Strengthening pet food recall and reporting arrangements
5.1
A substantial proportion of the evidence received by the committee
focused on the need for stronger pet food recall provisions for unsafe pet
food.[1]
In support for such a system, submitters argued in favour of a central information
register or portal whereby notice can be provided of recalls and information
can be provided to pet owners and the wider community.[2]
This chapter explores the types of mechanisms which could provide the framework
for pet food recalls, and improve reporting in relation to recalled products.
5.2
To support the argument for stronger recall provisions, submitters drew to
the committee's attention the small number of pet food recalls that have been
undertaken in Australia over the last decade. Submitters advised that, without
a central authority to publish recall information, it is difficult to confirm the
exact number of recalls that have taken place. What is clear, however, is that
there have only been a few. These include: the recall of Kramar dogs treats in
2009; Weruva BFF cat food in 2017; and Advance Dermocare dry dog food in 2018.
By way of comparison, in the US there were approximately 20 pet food recalls
undertaken in 2017 alone.[3]
5.3
CHOICE noted that the difference in the number of recalls (between
Australia and the US) was not because pet food in Australia is any safer than pet
food in the US. Rather, it was because 'there's not a strong enough regulatory
environment to encourage businesses to proactively conduct voluntary recalls'
in Australia.[4]
5.4
Submitters made the point that consumers assume that if or when pet food
products are deemed unsafe, there are regulatory systems in place which would
mandate appropriate recall action.[5]
It was noted, however, that many consumers are surprised – if not shocked – to
learn that under the current self-regulatory regime, recall of pet food
products is voluntary. Product recalls are not managed by the PFIAA itself or
by way of the PetFAST reporting system, but rather, remain a matter for
individual businesses which make up the PFIAA membership.[6]
5.5
Noting that the absence of mandatory recall provisions serves as a 'gap
in the current system', Nestlé recommended that such provisions be introduced
in line with international best practice.[7]
However, given that the coverage and reporting of adverse pet food events is not
consistent, Nestlé also pointed out that requirements for a recall would need
to be clearly stated. Emphasising the need for mandatory recall provisions that
cover all adverse pet food events (which have an impact on pet health) Nestlé
described various provisions for recall which make up the current
'inconsistent' system:
- Therapeutic pet diets are covered under the Agricultural and
Veterinary Chemicals Code Act 1994 (AgVet Code), which includes a mandatory
reporting requirement for product that is not fit for purpose or for off-label
use.
-
A food safety issue in pet food that would also be an issue for
human food (for example – the presence of salmonella or listeria) is covered
under Australian Consumer Law and would trigger a recall.
- A food safety issue in pet food that would impact pet health but
not human health (for example – the presence of chocolate in dog food) is not
covered, and would not trigger a mandatory recall under Australian Consumer
Law. It would be up to the company to enact a voluntary recall.
