Food Standards (Proposal P1037– Amendments associated with Nutrition Content & Health Claims) Variation

Administered by Department of Health, Disability and Ageing

Legislation au F2015L01930 Not in force Legislative Instrument

Legislation content

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 P1037 to improve the clarity of provisions of Standard 1.2.7 – Nutrition, Health and Related Claims and related standards and to ensure that Standard 1.2.7 operates as intended. Proposal P1037 was also prepared to exempt certain elements of the Health Star Rating (HSR) system from the Code’s requirements.

 

The Authority considered the Proposal in accordance with Division 2 of Part 3 and has prepared a draft Standard.

 

Following consideration by the Australia and New Zealand Ministerial Forum on Food Regulation10F10F[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 and operation

 

The Authority has prepared a draft variation to amend the Code to clarify the operation of Standard 1.2.7 and related standards and to exempt certain elements of the HSR system from the Code’s requirements for claims.

 

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 P1037 included one round of public consultation following an assessment and the preparation of a draft Standard and associated report.

 

A call for submissions (which included the draft variation) was released for a six-week consultation period.

 

A Regulation Impact Statement was not required because the proposed variations are likely to have only a minor regulatory impact on business, community organisations or individuals.

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 97 of the FSANZ Act.

 

6. Variations

 

Item [1] of the Schedule varies Standard 1.1.1.

 

Item [1.1] inserts new clause 1A into Standard 1.1.1.

 

The new clause provides a transition period and a stock-in-trade exemption for prescribed variations made by the instrument. The prescribed variations are all the variations made by Schedule with the exception of the variations made by items 1.2, 2.3 and 3.1.

 

During the transition period, food can comply with either the Code as in force as if the prescribed variations had not taken effect or with the Code as amended by those variations, but not both. The transition period is from the date that the instrument commences to 18 January 2017. This period aligns with the end of the current transition period for Standard 1.2.7.

The exemption for stock-in-trade will operate from 18 January 2017 for a period of 12 months. In this period, food that does not comply with the Code as amended by the prescribed variations will be deemed to be compliant with the Code if that food otherwise complied with the Code before 18 January 2017. 

 

Item [1.2] inserts new clause 2A into Standard 1.1.1 to provide a definition of the term ‘Permitted Health Star Rating symbol’. Subclause 2A(1) provides that a Permitted Health Star Rating symbol means an image subject to an Australian Trade Marks numbered 1641445, 1641446 or 1641447 or a New Zealand Trade Mark numbered 1018807, 1018808 or 1018809. Subclause 2A(2) recognises the fact that the Health Star Rating system and the relevant trademarks provide for the trademarked images to be used to indicate varying levels of energy or nutrient content. The subclause makes clear that any such variations do not affect an image’s status as a Permitted Health Star Rating symbol for the purposes of the Code.

 

Item [1.3] updates the Table of Provisions to refer to new clauses 1A and 2A.

 

Item [2] of the Schedule varies Standard 1.2.7.

 

Item [2.1] inserts an Editorial Note after clause 1. The Editorial Note draws attention to the fact that Standard 1.2.8 may impose additional labelling requirements for claims regulated by Standard 1.2.7.

 

Item [2.2] varies clause 5 of Standard 1.2.7 to provide that that Standard does not apply to a Permitted Health Star Rating symbol.

 

Item [2.3] corrects a typographical error in paragraph 18(1)(b). It replaces ‘subparagraph’ with ‘paragraph’.

 

Item [2.4] amends the entry for ‘Lactose’ in Schedule 1 to remove the condition that the nutrition information panel indicate the lactose and galactose content.

 

Item [2.5] amends the entry for ‘Salt or sodium’ in Schedule 1 to remove the condition that the nutrition information panel indicate the potassium content.

Item [2.6] replaces the entry for ‘Omega-3 fatty acids’ in Schedule 1 to remove the condition that the nutrition information panel indicate the type and amount of omega-3 fatty acids.

 

Item [2.7] varies subitems 2(1) and 3(1) in Schedule 5. It replaces references to ‘the content of energy and each nutrient’ with ‘the average energy content and the average quantity of each nutrient’ listed in Table 1.

