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 2.5.6 – Ice cream
New section 2.5.6—1 Name
This section establishes that the instrument is the Australia New Zealand Food Standards Code – Standard 2.5.6 – Ice cream.
New section 2.5.6—2 Definitions
This section has no operative part. It provides a note reference to the definition of ‘ice cream’ that is now set out in section 1.1.2—3.
New section 2.5.6—3 Requirement for food sold as ice cream
This provision sets out the requirement that a food sold with the name ice cream must conform to the definition of ice cream and satisfy compositional requirements relating to milkfat and food 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 Act 1991, enacted by the Australian Parliament, established the Food Standards Australia New Zealand (FSANZ) Authority to develop and manage food standards for Australia and New Zealand. One of its primary functions is to propose and implement standards and variations within the Australia New Zealand Food Standards Code. The legislative instrument F2015L00424 represents FSANZ’s latest initiative to revise the Code, focusing on updating compositional standards for specific foods, particularly dairy products like ice cream. This revision aims to enhance consumer protection by ensuring food sold under specific names, such as "ice cream", adheres to defined compositional standards, thus preventing misleading practices and safeguarding public health and safety. The process involved two rounds of public consultation, aligning with the legislative procedure outlined in the FSANZ Act, and was deemed not to require a Regulation Impact Statement due to its anticipated minor impact on businesses and individuals.
Scope and Application
The Act applies to Food Standards Australia New Zealand (FSANZ) in its capacity to develop and vary standards within the Australia New Zealand Food Standards Code. This legislative framework pertains to the food industry, particularly those entities that manufacture, distribute, or sell food products in Australia and New Zealand. The scope of the Act encompasses the establishment of standards and variations thereof, ensuring these measures align with public health and safety objectives, prevent misleading practices, and facilitate market access. The geographic reach of this Act is national, affecting both Australian and New Zealand jurisdictions. The Act does not require a statement of compatibility with human rights as it falls under the category of non-disallowable instruments, exempting it from parliamentary disallowance or sunsetting provisions under the Legislative Instruments Act 2003. The variations made to the Code, including the specific amendments to the ice cream standard, are not subject to disallowance or sunsetting, ensuring their continued enforcement unless otherwise specified through subordinate instruments.
Key Provisions
The main operative sections of this legislation involve the revision of the Australia New Zealand Food Standards Code (the Code), particularly the update to Standard 2.5.6 concerning ice cream (section 6). This revision establishes the compositional requirements for foods sold under the name 'ice cream', including specifications for milkfat and food solids. The Authority has approved these variations in accordance with the Food Standards Australia New Zealand Act 1991 (the FSANZ Act). According to section 92 of the FSANZ Act, the Authority is required to publish a notice about the standard or draft variation of a standard, which is considered a legislative instrument. However, as per section 94, these standards are not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003.
The obligations and requirements imposed by this Act on the parties or entities it governs are primarily related to the compliance with the newly established compositional standards for ice cream. Manufacturers and sellers of ice cream must ensure that their products conform to the definitions and compositional requirements set forth in the updated Standard 2.5.6. This includes adhering to the specified levels of milkfat and food solids. The Authority, as per the FSANZ Act, is mandated to facilitate this process through public consultation, assessment, and the preparation of draft standards and associated reports. The Authority must also ensure that these standards are published and communicated to relevant stakeholders to maintain transparency and compliance.
The legislation does not explicitly outline offences, penalties, or civil/criminal consequences for non-compliance with the new standards. However, the FSANZ Act generally empowers enforcement officers to take appropriate action against non-compliant products or practices. Such actions may include the seizure of non-compliant goods, fines, or other penalties as determined by relevant authorities. The specifics of these penalties would be governed by the application Acts and other related legislation, which could involve civil or criminal proceedings depending on the severity and intent of the non-compliance.