Making or varying a food standard: a quick guide


4 APRIL 2023

PDF Version [350KB]

Paula Pyburne
Law and Bills Digest Section

Background

Food Standards Australia New Zealand (FSANZ) is an independent statutory agency established by the Food Standards Australia New Zealand Act 1991 (FSANZ Act). FSANZ develops standards that regulate the use of ingredients, processing aids, colourings, additives, vitamins and minerals. Together the food standards comprise the Australia New Zealand Food Standards Code (the Code) which covers:

  • the composition of some foods, such as dairy, meat and beverages
  • foods developed by new technologies such as genetically modified foods
  • some labelling requirements for packaged and unpackaged food (such as mandatory warnings or advisory labels) and
  • Australia-only primary production and processing standards.

This Quick Guide describes the legal framework that is currently in place for making or varying a food standard and sets out the steps that need to be taken to do so.

Legal framework

On 3 November 2000, the Council of Australian Governments (COAG) signed an Inter‑Governmental Agreement to underpin a new food regulatory system. The Commonwealth and all the Australian states and territories are signatories to the Food Regulation Agreement.

A Treaty between Australia and New Zealand—the Agreement Between the Government of Australia and the Government of New Zealand Concerning a Joint Food Standards System—gives effect to New Zealand’s participation in the system. This was signed in 1995 and has been updated several times since then.

How it works

The system for food regulation divides responsibility for policy development, the provision of policy advice, developing and setting food standards and their subsequent enforcement between a number of bodies described below.

The Australia and New Zealand Ministerial Forum on Food Regulation (the Forum),[1] is comprised of the relevant ministers from Australian and New Zealand government jurisdictions and has both policy-setting and decision-making functions:

  • food policy is cooperatively made by the Forum (p. 8) and
  • the Forum Members are the decision-makers in the system. They approve all food standards and can also request that a draft standard be developed, reviewed, amended or rejected (p. 8‑9).

The Forum is supported by the Food Regulation Standing Committee (FRSC). FRSC members include government department and agency heads responsible for food regulation in each jurisdiction. The role of the FRSC is to coordinate and provide policy advice to the Forum, with a view to ensuring a nationally consistent approach to the implementation and enforcement of food standards and mapping out the steps required for developing a specific policy.

FSANZ develops and sets food standards which, if approved by the Forum, become part of food law in the states and territories and in New Zealand.

Authorities in Australia and New Zealand work closely together to ensure food laws are implemented and enforced consistently wherever possible. This is done by the Implementation Subcommittee for Food Regulation (ISFR). ISFR members include representatives from food regulation authorities in Australia and New Zealand.

Importantly, currently there is no simple legal mechanism outside this framework which allows the Federal Government to enact a law which makes a food standard.

What is food?

For the purposes of the FSANZ Act the term food is defined broadly. It includes any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption whether it is live, raw, prepared or partly prepared. It encompasses any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in the food and includes chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum (section 5).

Matters to be considered in making or varying a food standard

A food standard or a particular code of practice is referred to as a food regulatory measure. Once made, they are included in the Code. When developing a food regulatory measure FSANZ’s objectives are (in descending priority order):

  1. the protection of public health and safety
  2. the provision of adequate information relating to food to enable consumers to make informed choices and
  3. the prevention of misleading or deceptive conduct [subsection 18(1)].

The FSANZ Act sets out those matters that may be included in standards or variation of a food standard. They include but are not limited to the composition of the food; its production; handling; the knowledge, skill, health and hygiene of persons and businesses handling the food; and the information food businesses may be required to give state and territory authorities about the food (section 16). In addition, FSANZ must also have regard to various other matters, including basing standards on ‘the best available scientific evidence’ and the promotion of ‘consistency between domestic and international food standards’.

There are two procedures for considering an application:

  • the general procedure (Subdivision D in Division 1 of Part 3) (which can be modified for minor variations (Subdivision E in Division 1 of Part 3), or modified for developing new food regulatory measures and major variations (Subdivision F in Division 1 of Part 3)) and
  • the procedure for variations of the Nutrition, Health and Related Claims Standard (Subdivision G in Division 1 of Part 3).

FSANZ must adopt the general procedure in considering an application for the development of a food regulatory measure or the variation of a food regulatory measure, unless the application is one to which Subdivisions E, F or G apply. This Quick Guide sets out the general procedure below.

Steps in the process

Step 1

Any person or body may make an application to FSANZ for the development of, or variation of, a food regulatory measure (examples are available on the FSANZ website). The application must be in writing and in the form specified in FSANZ guidelines which are set out in the Food Standards Australia New Zealand Act 1991—Application Handbook (sections 22 and 23).

Step 2

FSANZ decides whether to accept or reject the application. That decision must be made within 15 business days of the application being made (subsection 26(1)). If the application is accepted, FSANZ proceeds to Step 3. In making this decision FSANZ takes into account:

  • whether the application complies with the manner and form requirements in subsection 22(2)
  • whether the application relates to a matter that may be developed as a food regulatory measure, or that warrants the variation of a food regulatory measure
  • whether the application is so similar to a previous application or proposal for the development or variation of a food regulatory measure that it ought to be rejected and
  • any other relevant matter (subsection 26(2)).

If the application is rejected that decision is subject to review by the Administrative Appeals Tribunal (AAT)—only if the reason for rejection was a reason other than that the application failed to comply with the manner and form requirements in subsection 22(2).

