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.
The Authority prepared Proposal P1054 to amend the Code to prohibit the retail sale of pure and highly concentrated caffeine food products.
Following its preparation, Proposal P1054 was declared an Urgent Proposal for the purposes of the Division 4 of Part 3 of the FSANZ Act.
The Authority considered the Proposal in accordance with sections 96 and 97 of the FSANZ Act and has approved a variation.
2. Purpose
The Authority has approved a variation to amend Standard 1.1.1 of the Code to prohibit total caffeine present in a concentration of 1% (1 000 mg/100 mL, liquid form) or 5% (5 000 mg/100g, powder and gel or other dry form) or more in the product presented at retail sale.
3. Documents incorporated by reference
The variations to food regulatory measures do not incorporate any documents by reference.
4. Consultation
The Authority considered the Proposal in accordance with the procedure in Division 4 of Part 3 of the FSANZ Act. That consideration included one round of public consultation following an initial consideration and the preparation of a draft variation and associated assessment summary. After that public consultation, the Authority had regard to all submissions received and approved an amended version of the draft variation.
The approved variation must be reviewed by the Authority within 12 months of its notification in accordance with Subdivision B of Division 4 of Part 3 of the FSANZ Act. Further public consultation is required as a part of that assessment.
A Regulation Impact Statement was not required. The Authority submitted a preliminary assessment to the Office of Best Practice Regulator (OBPR) seeking advice on a regulatory intervention in relation to Proposal P1054. On 4 October 2019, the OBPR advised the Authority that a COAG Regulation Impact Statement was not required to inform the decision by the Authority to approve, amend or reject the draft variation.
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 Standard 1.1.1 by inserting a new paragraph into subsection 1.1.1—10 (5).
The new paragraph is paragraph 1.1.1—10 (5)(g). The new paragraph provides that, unless expressly permitted by the Code, a food for retail sale cannot be a food that contains caffeine in a concentration of
(i) 5% or more of the food for sale if that food is a solid or semi-solid food; or
(ii) 1% or more of the food for sale if that food is a liquid.
The new paragraph will apply this maximum limit for caffeine to all foods for retail sale.
An example of a semi-solid food is a gel.
The reference to ‘caffeine ’ in paragraph 1.1.1—10 (5)(g) includes caffeine that occurs or is present in the food for sale naturally. The exception provided by subsection 1.1.1—10(7) of the Code for foods (such as caffeine) that occur or are present in the food for sale naturally does not apply to a prohibition imposed by subsection 1.1.1—10(5) and, therefore, to the prohibition imposed by the new paragraph.
The new paragraph cannot - and does not – itself constitute a permission for the purposes of the Code to add caffeine to all foods (e.g., for the purposes of the prohibitions imposed by other paragraphs in subsection 1.1.1—10 (5)) or by subsection 1.1.1—10 (6)).
Overview
The Food Standards Australia New Zealand Act 1991 was enacted to provide a framework for the development and administration of food standards, aiming to ensure the safety and quality of food available in Australia and New Zealand. The legislation addresses the need for a unified and scientifically based approach to food regulation, facilitating trade and protecting consumer health. Enacted by the Australian Parliament, the Act empowers Food Standards Australia New Zealand (FSANZ) to develop and manage food standards, including the Australia New Zealand Food Standards Code. The policy objective is to protect public health and safety through the regulation of food standards. As part of its ongoing function, FSANZ has introduced variations to these standards, such as the recent amendment to prohibit the retail sale of pure and highly concentrated caffeine products, which seeks to mitigate potential health risks associated with high caffeine concentrations in food items.
Scope and Application
The Australia New Zealand Food Standards Code Amendment (Caffeine in Foods) Instrument 2019 (No. 1) is an instrument made under the Food Standards Australia New Zealand Act 1991, which empowers Food Standards Australia New Zealand (FSANZ) to develop and vary food standards. This particular amendment applies to all foods for retail sale, and its purpose is to prohibit the sale of foods containing caffeine at concentrations of 5% or more if the food is a solid or semi-solid, and 1% or more if it is a liquid. The amendment applies to the whole of Australia and to any entities involved in the sale of food products within the country, including food manufacturers, importers, distributors, and retailers. The amendment does not apply to any foods that are not intended for retail sale, and it does not affect the consumption of caffeinated products outside of the retail context. The amendment is subject to review within 12 months of its notification, and further public consultation is required as part of that assessment. The amendment does not incorporate any documents by reference, and a Regulation Impact Statement was not required. The amendment 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.
Key Provisions
The legislation F2019L01607 concerns a variation to the Australia New Zealand Food Standards Code, specifically targeting the concentration of caffeine in retail food products. According to section 13 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act), the Authority is responsible for developing and varying food regulatory measures. In this case, Proposal P1054 was prepared to amend Standard 1.1.1 of the Code, prohibiting the sale of pure and highly concentrated caffeine products at retail. The Authority has approved this variation to prohibit the retail sale of foods containing caffeine at a concentration of 1% or more in liquid form, or 5% or more in solid or semi-solid forms. This amendment inserts a new paragraph (1.1.1-10(5)(g)) into subsection 1.1.1-10(5) of the Code.
The new provision imposes obligations on entities selling food products. Retailers must ensure that any food products they sell do not exceed the specified caffeine concentrations. This includes checking that products comply with the new standards and refraining from selling foods that contain caffeine at the prohibited levels. The Authority will review the variation within 12 months, as stipulated in Subdivision B of Division 4 of Part 3 of the FSANZ Act, and may require further public consultation as part of this review. The Authority considered the proposal in line with the FSANZ Act, including a round of public consultation before approving the amended draft variation.
Failure to comply with the new standards could result in significant consequences. While the explanatory statement does not explicitly detail specific offences or penalties, non-compliance with food standards in Australia can typically result in regulatory action, including fines and potential criminal charges, depending on the severity and frequency of the breach. The FSANZ Act and associated regulations provide for enforcement actions by authorised officers, which can include infringement notices and court proceedings. The precise penalties may vary based on the specific circumstances and relevant state or territory laws.
The Authority's decision to approve the variation was made following a preliminary assessment by the Office of Best Practice Regulator (OBPR), which determined that a COAG Regulation Impact Statement was not necessary. Additionally, the 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. This ensures that the legislative changes align with the overarching objectives of food safety and public health.