Food Standards (Application A1055 – Short-chain Fructo-oligosaccharides) Variation

Administered by Department of Health, Disability and Ageing

Legislation au F2013L01465 Not in force Legislative Instrument

Legislation content

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 1 of Part 3 of the FSANZ Act specifies that the Authority may accept applications for the development or variation of food regulatory measures, including standards. This Division also stipulates the procedure for considering an application for the development or variation of food regulatory measures.

 

FSANZ accepted Application A1055, in which the Applicant seeks amendments to the Code to permit the optional addition of short chain FOS produced from sucrose by enzymatic action (short chain FOSsucrose) to Infant Formula Products (Standard 2.9.1), Foods for Infants (Standard 2.9.2) and Formulated Supplementary Foods for Young Children (Standard 2.9.3 Division 4).

 

The Code currently permits ‘inulin-derived substances’ (IDS), alone or in combination with galacto-oligosaccharides (GOS), to be added to these food categories up to a maximum amount. The definition of IDS in the Code incorporates short chain FOS derived from inulin (short chain FOSinulin). The Applicant proposes short chain FOSsucrose be used as an alternative to IDS at the same levels as currently permitted.

 

The Applicant also requested amending Standard 1.3.3 to permit the use of a new microbial source of β-fructofuranosidase (also called invertase) (EC 3.2.1.26) enzyme from a strain of the fungus Aspergillus niger (A. niger) as a processing aid (enzyme) to be used in the production of short chain FOSsucrose.

 

The Authority considered Application A1055 in accordance with Division 1 of Part 3 and has approved a draft variation setting out amendments to Standards 1.1.1, 1.3.3, 2.9.1, 2.9.2 and 2.9.3.

 

Following consideration by the COAG Legislative and Governance Forum on Food Regulation[1], section 92 of the FSANZ Act stipulates that the Authority must publish a notice about the draft 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 and operation  

 

The purpose of the draft variation is to amend the following Standards in the Code:

 

  • Standard 1.1.1
  • Standard 1.3.3
  • Standards 2.9.1 to 2.9.3.


The proposed amendments are as follows:

 

  • replacing the term ‘inulin-derived substances’ (IDS) and its definition with a new term ‘inulin-type fructans’ (ITF) and its definition (Standard 1.1.1);
  • replacing references to IDS with the new term ITF throughout the Code (Standards 1.1.1, 2.9.1 to 2.9.3); and
  • adding Aspergillus niger as an additional source of the enzyme β-fructofuranosidase (EC3.2.1.26) (Table to clause 17 in Standard 1.3.3).

 

Replacing the reference to IDS with ITF in Standards 2.9.1, 2.9.2 and 2.9.3 would enable both short chain FOSsucrose and IDS, alone or in combination with each other and/or GOS, to be added to infant formula products, infant foods and formulated supplementary foods for young children.

 

In addition, the Code currently states that IDS are taken not to be nutritive substances. This principle would apply to the new term, ITF. This means that the use of ITF, including short chain FOSsucrose, would not be prohibited in general foods.

 

Amending Standard 1.3.3 – Processing Aids, would enable manufacturers to produce short chain FOSsucrose using the invertase enzyme from a natural, genetically unmodified strain of the fungus A. niger as a processing aid.

 

3. Documents incorporated by reference

 

The variation to food regulatory measures does not incorporate any documents by reference.

 

4. Consultation  

 

In accordance with the procedure in Division 1 of Part 3 of the FSANZ Act, the Authority’s consideration of Application A1055 included one round of public consultation following an assessment of A1055, the preparation of a draft variation setting out amendments to Standards 1.1.1, 1.3.3, 2.9.1, 2.9.2 and 2.9.3 and associated report.  Submissions were called for in December 2012 for an eight-week consultation period. As a result of submissions received, some amendments were made to the draft variation.

