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 2.5.4 – Cheese
New section 2.5.4—1 Name
This section establishes that the instrument is the Australia New Zealand Food Standards Code – Standard 2.5.4 – Cheese.
New section 2.5.4—2 Definitions
This section has no operative part. It provides a note reference to the definitions for cheese and processed cheese that are now set out in section 1.1.2—3.
New section 2.5.4—3 Requirement for food sold as cheese
This provision sets out the requirement that a food sold as cheese or processed cheese must conform to the definition of ‘cheese’ or ‘processed cheese’, as appropriate.
New section 2.5.4—4 Compositional requirement for tall oil phytosterol esters in cheese
New section 2.5.4—4 sets out the conditions for adding tall oil phytosterols to cheese or processed cheese, currently in clause 3 of Standard 2.5.4.
[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 (F2015L00414) was enacted to address the need for updating and refining standards within the Australia New Zealand Food Standards Code. This legislation stems from the Food Standards Australia New Zealand Act 1991 (FSANZ Act), which grants Food Standards Australia New Zealand (FSANZ) the authority to develop and revise standards and regulations concerning food safety and composition. This particular amendment was introduced to update the standards for specific foods, particularly focusing on dairy products, and was enacted following rigorous consultation processes as stipulated in the FSANZ Act. The policy objective is to ensure that food standards remain current, protect public health, and facilitate market access while preventing misleading practices. The enactment was overseen by the Parliament of Australia, reflecting the legislative intent to maintain high standards in food regulation.
Scope and Application
The legislation in question, F2015L00414, pertains to variations of the Australia New Zealand Food Standards Code, specifically relating to cheese and processed cheese, under the Food Standards Australia New Zealand Act 1991. This Act applies to the Authority, Food Standards Australia New Zealand, which is responsible for developing and varying food regulatory measures, including standards, to ensure food safety and public health. The variations approved by the Authority under this legislation are designed to enhance the clarity and enforceability of standards concerning the composition and definition of cheese and processed cheese. The Act applies nationally across Australia and New Zealand, affecting entities and individuals involved in the production, sale, and distribution of dairy products within this region. There are no specific exclusions mentioned in the text, but the variations are likely to impact food manufacturers, processors, retailers, and enforcement officers. The legislative process includes public consultation, as mandated by the FSANZ Act, and this particular proposal did not require a Regulation Impact Statement due to its anticipated minor impact on business and individuals. Additionally, the variations are legislative instruments that, while subject to public notice, are not subject to parliamentary disallowance or sunsetting.
Key Provisions
The main sections of this legislation revolve around the development and approval of food regulatory measures by Food Standards Australia New Zealand (FSANZ). According to section 13 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act), FSANZ is responsible for developing standards and variations of standards for inclusion in the Australia New Zealand Food Standards Code (Code). Specifically, under section 92 of the FSANZ Act, once a draft variation of a standard is approved by the Authority, it must publish a notice about the standard or draft variation. The approved variations of Chapters 1 and 2 of the Code, as outlined in section 6, concern food standards for specific foods, particularly dairy products like cheese. These variations establish prescribed standards and compositional requirements for these foods, ensuring they meet public health and safety standards and prevent misleading practices.
The FSANZ Act imposes several obligations on FSANZ regarding the development and implementation of these food regulatory measures. These include conducting thorough assessments, preparing draft standards and associated reports, and engaging in public consultation as outlined in the procedure specified in Subdivision F of Division 2 of Part 3 of the FSANZ Act. The legislation also mandates that FSANZ prepare a Regulation Impact Statement if necessary, although in this case, the proposed variations were deemed to have a minor impact on business and individuals, thus exempting them from this requirement. Additionally, FSANZ must ensure that any variations to the Code are compatible with human rights, although this particular instrument is exempt from the compatibility statement requirement as it is a non-disallowable instrument under section 94 of the FSANZ Act.
Failure to comply with the requirements and obligations set out in the FSANZ Act may result in various civil and criminal consequences. While the explanatory statement does not specify particular offences or penalties, breaches of food safety standards can generally lead to significant penalties under the FSANZ Act and other related legislation. These penalties may include substantial fines and, in severe cases, imprisonment. The precise penalties depend on the nature and severity of the breach, as well as any applicable state or territory laws. Furthermore, businesses found in violation of these standards may face additional consequences such as product recalls, court injunctions, and damage to their reputation, which can have long-term financial and operational impacts.
In summary, the FSANZ Act and the associated variations to the Australia New Zealand Food Standards Code establish a comprehensive framework for the development, implementation, and enforcement of food regulatory measures in Australia and New Zealand. These measures are designed to protect public health and safety, prevent misleading practices, and ensure that food products meet specific compositional requirements. FSANZ is tasked with the responsibility of developing these standards, conducting necessary assessments, engaging in public consultation, and ensuring compliance with human rights. While the specific penalties for non-compliance are not detailed in the explanatory statement, breaches can result in significant civil and criminal consequences, including fines and imprisonment. The ultimate goal of these provisions is to maintain high standards of food safety and integrity across both countries.