 

Item [2.8] removes the word ‘sources’ from paragraph 4(6)(c) in Schedule 5.

 

Item [2.9] removes the word ‘sources’ from subitem 4(8) in Schedule 5.

 

Item [2.10] removes the word ‘total from Tables 1 and 2 in Schedule 5.

 

Item [2.11] varies Tables 1 and 2 in Schedule 5. It replaces ‘Average saturated fatty acids’ with ‘Average quantity of saturated fatty acids’.

 

Item [2.12] varies Tables 1 and 2 in Schedule 5. It replaces ‘Average sodium’ with ‘Average quantity of sodium’.

 

Item [2.13] varies subitem 5(1) in Schedule 5 to replace ‘the amount of protein’ with ‘the average quantity of protein’.

 

Item [2.14] varies subitem 6(1) in Schedule 5 to replace ‘the amount of protein’ with ‘the average quantity of protein’.

 

Item [3] varies Standard 1.2.8.

 

Item [3.1] varies subclause 4(1) of Standard 1.2.8 to provide that a claim requiring nutrition information does not include a Permitted Health Star Rating symbol.

 

Item [3.2] varies subclause 4(4). It replaces ‘clause 8’ with ‘clauses 8 and 8A’.

 

Item [3.3] varies paragraph 5(1)(e). It replaces ‘saturated fat’ with ‘saturated fatty acids’.

 

Item [3.4] inserts new subclauses (4A), (4B) and (4C) into clause 5. 

New subclause (4A) requires that the nutrition information panel must include a declaration of the average amount of galactose where a claim requiring nutrition information is made in relation to lactose. That declaration must be made in accordance with subclause 5(7) of Standard 1.2.8. This moves and amends a requirement that was in Schedule 1 of Standard 1.2.7.

 

New subclause (4B) requires that the nutrition information panel must include a declaration of the average amount of potassium where a claim requiring nutrition information is made in relation to salt or sodium. That declaration must be made in accordance with subclause 5(7) of Standard 1.2.8. This moves and amends a requirement that was in Schedule 1 of Standard 1.2.7.

 

New subclause (4C) requires that, where a claim requiring nutrition information is made in relation to omega-3 fatty acids, the nutrition information panel must include a declaration of the average quantity of each type of omega-3 fatty acids and a declaration of the average quantity of the total of omega-3 fatty acids. Those declarations must be made in accordance with subclause 5(7) of Standard 1.2.8. This moves and amends a requirement that was in Schedule 1 of Standard 1.2.7.


Item [3.5] varies subclause 5(7) to include references to new subclauses (4A), (4B) and (4C).

 

Item [3.6] replaces the Table to subclause 8(3) with a new Table. The new Table changes the requirements for some particulars that must be included on the label for certain claims requiring additional nutrition information.

 

Item [3.7] varies paragraph 8(5)(b) to remove the reference to ‘metric cup’.

 

Item [3.8] varies subclause 8A(2). It replaces ‘of unavailable carbohydrate’ with ‘of the average quantity of unavailable carbohydrate per serving of the food’.

 

Item [3.9] varies subclause 8A(4). It replaces ‘presence of relevant substances’ with ‘the average quantity of the substances per serving of the food’.

 

Item [4] varies subclause 9(1) of Standard 2.9.2 to insert references to subclause 4(4) and clause 8A of Standard 1.2.8 and to clarify the operation of subclause 9(1) of Standard 2.9.2.

 

 

 

[1] convening as the Australia and New Zealand Food Regulation Ministerial Council