Step 3

FSANZ notifies the applicant of acceptance in writing setting out the steps it will adopt in considering the application. Depending on the nature of the application—for instance if it confers an exclusive capturable commercial benefit (being the benefit conferred on a person or body that may derive a financial gain from the coming into effect of the draft standard or draft variation of the standard prepared in response to the application, where any other person or body would require the agreement of the applicant to benefit financially from the approval of the application) or if it is to be expedited—a fee may be payable (Part 4 of the Food Standards Australia New Zealand Regulations 1994).

Step 4

If the application is accepted, FSANZ must give public notice of the application, indicating when it proposes to undertake key steps in considering it (section 28). FSANZ satisfies the requirement to give public notice provided that it publishes notice of the matter on the FSANZ website. Other notice requirements may arise in the course of the process.

Step 5

FSANZ assesses the application. The FSANZ Act provides for a 12 month consideration period commencing on the first day that the assessment procedure begins. The assessment of an application takes into account:

  • whether costs that would arise from a food regulatory measure developed or varied as a result of the application outweigh the direct and indirect benefits to the community, government or industry that would arise from the development or variation of the food regulatory measure
  • whether other measures would be more cost-effective than a food regulatory measure developed or varied as a result of the application
  • any relevant New Zealand standards and
  • any other relevant matters (section 29).

After assessing the application, FSANZ either rejects it or proceeds to the next step (paragraph 30(1)(b)). If the application falls within Subdivision F in Division 1 of Part 3 of the FSANZ Act—that is, an application for a new food standard or for a major variation of a food standard—the next step is Step 6. Otherwise, it is Step 7.

If the application is rejected at this step, the decision is subject to review by the AAT.

Step 6

FSANZ calls for public submissions by giving public notice which includes giving written notice to the applicant and any other person whom FSANZ considers appropriate. The public notice must, amongst other things, include a summary of the results of FSANZ’s assessment of the application, or state how a copy of the summary can be obtained and call for written submissions on matters relevant to the application to be provided within a specified period (section 44).

Step 7

FSANZ prepares a draft food standard or a draft variation of a food standard, as the case requires (paragraph 30(1)(a)). If FSANZ has called for submissions under Step 6, it must have regard to the submissions in doing so (section 45). If the content of the draft food standard or variation is different from what the applicant sought, or the relevant content was not sought in the application at all, FSANZ must give the applicant written notice of that fact and advise that it will call for submissions for the purpose of assessing the draft measure or draft variation (subsection 30(2)).

Step 8

Once the draft food standard or draft variation is prepared, FSANZ must again seek input before it can be finalised. If the application is for a minor variation, FSANZ calls for submissions about the relevant draft from the applicant and the members of the Forum (section 40).

In any other case, FSANZ calls for public submissions by public notice in the same way as for Step 6. The call for written submissions must also include information about the specific period during which submissions may be made (section 31).

Step 9

FSANZ decides to approve or reject draft

Once the submission period has ended, FSANZ must decide whether to approve the relevant draft or reject it, having regard to any submissions it received (subsections 33(1) and (2)). Once the decision is made, FSANZ must prepare a detailed report outlining, amongst other things:

  • a summary of the submissions received in relation to the draft standard or draft variation
  • FSANZ’s response to any issues raised in those submissions
  • whether the draft standard or draft variation was amended after submissions were made and, if so, the reasons for those amendments and
  • its reasons for approving or rejecting the draft standard or draft variation (section 33(3)).
FSANZ notifies the Forum

If the draft is approved by FSANZ, it must notify the Forum on Food Regulation and give public notice of the approval within 10 business days (section 34).

The Forum has 60 days after that notification to either request that FSANZ review the draft, or inform FSANZ that the Forum does not intend to request such a review. Where the Forum does not request a review FSANZ must comply with the publication requirements.

If the Forum exercises its power to request a review it must comply with both the Food Regulation Agreement and the Australia New Zealand Joint Food Standards Agreement (section 84).

Powers of the Forum

If the Forum has concerns with the draft standard or draft variation, it may give FSANZ directions about the conduct of the review (section 86). In that case, FSANZ must carry out the review in accordance with those directions and make a new decision in respect of the draft within 3 months of the date of the Forum’s request. That done, FSANZ may decide to re-affirm its approval of the draft with or without amendments, or decide to withdraw its approval of the draft. FSANZ must give the Forum written reasons for its decision within 10 business days of making it (section 87).

If FSANZ has decided to re-affirm its approval of the draft with or without amendments, the Forum has a further 60 days to consider the decision (section 88) and:

  • inform FSANZ that does not intend to amend or reject the draft (section 89)
  • by written instrument, amend the draft (section 90) or
  • reject the draft (section 91).

As a result of the above, in effect the Forum has final decision-making power over food standards.

Publication

Once any action by the Forum is complete, FSANZ prepares a notice stating the date on which the draft comes into effect and publishes the notice on its website and in the Gazette (section 92).

Step 10

The new food standard or the variation of a food standard comes into effect on the day specified in the notice (section 93).

 

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[1].   Australia and New Zealand Ministerial Forum on Food Regulation has been renamed as the Food Ministers’ Meeting. However, as the FSANZ Act has not been amended to reflect that change, this Quick Guide makes reference to the Forum.