proposed variations (Subdivision F of Division 2 of Part 3). The Authority must also ensure that any new standards or variations are published in accordance with section 92 of the FSANZ Act.
There are no specific offences or penalties mentioned in the explanatory statement for breaches of these provisions. However, any failure to comply with the requirements of the FSANZ Act, including the failure to follow the specified procedures for the development and variation of standards, could potentially lead to legal challenges or other regulatory actions. The legislative instruments created under this Act, while not subject to parliamentary disallowance, are still subject to judicial review, which could result in a finding that the Authority did not comply with the necessary legislative requirements.
Overall, the variations to the Australia New Zealand Food Standards Code, particularly those affecting the standards for jam, are designed to clarify definitions and compositional requirements to better protect public health and safety. The process followed by the Authority ensures that these changes are made transparently and with adequate public consultation, thereby upholding the standards of good governance and regulatory practice.