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 2 of Part 3 of the FSANZ Act specifies that the Authority may prepare a proposal for the development or variation of food regulatory measures, including standards. This Division also stipulates the procedure for considering a proposal for the development or variation of food regulatory measures.
FSANZ prepared Proposal P1038 to address an inconsistency in the conditions for vitamin and mineral claims between Standards 1.2.7 and 1.3.2 and to permit nutrition content claims about salt and sodium in relation to foods (excluding beverages) containing more than 1.15% alcohol by volume. The Authority considered the Proposal in accordance with Division 2 of Part 3 and has approved a draft Standard.
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 rectify a discrepancy in the conditions required to make a nutrition content claim about a vitamin or mineral in food. The current conditions require a minimum of 10% of the RDI or ESADDI per serving of the food. The amended conditions will allow a minimum of 10% of the RDI or ESADDI per reference quantity of the food, if certain conditions are met.
The Authority has also approved a draft variation to Standard 1.2.7 to permit nutrition content claims about salt and sodium in relation to food (not beverages) containing more than 1.15% alcohol by volume.
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 2 of Part 3 of the FSANZ Act, the Authority’s consideration of Proposal P1038 included one round of public consultation following an assessment and the preparation of a draft Standard and associated report.
A Regulation Impact Statement was not required because the recommended variations to Standard 1.2.7 are of a minor nature.
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 Standard 1.2.7.
Item [1.1] inserts definitions for maximum claimable amount and reference quantity into clause 2. These defined terms are then used in the amended entry for ‘Vitamin or mineral (not including potassium or sodium)’ in Schedule 1. The term ‘maximum claimable amount’ is defined to mean the maximum amount of a vitamin or mineral that can be claimed, as prescribed by clause 4 or clause 5 of Standard 1.3.2. The term ‘reference quantity’ is defined to mean the reference quantity specified for the food in Column 2 of the Table to clause 3 of Standard 1.3.2.
Item [1.2] amends paragraph 3(b) of Standard 1.2.7 by inserting a reference to salt or sodium content about a food that is not a beverage. The effect of the amendment is to permit nutrition content claims about salt and sodium content to be made in relation to a food (not a beverage) that contains more than 1.15% alcohol by volume. Any nutrition content claim made about the salt or sodium content of a food would have to be made in accordance with the conditions specified in clause 11 and Schedule 1 of Standard 1.2.7.
Item [1.3] amends Schedule 1 of Standard 1.2.7 by varying the general claim conditions for making a nutrition content claim for a vitamin or mineral (not including potassium or sodium).
The effect of the amendment is to provide an exemption from the general claim condition at paragraph (b) that requires a serving of the food contains at least 10% of the RDI or ESADDI for that vitamin or mineral). The exemption applies if each of the following exists:
- A maximum claimable amount is prescribed by clause 4 or clause 5 of Standard 1.3.2 for the claimed vitamin or mineral.
- A serving of the food (as specified determined by the supplier) is less than the reference quantity for the food as specified in Column 2 of the Table to clause 3 of Standard 1.3.2.
- The maximum claimable amount (per reference quantity) for the claimed vitamin or mineral is less than 10% of the RDI or ESADDI per serving.
- The reference quantity contains at least 10% of the RDI or ESADDI for the vitamin or mineral.
In other words, if the maximum claimable amount is less than the required 10% of the RDI or ESADDI per serving, a nutrition content claim may still be made if the reference quantity of the same food contains 10% of the RDI or ESADDI.
[1] convening as the Australia and New Zealand Food Regulation Ministerial Council
Overview
The Food Standards Australia New Zealand Act 1991, enacted by the Commonwealth Parliament, establishes Food Standards Australia New Zealand (FSANZ) as the body responsible for developing food standards and variations thereof for inclusion in the Australia New Zealand Food Standards Code. To address inconsistencies and gaps in existing food standards, FSANZ developed Proposal P1038, which was subsequently approved as a draft variation by the Authority. The primary aim of this legislation is to rectify discrepancies in the conditions for vitamin and mineral claims and to allow nutrition content claims about salt and sodium in relation to foods containing more than 1.15% alcohol by volume. Following the stipulated procedure in the FSANZ Act, the Authority has published a notice about the draft variation, which is now a legislative instrument but is not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003.
The approved draft variation involves amending Standard 1.2.7 to permit nutrition content claims about salt and sodium for foods (excluding beverages) with more than 1.15% alcohol by volume. Additionally, it modifies the conditions for vitamin and mineral claims, allowing a minimum of 10% of the Recommended Daily Intake (RDI) or Estimated Safe and Adequate Daily Dietary Intake (ESADDI) per reference quantity of the food, provided certain conditions are met. This change aims to streamline the regulatory framework and ensure consistency across the food standards, facilitating clearer communication of nutritional information to consumers.
Scope and Application
The Food Standards Australia New Zealand Act 1991 (FSANZ Act) empowers Food Standards Australia New Zealand (FSANZ) to develop and vary standards for the Australia New Zealand Food Standards Code, which applies across both Australia and New Zealand. Specifically, the Act permits FSANZ to address inconsistencies and propose variations to existing standards, which are subject to a rigorous process including public consultation. The approved variations to Standards 1.2.7 and 1.3.2 pertain to the conditions for making vitamin and mineral claims, as well as salt and sodium claims for foods with alcohol content exceeding 1.15% by volume. These variations do not incorporate any external documents and have undergone one round of public consultation as mandated by the Act. Notably, the variations are exempt from parliamentary disallowance and sunset provisions under the Legislative Instruments Act 2003. These amendments are designed to offer greater flexibility in nutrition content claims while maintaining the integrity of food labelling standards.
Key Provisions
The key operative sections of the legislation include sections 13, 92, and 94 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act). Section 13 outlines the Authority's functions, which include developing standards and variations of standards for inclusion in the Australia New Zealand Food Standards Code (the Code). Section 92 mandates that the Authority must publish a notice about the standard or draft variation of a standard following consideration by the Australia and New Zealand Ministerial Forum on Food Regulation. Section 94 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. This means that the Authority's approval of the draft variation to the food standards, once published, becomes legally binding without the need for parliamentary approval or sunset provisions.
The obligations and requirements imposed by the Act on the parties or entities it governs are primarily concerned with the consistency and accuracy of nutrition content claims on food products. Specifically, the Act requires that any nutrition content claims about vitamins and minerals in food products must align with the conditions set out in the amended Standard 1.2.7. For vitamin and mineral claims, the legislation allows for a nutrition content claim if the reference quantity of the food contains at least 10% of the Recommended Dietary Intake (RDI) or Estimated Safe and Adequate Daily Dietary Intake (ESADDI) for that vitamin or mineral, rather than requiring each serving of the food to meet this threshold. Additionally, the Act permits nutrition content claims about salt and sodium in relation to food (not beverages) that contains more than 1.15% alcohol by volume. These claims must still comply with the conditions specified in clause 11 and Schedule 1 of Standard 1.2.7.
Any breaches of the provisions in the Food Standards Australia New Zealand Act 1991, including the variations to the standards, may lead to civil or criminal consequences. While the explanatory statement does not explicitly detail the penalties, breaches of food standards regulations in Australia can typically result in substantial fines, enforcement actions, and legal proceedings. The maximum penalties can vary depending on the severity and nature of the breach, but they are intended to enforce compliance with the food standards to protect public health and safety. It is important for suppliers and manufacturers to ensure that their products and claims comply with the updated standards to avoid potential legal repercussions.