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.
The Authority prepared Proposal M1018 which considered amending certain maximum residue limits (MRLs) in the Code for residues of agricultural and veterinary chemicals that may occur in food. The Authority considered the Proposal in accordance with Division 2 of Part 3 and has approved a draft Standard.
Following consideration by the Food Ministers’ Meeting (formerly 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 approved a draft variation to Schedule 20 to vary maximum residue limits MRLs for residues of agricultural and veterinary chemicals in food commodities. Section S20—3 currently lists the MRLs for agricultural and veterinary chemicals which may occur in foods, however if an MRL is not listed for a particular agricultural or veterinary chemical food combination or there is no All other foods except animal food commodities MRL, there must be no detectable residues of that chemical in that food. This general prohibition means that, in the absence of a relevant MRL in the Code, the food may not be sold where there are detectable residues.
MRL variations may be required to permit the sale of foods containing legitimate residues. These are technical amendments following APVMA legislated changes in use patterns of agricultural and veterinary chemicals available to chemical product users. These changes include crop uses such as a reduction from a food group MRL to an individual commodity or an increase/addition of an individual commodity MRL within a group, and the withdrawal of older products following a review. In regard to Australia’s WTO obligations, MRLs may be harmonised with international or trading partner standards. Internationally, farmers face different pest and disease pressures, agricultural and veterinary chemical use patterns and the legitimate residues in food associated with these uses may vary accordingly.
A risk assessment including a dietary exposure assessment was conducted prior to the variation of MRLs to ensure that the amended limits pose negligible public health and safety concerns to consumers.
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 M1018 included one round of public consultation following an assessment and the preparation of a draft Standard and associated reports. Submissions were called for on 1 February 2020 for a six-week consultation period domestically and sixty days through the WTO notification process.
A Regulation Impact Statement was not required because the approved variations to Schedule 20 are likely to have a minor impact on business and individuals and the OBPR previously provided a standing exemption (ID 12065).
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] varies Schedule 20.
Item [1.1] inserts chemicals not currently listed, in alphabetical order, including chemical name, residue definition, food commodity and new associated MRLs.
Item [1.2] omits the food commodities and associated MRLs for the chemicals listed.
Item [1.3] inserts the food commodities and associated MRLs for the chemicals listed.
Item [1.4] omits the food commodities and associated MRLs for the chemicals listed, substituting them with new MRLs.
Overview
The legislation in question is the Food Standards Australia New Zealand (Explanatory statement) Instrument 2021 (F2021L01174). Enacted to amend the Food Standards Australia New Zealand Act 1991, this legislation addresses the need to update and refine the maximum residue limits (MRLs) for agricultural and veterinary chemicals in the Australia New Zealand Food Standards Code. The MRLs are crucial for ensuring that food products containing residues of these chemicals do not pose a risk to public health. This legislative instrument was developed by Food Standards Australia New Zealand (the Authority) following a proposal (M1018) that underwent a thorough risk assessment and public consultation process. The policy objective of this legislation is to harmonise MRLs with international standards and to ensure that the amendments pose negligible public health concerns, while also facilitating the legitimate use and sale of food products containing residues of agricultural and veterinary chemicals.
Scope and Application
The Food Standards Australia New Zealand Act 1991 authorises the development and variation of food regulatory measures, including standards, for inclusion in the Australia New Zealand Food Standards Code. Specifically, the Act allows Food Standards Australia New Zealand to prepare proposals for amending maximum residue limits (MRLs) for agricultural and veterinary chemicals in food. Following consideration and approval by the Authority and the Food Ministers’ Meeting, the Authority must publish a notice about the draft variation of standards, which becomes a legislative instrument. These variations aim to adjust MRLs for residues of agricultural and veterinary chemicals in food commodities, ensuring they align with legislative changes, APVMA-approved use patterns, and international standards to maintain public health and safety. The variations apply to all food commodities and the entities involved in their production, processing, and sale, within Australia's jurisdiction. There are no documents incorporated by reference for these variations, and a single round of public consultation was conducted as part of the proposal process. This instrument is exempt from the requirement for a statement of compatibility with human rights and a Regulation Impact Statement due to its minor impact on business and individuals.
Key Provisions
The key operative sections of this legislation are sections 13, 92, and 94 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act), as well as the approved draft variation to Schedule 20 of the Australia New Zealand Food Standards Code (the Code). Section 13 of the FSANZ Act establishes the Authority's role in developing and varying food standards, including maximum residue limits (MRLs) for agricultural and veterinary chemicals in food. Section 92 requires the Authority to publish a notice about any standard or draft variation of a standard, while section 94 clarifies that such standards or variations are legislative instruments not subject to parliamentary disallowance or sunsetting under the Legislation Act 2003. The draft variation to Schedule 20 amends MRLs for specific chemicals and food commodities, reflecting changes in use patterns and international standards.
The Act imposes several obligations and requirements on the Authority and potentially on food businesses. The Authority must follow the procedures outlined in Division 2 of Part 3 of the FSANZ Act when considering proposals for the development or variation of food regulatory measures, including a round of public consultation. The Authority must also ensure that any variations to MRLs pose negligible public health and safety risks, as demonstrated through a risk assessment and dietary exposure assessment. Following the Authority's approval of the draft variation, the Authority must publish a notice about the standard as per section 92 of the FSANZ Act. Food businesses must then comply with the new MRLs, ensuring that any detectable residues in their products are within the specified limits.
Breaches of the new MRLs could have significant legal consequences. While the FSANZ Act does not explicitly state the penalties for non-compliance, the Food Act 1981 contains provisions that could apply. Under section 34 of the Food Act, a person who contravenes a food standard can be liable for a penalty of up to $66,000 for an individual and up to $330,000 for a body corporate. Additionally, selling food that does not comply with food standards is an offence under section 13 of the Food Act, which can result in fines of up to $1.1 million for an individual and $5.5 million for a body corporate. These penalties reflect the importance of adhering to food safety standards to protect public health.
The Authority must also ensure that the draft variation is compatible with Australia's obligations under the World Trade Organization (WTO) agreements. If the variation to MRLs is not aligned with international standards, it could potentially lead to trade disputes. Therefore, the Authority must carefully consider international standards and consult with relevant stakeholders to ensure that the variation does not adversely affect Australia's trading relationships. Furthermore, failure to adhere to the new MRLs could result in the seizure and destruction of non-compliant food products, as well as potential legal action against the responsible parties.