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 5—Dairy products)
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 2.5.2 – Cream
New section 2.5.2—1 Name
This section establishes that the instrument is the Australia New Zealand Food Standards Code – Standard 2.5.2 – Cream.
New section 2.5.2—2 Definitions
This section has no operative part. It provides a note reference to the definition of ‘cream’ that is now set out in section 1.1.2—3.
New section 2.5.2—3 Requirement for food sold as cream
This provision sets out the requirement that a food sold with the name cream must conform to the definition of cream and satisfy a compositional requirement, in relation to milkfat content.
[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 Amendment Instrument 2015 (F2015L00470) was enacted to revise certain standards within the Australia New Zealand Food Standards Code, specifically addressing the definition and compositional requirements for cream. This amendment was prepared by Food Standards Australia New Zealand (FSANZ) and approved in accordance with the Food Standards Australia New Zealand Act 1991. The purpose of this amendment is to update the relevant standards to ensure clarity and consistency in the definition and standards for cream sold in Australia and New Zealand. The changes were subject to public consultation and were determined to have a minor impact on business and individuals, thus not requiring a Regulation Impact Statement. This legislative instrument, being a non-disallowable one under the FSANZ Act, is exempt from the need for a statement of compatibility with human rights. The variations, particularly those concerning the definition of cream and its compositional requirements, aim to protect public health and safety, prevent misleading practices, and facilitate market access.
Scope and Application
The explanatory statement outlines the Authority's approval of variations to Chapters 1 and 2 of the Australia New Zealand Food Standards Code, focusing on food standards for specific foods, particularly dairy products, under the Food Standards Australia New Zealand Act 1991. This legislation applies to all entities and individuals involved in the production, sale, and regulation of food products within Australia and New Zealand, ensuring that the standards set forth in the Code are adhered to for consumer protection and public health. The Code's standards are enforceable across both nations, but the Act itself is an instrument that does not require parliamentary approval or sunsetting. The variations do not incorporate any new documents by reference but update existing ones to ensure clarity and precision in compositional and definitional standards, particularly for products like cream. The process included public consultation, although a Regulation Impact Statement was deemed unnecessary due to the minor expected impact on businesses and individuals. Notably, this legislation exempts itself from the requirements for a statement of compatibility with human rights due to its status as a non-disallowable instrument.
Key Provisions
The primary operative sections of this legislation concern the variations to the Australia New Zealand Food Standards Code, specifically in Chapter 2, which pertains to food standards for specific foods, and more precisely to dairy products (sections 6 and 7). The main requirement established by this legislation is that any food sold under the name 'cream' must conform to the definition of 'cream' as set out in section 1.1.2-3 of the Code and meet the specified compositional requirement for milkfat content (section 2.5.2-3). Additionally, the legislation mandates the publication of a notice about the standard or draft variation of a standard, in accordance with section 92 of the FSANZ Act (section 1). These variations are not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003 (section 1).
The obligations imposed by this Act primarily rest on food manufacturers, sellers, and enforcement officers. Food manufacturers and sellers must ensure that any product sold as 'cream' conforms to the definition and compositional requirements specified in the Code. This includes adhering to the milkfat content specified in Standard 2.5.2-3. Enforcement officers, on the other hand, are tasked with verifying compliance with these standards to ensure that the public is not misled and that public health and safety are maintained. This involves assessing products against the newly defined standards and taking appropriate action where non-compliance is found.
Breach of the standards and compositional requirements set out in this legislation may have civil or criminal consequences. Although the specific penalties are not detailed within the text, the FSANZ Act generally provides for enforcement actions that can include fines and other penalties. The precise nature and extent of these penalties would depend on the specific circumstances of the breach and the applicable laws in force at the time of the infringement. The seriousness of the breach, including the potential impact on public health and safety, would also be a factor in determining the appropriate penalty.