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 7—Alcoholic beverages)
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 2.7.2 – Beer
New section 2.7.2—1 Name
This section establishes that the instrument is the Australia New Zealand Food Standards Code – Standard 2.7.2 – Beer.
New section 2.7.2—2 Definitions
This section has no operative part. It provides a note reference to the definition of ‘beer’ in section 1.1.2—3 and a note indicating that beer might also be known as ale, lager, pilsener, porter or stout.
New section 2.7.2—3 Requirement for food sold as beer
This provision sets out the requirement that a food sold as beer must conform to the definition of ‘beer’.
[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 Instrument 2015 (F2015L00384) was enacted to address the need for updating the Australia New Zealand Food Standards Code (the Code) concerning food standards for specific foods, particularly alcoholic beverages. This legislation arises from the Food Standards Australia New Zealand Act 1991 (FSANZ Act), which empowers Food Standards Australia New Zealand (FSANZ) to develop and vary standards for inclusion in the Code. The purpose of this amendment is to revise the standards in Chapters 1 and 2 of the Code, ensuring that they reflect current requirements for public health and safety, prevent misleading practices, and facilitate market access. The FSANZ Act mandates that after considering a proposal for standard variations, such as Proposal P1025, FSANZ must publish a notice about the standard or draft variation. This amendment follows public consultation, which included two rounds of submissions, and has been reviewed by the Legislative and Governance Forum on Food Regulation. Notably, the variations do not incorporate any new documents by reference but update some existing references within the Code.
Scope and Application
The Australia New Zealand Food Standards Code Amendment (2015) Instrument 2015, as published under the Food Standards Australia New Zealand Act 1991, applies to entities and individuals involved in the production, sale, and labelling of alcoholic beverages, particularly beer, within the Commonwealth of Australia. This legislation pertains to the compositional standards and definitions necessary to ensure that products marketed as beer meet the specified criteria, thereby protecting public health and safety, preventing misleading practices, and facilitating market access. The amendments primarily concern Chapter 2 of the Code, which sets forth the standards for specific foods, including alcoholic beverages. The Act extends its reach nationally, impacting food businesses, manufacturers, and retailers across Australia. The Act does not incorporate any documents by reference but updates some references within the existing documents. Public consultation was conducted in two rounds, allowing stakeholders to provide feedback on the proposed variations. Given the minor impact on business and individuals, a Regulation Impact Statement was deemed unnecessary. Notably, the Act is exempt from the requirement for a statement of compatibility with human rights, as it is classified as a non-disallowable instrument under the FSANZ Act.
Key Provisions
The main operative sections of the proposed variation to the Australia New Zealand Food Standards Code focus on updating the standards related to beer, particularly under Standard 2.7.2. This includes the introduction of new section 2.7.2—1, which identifies the instrument as the Australia New Zealand Food Standards Code – Standard 2.7.2 – Beer, and new section 2.7.2—3, which stipulates that any food sold as beer must conform to the definition of 'beer'. These sections aim to ensure that the products sold as beer meet specific compositional and definitional standards to protect public health and safety and prevent misleading practices. There are no new definitions introduced in section 2.7.2—2; it simply references existing definitions and notes other common names for beer.
The obligations imposed by these variations on the parties or entities they govern primarily revolve around compliance with the new compositional and definitional standards for beer. Manufacturers and sellers must ensure that any product marketed as beer adheres to the prescribed standards, including conforming to the definition of 'beer' as outlined in the Code. This involves maintaining the required compositional standards to avoid misleading consumers about the nature and quality of the product. Additionally, enforcement officers will have the responsibility to verify compliance with these standards, ensuring that products on the market meet the stipulated requirements.
Failure to comply with the new standards could result in various consequences. While the explanatory statement does not detail specific offences or penalties, non-compliance with food standards generally can lead to enforcement actions, including fines, product recalls, and potential legal proceedings. The severity of penalties may vary depending on the nature and extent of the non-compliance, with more serious violations potentially attracting higher fines and other punitive measures. The variations themselves are legislative instruments that are not subject to parliamentary disallowance or sunsetting, reinforcing the binding nature of these standards.
The Authority’s consideration of Proposal P1025 included two rounds of public comment, indicating a commitment to transparency and stakeholder engagement. Although a Regulation Impact Statement was not required due to the minor impact of the proposed variations, the process followed rigorous procedural requirements under the FSANZ Act. This ensures that the variations are well-considered and balanced, reflecting public input and expert assessments. The statement of compatibility with human rights is exempt as these variations are non-disallowable instruments, simplifying the legislative process while still upholding necessary standards.