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.
The Authority accepted Application A1244 which sought to amend the Code to permit the use of the enzyme chymosin (EC 3.4.23.4) sourced from a genetically modified strain of Trichoderma reesei (T.reesei), expressing a chymosin gene from Bos taurus, as a processing aid in the manufacture of cheese, cheese products and fermented and rennetted milk products. The Authority considered the application in accordance with Division 1 of Part 3 and has approved a draft variation.
Following consideration by the Food Ministers’ Meeting (FMM)[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 Legislation Act 2003.
2. Variation is a legislative instrument
The approved draft variation is a legislative instrument for the purposes of the Legislation Act 2003 (see section 94 of the FSANZ Act) and is publicly available on the Federal Register of Legislation (www.legislation.gov.au).
This instrument is not subject to the disallowance or sunsetting provisions of the Legislation Act 2003. Subsections 44(1) and 54(1) of that Act provide that a legislative instrument is not disallowable or subject to sunsetting if the enabling legislation for the instrument (in this case, the FSANZ Act): (a) facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States; and (b) authorises the instrument to be made for the purposes of the scheme. Regulation 11 of the Legislation (Exemptions and other Matters) Regulation 2015 also exempts from sunsetting legislative instruments a primary purpose of which is to give effect to an international obligation of Australia.
The FSANZ Act gives effect to an intergovernmental agreement (the Food Regulation Agreement) and facilitates the establishment or operation of an intergovernmental scheme (national uniform food regulation). That Act also gives effect to Australia’s obligations under an international agreement between Australia and New Zealand. For these purposes, the Act establishes the Authority to develop food standards for consideration and endorsement by the FMM. The FMM is established under the Food Regulation Agreement and the international agreement between Australia and New Zealand, and consists of New Zealand, Commonwealth and State/Territory members. If endorsed by the FMM, the food standards on gazettal and registration are incorporated into and become part of Commonwealth, State and Territory and New Zealand food laws. These standards or instruments are then administered, applied and enforced by these jurisdictions’ regulators as part of those food laws.
3. Purpose
The Authority has approved a draft variation amending the table to section S18––9(3) of the Code to permit the use of the enzyme, chymosin (EC 3.4.23.4) sourced from a genetically modified strain of T. reesei expressing a chymosin gene from Bos taurus, as a processing aid in the manufacture of cheese, cheese products and fermented and rennetted milk products. This permission is subject to the condition that the maximum permitted level or amount of this enzyme that may be used in the food must be consistent with good manufacturing practice (GMP).
4. Documents incorporated by reference
The approved draft variation does not incorporate any documents by reference.
However, existing provisions of the Code incorporate documents by reference that will prescribe identity and purity specifications for the processing aid to be permitted by the approved draft variation. Section 1.1.1—15 of the Code requires substances used as processing aids to comply with any relevant identity and purity specifications listed in Schedule 3 of the Code. Section S3—2 of Schedule 3 incorporates by reference the specifications listed in the Joint FAO/WHO Expert Committee on Food Additives (JECFA) Combined Compendium of Food Additive Specifications (FAO/WHO 2019) and the United States Pharmacopeial Convention (2020) Food Chemicals Codex (12th edition). These include specifications for enzyme preparations used in food processing.
5. Consultation
In accordance with the procedure in Division 1 of Part 3 of the FSANZ Act, the Authority’s consideration of Application A1244 included one round of public consultation following an assessment and the preparation of a draft variation and associated report. Submissions were called for on 4 April 2022 for a six-week consultation period.
The Office of Best Practice Regulation (OBPR) granted the Authority a standing exemption from the requirement to develop a Regulatory Impact Statement (RIS) for applications relating to permitting new processing aids and genetically modified food (OBPR correspondence dated 24 November 2010, reference 12065). This standing exemption was provided as permitting new processing aids and genetically modified foods is deregulatory as their use will be voluntary if the application concerned is approved. This standing exemption relates to the introduction of a food to the food supply that has been determined to be safe.
6. 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 44 of the Legislation Act 2003.
7. Variation
Item [1] of the Schedule to the variation inserts, in alphabetical order, a new entry into the table to subsection S18—9(3). The new entry consists of the following enzyme:
“Chymosin (EC 3.4.23.4) sourced from Trichoderma reesei containing the chymosin gene from Bos taurus” (column 1 of the table).
The permitted technological purpose for this enzyme is use as a processing aid in the manufacture of cheese, cheese products, fermented milk products and rennetted milk products (column 2 of the table).
The permission would be subject to the condition that the maximum permitted level or amount of this enzyme that may be present in the food must be consistent with GMP (column 3 of the table).
The variation permits the proposed use of the enzyme, chymosin (EC number 3.4.23.4), sourced from T. reesei containing the chymosin gene from B. taurus, as a processing aid in accordance with the Code.
[1] Formerly referred to as the Australia and New Zealand Ministerial Forum on Food Regulation.