Food Standards Australia New Zealand Application Handbook - Part 3 - Amendment No. 1 - 2008

Administered by Department of Health, Disability and Ageing

Legislation au F2008L01697 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

 

 

 

Amendments to

Food Standards Australia New Zealand

Application Guidelines

 

 

 

(known as Part 3 of the FSANZ Application Handbook)

 

 

 

 

Amendment No. 1 – 2008

 

 

 

 

 

 

 

 

 


1. Purpose

 

Section 23 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act) empowers Food Standards Australia New Zealand (FSANZ) to make guidelines by legislative instrument:

 

(a) specifying the form in which applications for the development of a food regulatory measure, or the variation of a food regulatory measure, are to be made; and

(b) specifying the information, or the kinds of information, to be included with such applications; and

(c) specifying any thing, or kind of thing, to be included with such applications.

 

The guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003, but are not subject to sunsetting or disallowance.  For the purposes of section 23, Part 3 of the FSANZ Application Handbook which was originally approved by the FSANZ Board in March 2007, fulfils these requirements.

 

Applications to amend the Australia New Zealand Food Standards Code (the Code) need to be supported by all information as determined by FSANZ in writing and in advance – these are contained in Part 3 of the FSANZ Application Handbook.  If the information requirements are not met, then FSANZ has the power under the FSANZ Act to reject an application at the ‘Administrative Assessment’ stage.

 

FSANZ has approved amendments to Part 3 of the Application Handbook for the following reasons:

 

  • Assessments of applications should generally be able to proceed without past delays where FSANZ seeks further information or data from an applicant to enable assessment of the application to proceed.  This will assist in ensuring that statutory timeframes are met.

 

  • Part 3 fulfils the intention of the FSANZ Act amendment that there be clearly defined application requirements, including the requirement to provide supporting material with applications.

 

The amendments cover a number of areas:

 

  • to update text to reflect recent amendments to Standard 1.5.1 – Novel Foods, which allows applicants to seek exclusivity of use of a novel food;

 

  • to respond to comments from applicants since the information requirements in Part 3 took effect, amendments throughout the guideline on novel foods (3.5.2) to change a number of mandatory data requirements to non-mandatory requirements.  This will address concerns that the guidelines as they stood, were too rigid, thus stifling industry innovation; and

 

  • to make a number of minor amendments relating to correction and clarification of text, and references.

 

Details of the amendments are set out in Attachment 1.


1.1 Application ‘Guidelines’

 

Under section 22 of the FSANZ Act, an application to amend the Code must:

 

(a) be in writing; and

(b) if the form in which the application is to be made is specified in the guidelines made under section 23—be in the form specified; and

(c) include all of the information that, under the guidelines made under section 23 is to be included with the application; and

(d) include each thing that, under the guidelines made under section 23, is to be included with the application; and

(e) identify the procedure that, in the applicant’s view, applies to the consideration of the application.

 

If the information requirements are not met, then FSANZ has the power under section 26 of the FSANZ Act to reject the application after a 15-day Administrative Assessment. 

 

2. Consultation

 

A list of approximately 600 people with an interest in the Application Handbook are on a stakeholder mailing list.  This list was originally compiled for consultation on the initial development of the Handbook in 2006-07.  An alert was also included in the Food Standards Notification Circulars of 11 April and 22 April 2008.  Over 3,800 people are on the mailing list for this alert.

 

The Board initially considered the proposed amendments at the teleconference held on

26 March 2008 and were also alerted to the call for comment. 

 

The proposed amendments were released on 28 March 2008 with a closing date of 28 April 2008.  Comments from six submitters were received (see Attachment 2).

 

Two additional, but very minor, amendments to correct incorrect errors in the checklist of novel foods have been included in these amendments, which were not consulted on, as they were discovered after consultation had commenced. 

 

3. Impact Analysis

 

The impact analysis represents likely impacts based on available information.  The impact analysis is designed to assist in the process of identifying the affected parties, any alternative options consistent with the objective of the proposed changes, and the potential impacts of any regulatory or non-regulatory provisions.

 

Two options are identified in relation to the proposed amendments:

 

Option 1 – Not proceed with the amendments to Part 3 of the Application Handbook.

 

Option 2Proceed with the amendments to Part 3 of the Application Handbook.

 


3.1 Affected Parties

 

Parties affected by the amendments to Part 3 include:

 

  • potential applicants from industry and consumers generally, who may be affected either positively or negatively; and
  • FSANZ.

