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 P1019 - Carbon Monoxide as a Processing Aid for Fish to ensure that carbon monoxide is not permitted to be used as a processing aid for fish. The Authority considered the Proposal in accordance with Division 2 of Part 3 and has approved a draft Standard.
Following consideration by the COAG Legislative and Governance 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 variation to the Code to clarify that Standard 1.3.3 does not permit the use of carbon monoxide as a processing aid for fish.
Clause 3 of Standard 1.3.3 provides that carbon monoxide may be used as a processing aid in any foods. However, this permission does not apply where carbon monoxide performs a technological function in the final food. That is, where it results in colouring or colour fixing in the final food. To avoid confusion, the Standard is varied to make it clear that carbon monoxide may not be used in the processing of fish of food to fix or alter the colour of the flesh of the fish. This reflects the current prohibition on this use of carbon monoxide set by Standard 1.3.1.
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 P1019 has included one round of public consultation following an assessment and the preparation of a draft Standard and associated report. Submissions were called for on 17 December 2012 for an eight-week consultation period.
A Regulatory Impact Statement (RIS) was not required because the proposed variations to Standard 1.3.3 are intended to clarify existing requirements.
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] amends clause 3 to reflect the insertion of clause 3A into the Standard.
Item [1.2] inserts clause 3A into the Standard. Subclause 3A(1) provides that carbon monoxide must not be used in the processing of fish as a food where its use results in a change to or fixes the colour of the flesh of the fish. Subclause 3A(2) clarifies that the restriction imposed by subclause 3A(1) on the use of carbon dioxide during the processing of fish does not apply to the process of smoking. This recognises that carbon monoxide is a natural component of smoke. Subclause 3A(3) provides that the stock in trade exemption provided by subclause 1(2) of Standard 1.1.1 does not apply in relation to the variation made by this Item.
Item [1.3] updates the Standard’s Table of Provisions to reflect the insertion of new clause 3A.
[1] Previously known as the Australia and New Zealand Food Regulation Ministerial Council
Overview
The Food Standards Australia New Zealand Act 1991 was enacted to establish the framework for food standards and variations within Australia and New Zealand, overseen by Food Standards Australia New Zealand (FSANZ). This Act addresses the need for a unified and regulated approach to food safety and standards across both countries. The legislation provides FSANZ with the authority to develop, propose, and implement food regulatory measures, including standards, through a structured process that involves public consultation and consideration by relevant forums such as the COAG Legislative and Governance Forum on Food Regulation. The explanatory statement outlines a specific instance where FSANZ has proposed a variation to the Australia New Zealand Food Standards Code, clarifying that carbon monoxide cannot be used as a processing aid for fish to alter or fix the colour of the flesh, thereby aligning with existing prohibitions. This amendment aims to prevent confusion and ensure clarity in regulatory compliance. The enactment of this variation follows a round of public consultation and is consistent with the legislative procedures outlined in the FSANZ Act.
Scope and Application
The Act applies to Food Standards Australia New Zealand (FSANZ), which is responsible for developing and varying food regulatory measures, including standards, for inclusion in the Australia New Zealand Food Standards Code. The Act pertains to the use of carbon monoxide as a processing aid for fish, clarifying that it cannot be used to alter or fix the colour of fish flesh, with an exemption for smoking processes due to the natural presence of carbon monoxide in smoke. This legislation affects food processors and industries involved in fish processing. Geographically, the Act applies across the Commonwealth of Australia, ensuring a unified regulatory approach to food safety and standards. The Act does not require parliamentary disallowance or sunsetting as it is a non-disallowable instrument under section 94 of the FSANZ Act. The Authority's consideration of the proposal included a public consultation process, and no documents are incorporated by reference in this variation.
Key Provisions
The key provisions of the legislation, outlined in Item [1] of the draft instrument, specify a variation to the Australia New Zealand Food Standards Code, particularly focusing on Standard 1.3.3 concerning processing aids. This variation, as stated in Item [1.2], introduces a new clause 3A to clarify that carbon monoxide cannot be used as a processing aid in the processing of fish if it results in a change to or fixing the colour of the fish flesh. This amendment is significant as it aligns the use of carbon monoxide with existing prohibitions under Standard 1.3.1. The variation is designed to ensure there is no confusion about the use of carbon monoxide as a processing aid in fish products, thereby maintaining food safety and quality standards.
The obligations imposed by this Act on Food Standards Australia New Zealand (FSANZ) include the responsibility to develop and approve standards and variations that reflect current scientific and technological understanding of food safety and quality. In this instance, FSANZ has followed the prescribed procedure under the FSANZ Act, which includes public consultation as outlined in Division 2 of Part 3. The Authority must also ensure that any draft standard or variation is published as a legislative instrument under section 92 of the FSANZ Act, and it is subject to the provisions outlined in section 94 regarding disallowance and sunsetting.
Breaches of the standards set forth in this legislation can lead to serious civil or criminal consequences. Although specific offences, penalties, or consequences are not detailed within the explanatory statement, it is reasonable to infer that non-compliance with the food standards could result in legal action under the FSANZ Act or other relevant legislation. Such actions might include fines, imprisonment, or other penalties that are typically associated with food safety violations in Australia. The severity of these consequences would depend on the nature and extent of the breach, as well as any relevant state or territory laws that may also apply.