 

An expert group, the Infant and Child Health Scientific Advisory Group (ICHSAG), was established with representatives from the fields of paediatrics, child nutrition research, gastroenterology and clinical nutrition to provide advice to the Authority throughout the standard development process. The ICHSAG contributed a broad spectrum of knowledge and expertise in the field of infant and young children’s nutrition.

 

A Regulation Impact Statement (RIS) was not required because the proposed variation provides only for the optional, as opposed to mandatory, addition of an ingredient and is unlikely to have a major 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. Variations  

 

Subitem [1.1]

 

Subitem [1.1] amends clause 2 of Standard 1.1.1 to replace the current term IDS and its definition with the new term ITF and its definition. Although not specified in the definition itself, the mixtures referred to in the definition of ‘inulin-type fructans’ would include but is not limited to substances described as -

 

(a)          FOS; or

(b)          short-chain FOS; or

(c)           oligofructose; or

(d)          inulin.

 

Subitem [1.2]

 

Subitem [1.2] amends clause 9A of Standard 1.1.1 to replace the reference to IDS with a reference to ITF. This amendment means that ITF would be taken not to be nutritive substances and, consequently, the use of ITF in general foods would not be prohibited.

 

Subitem [2.1]

 

Subitem [2.1] amends the Table to clause 17 of Standard 1.3.3 to omit the invertase enzyme (EC3.2.1.26) sourced from Saccharomyces cerevisiae from the list of permitted enzymes of microbial origin that may be used as a processing aid.  

 

Subitem [2.2]

 

Subitem [2.2] amends the Table to clause 17 of Standard 1.3.3 by inserting a reference to the enzyme β-fructofuranosidase (EC3.2.1.26) sourced from both Saccharomyces cerevisiae and A. niger into the list of permitted enzymes of microbial origin that may be used as a processing aid.  

 

Subitem [3.1] and items [4] and [5]

 

Subitem [3.1] and items [4] and [5] amend Standards 2.9.1, 2.9.2 and 2.9.3 respectively to replace the term IDS wherever this term occurs within those Standards with the term ITF. This is in line with the amendments made to Standard 1.1.1 above. These amendments permit ITF, which includes short chain FOSsucrose, to be added to infant formula products, infant foods and formulated supplementary foods for young children, alone or in combination with each other and/or GOS, at the maximum amounts currently prescribed in relation to IDS or IDS and GOS in these Standards. 

 

Subitem [3.2]

 

Subitem [3.2] amends the Table of contents of Standard 2.9.1 so that clause 9A, which is currently not in the Table of contents, will be added to it with the new heading “Permitted inulin-type fructans and galacto-oligosaccharides.”

 

 

 

[1] Previously known as the Australia and New Zealand Food Regulation Ministerial Council

Overview

The Food Standards Australia New Zealand Act 1991, enacted to establish Food Standards Australia New Zealand (FSANZ) and provide for the development of food standards, has been amended to facilitate changes in food regulatory measures. This legislative instrument, F2013L01465, was introduced to address the need for updates in food standards concerning the addition of short chain fructo-oligosaccharides (FOS) produced from sucrose to certain food products. The Australian Parliament, through FSANZ, enacted this legislation to ensure that the food standards remain current and scientifically justified. The policy objective is to allow for the optional addition of short chain FOS produced from sucrose to specific food categories while maintaining food safety and nutritional integrity. The legislative instrument includes public consultation, expert advice, and consideration by the relevant authorities, ensuring a balanced approach to food regulation. This legislative instrument amends the Australia New Zealand Food Standards Code by replacing the term 'inulin-derived substances' (IDS) with 'inulin-type fructans' (ITF) and allows for the use of an additional source of the enzyme β-fructofuranosidase from Aspergillus niger in the production of short chain FOS from sucrose. This change permits the optional addition of short chain FOS produced from sucrose to infant formula products, infant foods, and formulated supplementary foods for young children. The amendments are intended to maintain food safety and nutritional standards while providing flexibility in food production.