 

3.2 Benefit Cost Analysis

 

3.2.1 Option 1 – Not proceed with the amendments to Part 3 of the Handbook

 

3.2.1.1 Benefits

 

  • for applicants and FSANZ, this option would not result in any discernable benefits.

 

3.2.1.2 Costs

 

  • Applicants will be disadvantaged if their completion of the assessment of their applications is delayed due to insufficient information.

 

  • Part 3 of the Application Handbook would not accurately reflect the Code.

 

  • The mandatory data requirements in 3.5.2 will not assist in industry innovation.

 

3.2.2 Option 2 – Proceed with the amendments to Part 3 of the Application Handbook

 

3.2.2.1 Benefits

 

  • Applicants will be able to release products into the market in a timely manner.

 

  • FSANZ will not have to assess applications which are deficient in relevant data thus freeing-up resources for other work.

 

  • The data requirements under 3.5.2 will assist in industry innovation.

 

3.2.2.2 Costs

 

  • for applicants and FSANZ, this option would not result in any discernable costs.

 

3.3 Comparison of Options

 

FSANZ considers the impact of various regulatory (and non-regulatory) options on all sectors of the community.  There was no other option other than to proceed with the amendments. 

 

4. Commencement

 

These variations commence on the date of the registration of this instrument.


ATTACHMENTS

 

1. Details of the Amendments to Part 3 of the FSANZ Application Handbook

2. Consultation on amendments to the FSANZ Application Handbook

 


ATTACHMENT 1

 

Details of the Amendments to Part 3 of the FSANZ Application Handbook

 

Schedule Amendments

 

Item [1.1], [11.2]

These amendments are to correct typographical errors.

 

Item [1.2]

This amendment is to clarify the requirements in relation to an exclusive capturable commercial benefit.

 

Item [2]

These amendments have been made to clarify the meaning of the text.

 

Items [3], [7], [8], [10]

This amendment is to minimise confusion between mandatory requirements and additional information material by changing the references to additional FSANZ guidance documents to ensure the term ‘guideline’ is not used.

 

Items [4] and [5]

The proposed amendment is designed to ensure that new and possibly unexpected sources of exposure to known allergens from food additive or processing aid formulations can be systematically and consistently assessed.  The provision of this information will enable the risk assessment, risk management and risk communication aspects of the new or potentially unexpected exposure to known allergens to be considered.  This information could also facilitate the development of any additional information requirements that may be necessary (e.g. fact sheets).

 

The Food Industry Guide to Allergen Management and Labelling already includes guidance for industry on providing information about allergens in food additive and processing aid formulations. The proposed amendment complements this guidance.

 

Item [6]

This has been amended to reflect that FSANZ has no grounds to require demonstration of benefit for nutritive substances (other than vitamins and minerals), when Ministerial Council policy guidelines do not exist. 

 

Item [9], [11.1]

Adjustments have been made to ‘must’ and ‘should’ in response to comments from novel food applicants about guidelines being too restrictive with no flexibility.  There has also been the inclusion of a reference to exclusivity of use of novel foods.

 


ATTACHMENT 2

 

Stakeholder comments on amendments to Application HandbookApril 2008

 

Issue

Submitter

FSANZ Comment / Action

3.2.1 General Food Labelling

 

 

In relation to This includes both the information contained on the label and the way in which this information is presented on the food product, and the conditions that govern such information. (this is confusing; delete ‘both’, or replace the last ‘and’ with ‘including’.

 

Dairy Food Safe Victoria

Amendment made

 

 

 

3.5.2 Novel Foods

 

 

Note:

In The term novel food includes both whole foods and food ingredients – these terms are used both together or separately in this document, depending on the circumstances, replace ‘both’ with ‘either’.

Dairy Food Safe Victoria

Amendment made

A2

Amendment (a) to read ‘at-risk population groups within the general population;’

Dairy Food Safe Victoria

To be amended to the phrase after ‘at-risk population groups’

A4 Exclusive use of novel foods:

Add ‘(c)’ evidence the applicant has entitlement to claim the product is a novel food e.g. patents etc +

Amend (a) and (b) to allow for a third item

Dairy Food Safe Victoria

No amendment made – exclusivity of use is not about whether the food is novel – as the food must satisfy the definition of ‘novel food’ in Std 1.5.1. to be allowed exclusivity in the 1st place

B1 Technical Information on the novel food (Note):

In the second last line of the second last paragraph the word ‘or’ should also be removed after the shaded words ‘a nutritive substance’.

