Food Standards (Application A1070 - Packaging Size for Phytosterol-enriched Lower Fat Cheese) Variation

Overview

The Food Standards Australia New Zealand Act 1991 (FSANZ Act) established Food Standards Australia New Zealand (FSANZ) as the binational agency responsible for the development and maintenance of the Australia New Zealand Food Standards Code. Enacted by the Australian Parliament, the FSANZ Act aims to provide a unified and science-based approach to food regulation across Australia and New Zealand. In this context, the Act was introduced to address the need for a cohesive and expert-driven food regulatory framework that ensures the safety and quality of food products in both countries. The explanatory statement outlines FSANZ's acceptance and approval of a draft variation to Standard 2.5.4, which removes the restrictions on portion weights for cheese and processed cheese enriched with tall oil phytosterol esters. This variation seeks to harmonise the regulations for phytosterol-enriched cheese products with those of non-phytosterol-enriched products, enhancing market availability and consumer choice while maintaining sufficient consumer protection through other risk management measures. Public consultation was conducted in accordance with the FSANZ Act, and the proposed variation was considered to have a minor impact, thus exempting it from the need for a Regulation Impact Statement. The variation to Standard 2.5.4, which deletes the individual portion weight restriction, is expected to benefit manufacturers by allowing them to produce more commercially viable product sizes, while ensuring that consumers have access to a wider range of products. This legislative instrument, being a non-disallowable instrument under section 94 of the FSANZ Act, is exempt from the requirements for a statement of compatibility with human rights.

Scope and Application

The Food Standards Australia New Zealand Act 1991 (FSANZ Act) outlines the functions and powers of Food Standards Australia New Zealand (FSANZ), including the development and variation of food regulatory measures, such as standards, in the Australia New Zealand Food Standards Code. Specifically, section 13 of the FSANZ Act empowers FSANZ to accept applications for the development or variation of food regulatory measures. FSANZ accepted Application A1070, which sought to remove restrictions on portion weights for cheese and processed cheese enriched with tall oil phytosterol esters. Following a formal consideration process and approval by the relevant authorities, FSANZ published a notice about the draft variation of Standard 2.5.4. This variation, which deletes the requirement for phytosterol-enriched cheese and processed cheese to be supplied in individual portions not exceeding 50 grams, is expected to facilitate increased availability and visibility of such products for consumers. The changes apply nationally, affecting manufacturers and retailers of these products across Australia. While the variation does not incorporate any documents by reference, it follows a period of public consultation and is deemed to have a minor impact on business and individuals. This legislative instrument is not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003.

Key Provisions

The main operative sections of this legislation concern the variation of Standard 2.5.4 within the Australia New Zealand Food Standards Code (the Code). Specifically, section 92 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act) requires that the Authority must publish a notice about the standard or draft variation of a standard, and section 94 specifies that such a standard, or a variation of a standard, is a legislative instrument but is not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003. The Authority has approved a draft variation to Standard 2.5.4 by removing the individual portion weight restriction for phytosterol-enriched cheese and processed cheese, allowing these products to be sold in any portion weight determined by commercial considerations. The obligations imposed by this Act on the Authority and other entities include the process of accepting applications for the development or variation of food regulatory measures, including standards, and the requirement to undertake a round of public consultation for such applications. In the case of Application A1070, the Authority followed the procedure outlined in Division 1 of Part 3 of the FSANZ Act, including the six-week consultation period commencing on 5 September 2012. The Authority also prepared a draft variation and associated report, and assessed the potential impact of the proposed variation, determining that a Regulation Impact Statement (RIS) was not necessary due to the minor impact expected on business and individuals. Breach of the provisions outlined in this Act may not lead to specific civil or criminal penalties, as section 94 of the FSANZ Act states that the legislative instrument is not subject to parliamentary disallowance or sunsetting. However, the Authority must ensure compliance with the procedure specified in Division 1 of Part 3 of the FSANZ Act, including the requirement for public consultation, when considering applications for the development or variation of food regulatory measures. Failure to adhere to these requirements may result in the draft variation being deemed invalid or subject to further review by relevant authorities. The exemption from the requirement for a statement of compatibility with human rights, as outlined in section 94 of the FSANZ Act, also means that there are no additional human rights-related obligations or consequences for breach in this particular case.