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 A1161 which seeks to permit the use of potassium polyaspartate as a food additive - stabiliser in wine. The Authority considered the application in accordance with Division 1 of Part 3 and has prepared a draft variation.
Following consideration by the Australia and New Zealand Ministerial Forum on Food Regulation, 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 Legislation Act 2003.
2. Purpose
The Authority has prepared a draft variation to the Code to permit potassium polyaspartate as a food additive – stabiliser in wine at a maximum permitted level of 100 mg/L.
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 A1161 included one round of public consultation following an assessment and the preparation of a draft variation and associated assessment summary. Submissions were called for on 13 September 2018 for a six-week consultation period.
A Regulation Impact Statement was not required because the proposed variation to Schedule 15 and Standard 4.5.1 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
Item [1.1]
Item [1.1] of the draft variation amends Standard 4.5.1 by inserting a reference to ‘Potassium polyaspartate’ into the table to clause 3 in alphabetical order. The effect of this amendment will be to permit the use of this substance in the production of wine, sparkling wine and fortified wine in Australia.
Item [1.2]
Item [1.2] of the draft variation amends subclause 5(5) of Standard 4.5.1 by adding paragraph(i). The new paragraph sets a maximum permitted level for potassium polyaspartate of 100 mg/L. The effect of this amendment will be to impose a requirement that wine, sparkling wine and fortified wine produced in Australia must contain no more than 100 mg/L of potassium polyaspartate.
Item [2.1]
Item [2.1] of the draft variation amends the alphabetical listing in the table to section S8—2 by inserting the food additive name ‘Potassium polyaspartate’ and code number ‘456’ into that listing in alphabetical order.
Item [2.2]
Item [2.2] of the draft variation amends the numerical listing in the table to section S8—2 by inserting the food additive code number ‘456 and name ‘Potassium polyaspartate’ into that listing in numerical order.
Item [3]
Item [3] of the draft variation amends item 14.2.2 of the table to section S15—5. Item 14.2.2 relates to wine, sparkling wine and fortified wine. The amendment inserts into item 14.2.2 an entry for potassium polyaspartate (INS number 456), with a maximum permitted level of 100 mg/L. The effect of this amendment will be to permit, for the purposes of Standard 1.3.1, that substance’s use as a food additive in that category of food products subject to that maximum permitted level.
Overview
The proposed legislative instrument, F2019L01568, amends the Australia New Zealand Food Standards Code to permit the use of potassium polyaspartate as a food additive in wine at a maximum level of 100 mg/L. Enacted by the Australian Parliament under the Food Standards Australia New Zealand Act 1991, this variation addresses a gap in the current food standards concerning the use of potassium polyaspartate in winemaking. The policy objective of the variation is to enhance the flexibility of food regulatory measures by allowing the inclusion of new additives that meet safety and quality standards, thereby facilitating innovation and improving product stability in the wine industry. Following a public consultation process and assessment by Food Standards Australia New Zealand, the Authority has drafted this variation to ensure that the addition of potassium polyaspartate as a stabiliser in wine adheres to food safety standards and does not pose a risk to consumers.
Scope and Application
The draft variation under consideration pertains to the Food Standards Australia New Zealand Act 1991, focusing on the acceptance and consideration of application A1161 which seeks to permit the use of potassium polyaspartate as a food additive - stabiliser in wine. This legislative instrument applies to food businesses and entities involved in the production of wine, sparkling wine, and fortified wine within Australia, aiming to modify existing standards to incorporate potassium polyaspartate as a permissible additive under specific conditions. The geographic reach of this Act is confined to Australia, with any corresponding implications for New Zealand being subject to separate regulatory processes and considerations. The draft variation does not incorporate any documents by reference, and it is exempt from the requirements for a statement of compatibility with human rights as it is a non-disallowable instrument under the FSANZ Act. The Authority's process for considering the application included a round of public consultation, with submissions invited from stakeholders, ensuring transparency and inclusivity in the decision-making process.
Key Provisions
The primary operative sections of this legislation involve the draft variation to the Australia New Zealand Food Standards Code (the Code), specifically relating to the use of potassium polyaspartate as a food additive in wine. Section 13 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act) outlines the Authority’s functions, including the development and variation of standards. Division 1 of Part 3 of the FSANZ Act sets out the procedure for considering applications for such variations. Under this procedure, the Authority accepted application A1161 and prepared a draft variation to permit the use of potassium polyaspartate in wine at a maximum level of 100 mg/L. Following consultation, this draft variation is now subject to publication under section 92 of the FSANZ Act. Once published, it becomes a legislative instrument under section 94 but remains exempt from parliamentary disallowance or sunsetting under the Legislation Act 2003.
The obligations imposed by this Act are primarily on the Authority and those entities producing wine, sparkling wine, and fortified wine. The Authority is obligated to consider applications for variations of food regulatory measures in accordance with the stipulated procedures. Producers and manufacturers must ensure compliance with the new standard once it is enacted, which includes limiting the use of potassium polyaspartate to a maximum of 100 mg/L in their products. This involves monitoring the levels of potassium polyaspartate used in their production processes and maintaining records to demonstrate compliance.
Breach of the new standard could result in various consequences. Although the exact penalties are not specified within the explanatory statement, breaches of food standards typically result in enforcement actions that may include fines, product recalls, and potential legal proceedings. The maximum penalties would depend on the specific breach and the jurisdiction in which it occurs, but they could be significant under the FSANZ Act and related food safety legislation. The Authority has the power to take action against non-compliant products and may also pursue legal action against entities that repeatedly or seriously violate the standards.
Additionally, there are civil and criminal consequences for severe breaches. Civil penalties might include fines up to a substantial amount, determined by the severity and impact of the breach. Criminal penalties could be imposed for more egregious violations, potentially leading to imprisonment. The exact nature and extent of these penalties would be determined by the relevant courts based on the circumstances of each case. Overall, compliance with the new standards is essential to avoid these serious repercussions.