Food Technology Association of Australia

Dairy Food Safe Victoria

Amendment t made

B.6 Analytical method for detection:

We suggest two minor changes to the text in Item 16 as follows (changes bold and underlined):

The application should contain the following information:

This part includes a method for detection of the novel food ingredient and, or its degradation products in the foods in which it will be used, where relevant.

NZFSA

Agree with the intent of the suggestion, although prefer alternative wording.

This part includes a method for detection of the novel food ingredient or its degradation products (where relevant)  in the foods in which it will be used.

C Note:

Amend

Therefore, the data required for a safety assessment will vary to The data required for a safety assessment will therefore vary

Dairy Food Safe Victoria

Amendment made

 

 

Overview

The Food Standards Australia New Zealand Act 1991 (FSANZ Act) empowers Food Standards Australia New Zealand (FSANZ) to make guidelines that specify the form and content of applications for the development or variation of food regulatory measures. These guidelines, known as Part 3 of the FSANZ Application Handbook, were updated in 2008 to address certain issues and improve the application process. The amendments were introduced to ensure that assessments of applications can proceed without delays caused by insufficient information, thereby meeting statutory timeframes more effectively. Additionally, the changes were made to allow for greater industry innovation by adjusting the mandatory data requirements for novel foods to be more flexible. The amendments also included minor corrections and clarifications to the text and references. The changes were enacted to ensure that the guidelines accurately reflect the Food Standards Australia New Zealand Act and the Australia New Zealand Food Standards Code.

Scope and Application

The Amendment No. 1 – 2008 to the Food Standards Australia New Zealand Application Guidelines applies to any entity or individual intending to submit an application for the development or variation of a food regulatory measure under the Food Standards Australia New Zealand Act 1991 (FSANZ Act). These guidelines are specifically designed to specify the form and content of such applications, including the mandatory information and materials that must be provided. The amendments also extend to the Food Standards Australia New Zealand (FSANZ) itself, as they are responsible for the assessment of these applications. The guidelines are not subject to sunsetting or disallowance, but they are subject to amendment, as evidenced by the current update. The amendments aim to streamline the application process, ensuring that FSANZ can proceed with assessments without undue delays and that applicants can meet statutory timeframes effectively. The geographic and jurisdictional reach of this Act is national, applying across Australia as governed by the Commonwealth. There are no specific exclusions or exemptions stated within the text of this amendment; however, the scope of the amendments is confined to the specific areas outlined, such as the update of text to reflect recent amendments to Standard 1.5.1 – Novel Foods and the adjustment of certain data requirements for novel foods. The application of these guidelines may be further extended or restricted through subordinate instruments, but such extensions are not detailed in the provided explanatory statement.

Key Provisions

The main operative sections of the amendment to the FSANZ Application Guidelines, contained in Part 3 of the FSANZ Application Handbook, mandate specific procedures and requirements for applications to amend the Australia New Zealand Food Standards Code (the Code). Section 23 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act) authorises the creation of guidelines specifying the form and content of applications for food regulatory measures, which are detailed in the guidelines. These guidelines outline the necessary information and supporting material for applications, including the provision of all information as determined by FSANZ in writing and in advance (sections 22 and 23). If the information requirements are not met, FSANZ has the authority under section 26 of the FSANZ Act to reject an application after a 15-day administrative assessment. The FSANZ Application Guidelines impose several obligations on parties or entities governed by them. Firstly, all applications to amend the Code must be made in writing and in the specified form, as outlined in the guidelines (section 22(a) and (b)). Secondly, applications must include all information and items specified in the guidelines (section 22(c) and (d)). Finally, applicants must identify the procedure they believe applies to the consideration of their application (section 22(e)). Failure to comply with these requirements allows FSANZ to reject the application. The FSANZ Application Guidelines establish specific offences, penalties, and consequences for non-compliance. The primary consequence is the rejection of an application if it does not meet the information requirements stipulated in the guidelines. This rejection can occur after a 15-day administrative assessment period (section 26). While the legislation does not specify maximum penalties, the rejection of an application can significantly delay or prevent the applicant from proceeding with their intended regulatory measure, which can have substantial commercial and operational impacts. In summary, the amendment to the FSANZ Application Guidelines sets out clear requirements for applications to amend the Code, mandates specific obligations on applicants, and provides for the rejection of applications that do not meet the specified criteria. These provisions are designed to ensure that applications are assessed efficiently and effectively, while also protecting public health and safety by requiring comprehensive and accurate information from applicants.

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