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 A1100 which sought to increase the maximum permitted level (MPL) of acesulphame potassium (Ace K) in chewing gum to align with the international regulations and so standardise formulations. The Authority considered the Application in accordance with Division 1 of Part 3 and has approved a draft variation.
Following consideration by the Australia and New Zealand Ministerial 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 a draft variation to Schedule S15—5 which would allow a higher than currently permitted MPL for Ace K, a food additive (sweetener and flavour enhancer) in chewing gum. Permitting this higher level in chewing gum would enable manufacturers and importers to sell chewing gum in Australia and New Zealand with taste profiles which are matched with those currently available in overseas markets.
The approved draft variation would provide consistency with international regulations and trading partners, and facilitate the production and importation of currently prohibited chewing gum products in Australia and New Zealand.
3. Documents incorporated by reference
The variations to food regulatory measures do 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 A1100 included one round of public consultation following an assessment and the preparation of a draft variation and associated report. A call for submissions (including the draft variation) occurred for a six-week consultation period.
A Regulation Impact Statement was not required because the proposed variation to section S15—5 is 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
Item [1] amends the table to section S15—5 in Schedule 15 Food Additives.
Item [1.1] amends the existing entry for Acesulphame potassium in item 5 of the table. The amendment provides that entry does not apply to bubble gum or to chewing gum. This is to reflect the amendment made by item [1.3] of the draft variation.
Item [1.2] omits the reference “950,” from the Note to item 5 in the table. This is to reflect the amendments made by items [1.1] and [1.3] of the draft variation.
Item [1.3] amends subitem 5.2.1 of the table. It inserts a permission after the entry in that subitem for additive 321 for the use of Acesulphame potassium (INS number 950) as a food additive in bubble gum and chewing gum subject to a maximum permitted level of 5000 mg/kg.
[1] convening as the Australia and New Zealand Food Regulation Ministerial Council
Overview
The Food Standards Australia New Zealand Act 1991, as amended by the legislation F2016L00127, was enacted to provide a modern and streamlined framework for the regulation of food standards in Australia and New Zealand through the establishment of Food Standards Australia New Zealand (FSANZ). This legislative instrument was introduced to address the need for aligning Australia and New Zealand's food standards with international regulations, thereby facilitating trade and ensuring consumer safety. The Act vests in FSANZ the authority to develop and vary food standards, including maximum permitted levels of food additives, and mandates the publication of these standards or variations. The explanatory statement reveals that this particular legislative instrument pertains to a draft variation approved by FSANZ, which seeks to increase the maximum permitted level of the food additive acesulphame potassium (Ace K) in chewing gum to standardise formulations with international practices, enhance consistency, and allow for the production and importation of previously prohibited chewing gum products. The enacting body, Parliament, has ensured that such variations are subjected to public consultation and are exempt from disallowance or sunsetting provisions under the Legislative Instruments Act 2003.
Scope and Application
The Food Standards Australia New Zealand Act 1991 governs the establishment and enforcement of food standards in Australia and New Zealand through the establishment of Food Standards Australia New Zealand (FSANZ), an independent statutory authority. This act applies to all food produced, processed, manufactured, sold, and imported within the jurisdictions of Australia and New Zealand. The act provides FSANZ with the authority to develop and implement food standards, including setting maximum permitted levels of food additives. FSANZ has approved a draft variation to increase the maximum permitted level of acesulphame potassium (Ace K), a sweetener and flavour enhancer, in chewing gum to align with international standards. This change is designed to enable manufacturers and importers to produce and sell chewing gum with taste profiles similar to those available in overseas markets, thereby facilitating international trade and consistency in food additive regulations. The act does not require a regulation impact statement for this variation, as it is expected to have a minor impact on business and individuals. Once finalised, this variation will be published and will become a legislative instrument under the FSANZ Act, although it will not be subject to parliamentary disallowance or sunsetting. The act does not incorporate any documents by reference for this variation, and there is no statement of compatibility with human rights as the instrument is exempt from such requirements.
Key Provisions
The main operative sections of this legislation, referenced in the explanatory statement, include sections 13, 92, and 94 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act). Section 13 outlines the Authority's role in developing standards and variations of standards for the Australia New Zealand Food Standards Code. Section 92 mandates the publication of a notice about a standard or draft variation of a standard, following consideration by the Australia and New Zealand Ministerial Forum on Food Regulation. Section 94 specifies that such a standard or variation is a legislative instrument, exempt from parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003.
The Act imposes several obligations and requirements on Food Standards Australia New Zealand (the Authority). Firstly, it mandates that the Authority must consider applications for the development or variation of food regulatory measures, such as the application to increase the maximum permitted level (MPL) of acesulfame potassium (Ace K) in chewing gum. This consideration must adhere to the procedures outlined in Division 1 of Part 3 of the FSANZ Act. Additionally, the Authority is required to conduct public consultation on draft variations and associated reports, as seen in the consideration of Application A1100. The Authority must also publish a notice about the draft variation once it has been approved by the Ministerial Forum, as stipulated in section 92 of the FSANZ Act.
There are no specific offences or penalties mentioned within the explanatory statement for breaches of the Act's provisions. However, any failure to comply with the requirements for developing or varying food regulatory measures could lead to legal challenges or regulatory scrutiny. The Authority's actions, such as the approval of the draft variation, are subject to the legislative framework and public consultation processes outlined in the FSANZ Act. Non-compliance with these processes could potentially result in the variation being deemed invalid or subject to review by relevant authorities.
The legislative instrument is exempt from the requirement for a statement of compatibility with human rights under section 94 of the FSANZ Act, as it is classified as a non-disallowable instrument. This exemption means that the legislation does not need to demonstrate compatibility with human rights as part of its enactment. The variations to food regulatory measures do not incorporate any documents by reference, ensuring that the legislative changes are contained within the Act itself and do not rely on external documents.
Overall, the legislation aims to standardise the permitted levels of food additives in chewing gum to align with international regulations, facilitating trade and production. The Authority's role in considering applications, conducting public consultation, and publishing notices is central to the implementation of these changes, ensuring that the process is transparent and inclusive.