Scope and Application

The legislation pertains to a draft variation approved by Food Standards Australia New Zealand (FSANZ) under the Food Standards Australia New Zealand Act 1991. The Act applies to the development and variation of food standards within the Australia New Zealand Food Standards Code, overseen by FSANZ. The draft variation primarily affects food manufacturers and suppliers of ingredients within the food industry, particularly those involved in the production of infant formula products, infant foods, and formulated supplementary foods for young children. It does not apply to general food products beyond these categories. The variation allows for the optional addition of short chain fructo-oligosaccharides (FOS) produced from sucrose by enzymatic action (short chain FOSsucrose) to the aforementioned food categories, replacing the current allowance for inulin-derived substances (IDS). The variation also allows the use of a new microbial source of the enzyme β-fructofuranosidase (invertase) from Aspergillus niger in the production of short chain FOSsucrose. This change extends the range of permissible processing aids for these food products. The legislative instrument is subject to consultation and review by relevant stakeholders, including an expert group, and it incorporates amendments based on public submissions. It is a non-disallowable legislative instrument, exempt from certain parliamentary scrutiny processes. This variation is applicable across Australia, as FSANZ operates under a Commonwealth mandate with jurisdiction over both Australian and New Zealand food standards. The legislation does not specify any exclusions or exemptions, and its application is limited to the specific standards mentioned. The draft variation does not incorporate any external documents by reference, but it is supported by an assessment and a Regulation Impact Statement, which concluded that the variation would not significantly impact businesses or individuals.

Key Provisions

The Food Standards Australia New Zealand (FSANZ) Act 1991, particularly sections 13, 92 and 94, provides the legal foundation for the Authority's actions in relation to Application A1055. Section 13 empowers the Authority to develop and vary standards, while Section 92 mandates the publication of a notice about draft variations, and Section 94 classifies these variations as legislative instruments, exempt from parliamentary disallowance or sunsetting. In response to Application A1055, the Authority has approved a draft variation that modifies Standards 1.1.1, 1.3.3, 2.9.1, 2.9.2 and 2.9.3 in the Australia New Zealand Food Standards Code. These changes include replacing the term 'inulin-derived substances' (IDS) with 'inulin-type fructans' (ITF), allowing for the use of the enzyme β-fructofuranosidase from Aspergillus niger as a processing aid, and enabling the addition of short chain FOSsucrose to infant formula products, foods for infants and formulated supplementary foods for young children. The draft variation imposes specific obligations on manufacturers and food producers. These include adhering to the new definitions and permitted uses of inulin-type fructans and β-fructofuranosidase as a processing aid, as outlined in Standards 1.1.1, 1.3.3, 2.9.1, 2.9.2 and 2.9.3. Manufacturers must ensure that any use of short chain FOSsucrose in food products complies with the updated standards, particularly in relation to the maximum allowable amounts of inulin-type fructans and galacto-oligosaccharides in infant formula products, foods for infants and formulated supplementary foods for young children. Failure to comply with the provisions of the draft variation could result in legal consequences. Although the explanatory statement does not detail specific offences or penalties for non-compliance, it is implied that breaches of the Food Standards Code could lead to enforcement actions under the FSANZ Act. This may include fines, corrective notices, or other regulatory measures as determined by FSANZ or relevant state and territory authorities. The precise penalties would depend on the nature and severity of the non-compliance and would be consistent with existing food safety and standards legislation. In summary, the draft variation to the Food Standards Code, approved by FSANZ in response to Application A1055, introduces significant changes to the definition of inulin-derived substances, the use of β-fructofuranosidase as a processing aid, and the permissible addition of short chain FOSsucrose to specific food products. These changes impose new obligations on manufacturers and food producers, who must ensure compliance with the updated standards to avoid potential regulatory consequences. While specific penalties for non-compliance are not detailed in the explanatory statement, they would be in line with existing food safety and standards legislation.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.