Australia New Zealand Food Standards Code – Transitional Variation 2015 (Proposal P1035 – Gluten Claims about Foods containing Alcohol)

Overview

The Food Standards Australia New Zealand Act 1991 (FSANZ Act) was enacted to provide a framework for the regulation of food standards across Australia and New Zealand. It established Food Standards Australia New Zealand (FSANZ) as the central body responsible for developing food standards and ensuring their implementation. The FSANZ Act was introduced to address the need for a coordinated approach to food regulation, ensuring food safety and public health while facilitating trade between Australia and New Zealand. The explanatory statement for Legislative Instrument F2015L01366 outlines the Authority's consideration of Proposal P1035, which aimed to amend Standard 1.2.7 to permit nutrition content claims about gluten in foods containing more than 1.15% alcohol by volume. This proposal followed a public consultation process and targeted stakeholder engagement. The draft variations to Standards 1.1.2, 1.2.7, and 1.2.8 were approved to provide an exemption from the requirement to provide nutrition information when a gluten claim is made about a beverage containing alcohol. The legislative instrument was exempt from requiring a statement of compatibility with human rights, as it is a non-disallowable instrument under section 94 of the FSANZ Act. The policy objective was to facilitate clearer communication of gluten content in alcoholic beverages, while also considering the impact on businesses and consumers.

Scope and Application

The proposed legislative instrument under the Food Standards Australia New Zealand Act 1991 pertains to the amendment of food standards within the Australia New Zealand Food Standards Code, specifically addressing gluten claims in relation to alcoholic beverages. The Act applies to Food Standards Australia New Zealand (FSANZ) and the food industry, encompassing entities involved in the production, labelling, and sale of food products in Australia and New Zealand. The geographic and jurisdictional reach of this legislation is national, extending across both Australia and New Zealand, as governed by the FSANZ Act. The Act does not specify exclusions or exemptions beyond the scope of the variations to Standards 1.1.2, 1.2.7, and 1.2.8. Any further application or restriction of these amendments is left to the discretion of FSANZ through subordinate instruments, which may include guidelines or additional standards to clarify the implementation of these variations. The instrument itself does not require a statement of compatibility with human rights, as it is classified as a non-disallowable instrument under section 94 of the FSANZ Act.

Key Provisions

The main operative sections of the legislation involve amendments to Standards 1.1.2, 1.2.7, and 1.2.8 in the Australia New Zealand Food Standards Code. These amendments are intended to permit certain nutrition content claims about gluten in relation to food and beverages containing alcohol (items [1] to [3]). Specifically, item [1] modifies the definition of 'claim requiring nutrition information' to exclude 'prescribed beverage gluten free claims', thereby exempting certain beverages from the requirement to provide nutrition information when such a claim is made. Item [1.1] and [1.2] define 'prescribed beverage' and 'prescribed beverage gluten free claim', respectively, with the former referring to standardised alcoholic beverages or those containing at least 0.5% alcohol by volume, and the latter referring to nutrition content claims using the descriptor 'free' or similar in relation to gluten content. Item [2] updates Standard 1.2.7 to allow for gluten content claims for foods containing more than 1.15% alcohol by volume, subject to conditions specified elsewhere in the Code. These changes were approved by Food Standards Australia New Zealand (the Authority) following consultation and are now subject to ministerial consideration. The obligations imposed by the Act require the Authority to publish a notice about the draft variations to the standards, as stipulated in section 92 of the FSANZ Act. The Authority has fulfilled this obligation by preparing Proposal P1035 and initiating a round of public consultation, as mandated by Division 2 of Part 3 of the FSANZ Act. Additionally, targeted consultations were conducted with key stakeholders to gather input on the exemption from nutrition information requirements for certain beverages. These amendments aim to streamline the process for making gluten content claims while ensuring that consumers are not misled about the nutritional content of alcoholic beverages. Any breach of the provisions set out in the draft variations could potentially lead to civil or criminal consequences, depending on the nature and extent of the non-compliance. However, the explanatory statement does not explicitly outline specific offences or penalties for breach. Generally, under the FSANZ Act, non-compliance with food standards could result in enforcement actions by relevant authorities, which may include fines, injunctions, or other legal remedies. The maximum penalties for such offences would be determined according to the relevant provisions of the FSANZ Act and other applicable laws. The legislation ensures that the draft variations to the standards are exempt from the requirements for a statement of compatibility with human rights, as they are considered non-disallowable instruments under section 94 of the FSANZ Act. This exemption reflects the legislative intent to facilitate the adoption of these variations without the need for extensive human rights compatibility assessments. As such, the primary focus remains on ensuring that the amendments to the standards effectively address the intended purposes while maintaining consumer protection and transparency in food labelling.