Overview

The Food Standards Australia New Zealand Amendment Instrument 2015 (No. 1) (F2015L01930) was enacted in 2015 under the authority of the Food Standards Australia New Zealand Act 1991 (FSANZ Act). The primary objective of this legislation was to address gaps and problems in the clarity of provisions in Standard 1.2.7 – Nutrition, Health and Related Claims and related standards, and to ensure that these standards operate as intended. This was achieved by preparing Proposal P1037, which was subsequently considered and drafted by Food Standards Australia New Zealand (FSANZ) in accordance with the FSANZ Act. After consideration by the Australia and New Zealand Ministerial Forum on Food Regulation, the Authority published a notice about the draft standard, as required by section 92 of the FSANZ Act. The variations made by this Instrument are not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003, as specified in section 94 of the FSANZ Act. The legislation aims to clarify the operation of Standard 1.2.7 and related standards, particularly in relation to the Health Star Rating (HSR) system, and to exempt certain elements of the HSR system from the Code’s requirements for claims. This was achieved through one round of public consultation following the assessment and preparation of a draft Standard and associated report. The proposed variations are likely to have only a minor regulatory impact on businesses, community organisations, or individuals, and hence a Regulation Impact Statement was not required. The variations made by this Instrument are exempt from the requirements for a statement of compatibility with human rights as they are non-disallowable instruments under section 97 of the FSANZ Act.

Scope and Application

The Australia New Zealand Food Standards Code (Variation) Instrument 2015 (F2015L01930) applies to all persons and entities involved in the food industry within Australia and New Zealand. The instrument amends the Australia New Zealand Food Standards Code to clarify the operation of Standard 1.2.7 – Nutrition, Health and Related Claims and related standards and to exempt certain elements of the Health Star Rating (HSR) system from the Code’s requirements for claims. This includes clarifying the definitions and operational scope of health and nutrition claims, as well as modifying the requirements for nutrition information panels and labels. The variations introduced by the instrument are designed to ensure that food products comply with the updated standards and that the Health Star Rating system operates effectively within the regulatory framework. The instrument’s provisions are applicable across both countries and are intended to maintain consistent food safety and labelling standards throughout the region. The instrument is exempt from the requirements for a statement of compatibility with human rights as it is a non-disallowable instrument under section 97 of the Food Standards Australia New Zealand Act 1991. While the variations do not incorporate any documents by reference, the Authority conducted a public consultation as part of its consideration of the proposal. A Regulation Impact Statement was not required due to the minor regulatory impact of the proposed variations. The instrument’s application is extended through subordinate instruments, which may provide further details or clarifications on the implementation and enforcement of the amended standards.

Key Provisions

The main operative sections of this legislation pertain to the drafting and publication of variations to food regulatory measures, specifically focusing on Standard 1.2.7 – Nutrition, Health and Related Claims and related standards (Items 1 and 2 of the Schedule), and Standard 1.2.8 (Items 3 and 4 of the Schedule). The key provisions include the introduction of a transition period for compliance with the new standards, the exemption of certain elements of the Health Star Rating (HSR) system from the Code’s requirements for claims, and updates to various clauses and tables to clarify and refine the operation of these standards (Items 1.1 to 1.3, 2.1 to 2.14, and 3.1 to 3.9). These changes aim to improve the clarity and effectiveness of the nutrition, health, and related claims provisions in the Code. The legislation imposes specific obligations on the parties or entities it governs. Food Standards Australia New Zealand (FSANZ) must prepare proposals for the development or variation of food regulatory measures, ensuring they are in line with the FSANZ Act. FSANZ is also mandated to publish notices about the standard or draft variation of a standard, as per section 92 of the FSANZ Act. Additionally, FSANZ must consider public submissions and prepare a draft standard, as stipulated in Division 2 of Part 3 of the FSANZ Act. The Australia and New Zealand Ministerial Forum on Food Regulation must review and consider the proposals and draft standards prepared by FSANZ. Breaches of the provisions in this legislation could result in civil or criminal consequences, depending on the nature and severity of the violation. For example, non-compliance with the new standards during the transition period could result in penalties or enforcement actions. The maximum penalties for breaches of food safety standards under the FSANZ Act can include fines and imprisonment, as outlined in the relevant sections of the Act. However, specific penalties are not detailed in the Explanatory Statement and would need to be referenced in the FSANZ Act itself. This legislation also specifies that the variations made to the food regulatory measures are not subject to parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003, as per section 94 of the FSANZ Act. The variations are intended to have a minor regulatory impact, and therefore, a Regulation Impact Statement was not required. The instrument is exempt from the requirements for a statement of compatibility with human rights, as it is a non-disallowable instrument under section 97 of the FSANZ Act. These provisions ensure that the changes to the standards are implemented smoothly and effectively, with appropriate oversight and accountability mechanisms in place.

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