- A nutritional deficiency in a nutritionally complete pet food
would not trigger a mandatory recall, whereas a nutritional deficiency in a
nutritionally complete human food would.[8]
Protections for consumers
5.6
CHOICE explained to the committee that some pet food companies (which
have attempted to issue voluntary recalls in the past) have not had the support
of the type of regulatory system that other food products benefit from. Because
there is currently no centralised site on which they can place relevant
information, some companies have chosen to provide information directly to
veterinarians, while others have attempted to publicise the situation on Product
Safety websites, or via public notices.[9]
5.7
CHOICE noted that the pet food industry was not taking advantage of the
regulatory system already in place, which provides support for businesses
seeking to conduct product recalls. As Ms Turner indicated, existing regulators
– including FSANZ and the ACCC – provide support to companies conducting
recalls by publishing recall information on a central website and prescribing
obligations with regard to notification.[10]
5.8
Australia's recall system in relation to general consumer groups is
largely voluntary; with state, territory and federal governments able to order
businesses to undertake recalls under certain circumstances. As noted, under
section 122 of the Australian Consumer Law, a compulsory recall can be ordered
by the Minister responsible if the goods 'will or may cause injury to any
person'. Alternatively, a compulsory recall can be ordered of a mandatory
safety standard has not been met and it appears to the Minister that the
suppliers of the goods have not taken 'satisfactory action to prevent those
goods causing injury to any person'.[11]
However, as CHOICE indicated, Australia's existing system for product safety
relies heavily on voluntary recalls as Ms Sarah Agar explained:
The law provides that the minister can conduct a mandatory
recall. It would appear that that threat in the background does encourage
businesses to act and conduct voluntary recalls fairly frequently. That's in
relation to goods that may injure humans, where the litigation risk—the damages
that could be sought—would be quite high. The balance seems to be being struck
there. I would suspect that, with pet food, the litigation risk would be lower
due to the types of damages that could be sought in comparison to a product safety
case. Introducing a system where a regulator does have the power to request a
recall, with some penalties placed behind that if businesses don't comply,
would certainly provide stronger incentives for businesses to more swiftly
conduct voluntary recalls for a pet food. [12]
5.9
CHOICE indicated that there remains a significant gap in relation to pet
food. As problems with pet food generally result in injuries to pets, not to
'persons', under the law, even if a mandatory standard for pet food were
introduced:
...it is unlikely that a compulsory recall could be ordered for
a product that failed to meet the standard unless it also posed as a threat to
human health.[13]
5.10
In the context of product safety, CHOICE called for three minimum
protections for consumers with regard to pet food. These included:
- greater incentives for businesses to conduct voluntary recalls –
with a regulator empowered to request or require that a recall be conducted;
-
notification requirements on businesses that choose to conduct a
recall that are similar to product safety recall requirements; and the
- establishment of a central register to enable the general public
to view what pet food has been recalled and why.[14]
5.11
With regard to incentives for businesses, CHOICE noted that most recalls
of unsafe consumer goods are voluntary, with only a small number of compulsory
recalls having to be ordered. This is because of the incentives in place that
encourage businesses to recall consumer goods that may harm people. Yet, as
CHOICE explained, these same incentives do not exist, or are certainly not as
strong, in relation to pet food:
If a number of people are injured or killed by a product and
the business fails to take appropriate steps to recall that product, that business
could face very serious, costly court action. If pets are injured or killed by
substandard pet food, the financial risk for a business is lower. A person
could sue a pet food company for the cost of the poor quality food, and the
cost of either their vet bills, if the pet became sick, or the market value of
a new pet, if the pet died. This means that a business selling contaminated pet
food may be less likely in all the circumstances to choose to conduct a
voluntary recall than a business selling contaminated or dangerous food
intended for people.[15]
5.12
CHOICE suggested that an independent regulator be given the power to
request or to require businesses to conduct recalls of pet food, if it has
reason to believe that the food could cause injury to any person or animal, or
if they have failed to meet the standard that they are required to meet. In
addition, businesses should be required to notify the regulator when action is
taken to remove a pet food product from the market, and all pet food recall
notifications should be published in a central location. Finally, CHOICE argued
in favour of the imposition of strong penalties for businesses that do not
comply with these requirements.[16]
5.13
RSPCA Australia added that recalls can be extremely damaging to
manufacturers, costing 'millions of dollars' and having large 'reputational
costs'. As such, there is little incentive for pet food manufacturers to issue
recalls without a mandatory requirement.[17]
Rather than relying on 'good corporate citizens' to take action, submitters
recommended a stronger regulatory regime to fill 'a key gap in the current
system'.[18]
Timeliness of recalls
5.14
Alongside the need for clearer recall provisions, witnesses drew the
committee's attention to other issues with regard to the current system including
the timeliness of recalls and the timely reporting of recalled product. Many
witnesses were of the view that as part of a recall framework, companies should
be required to recall products to facilitate investigation into the food.[19]
The point was repeatedly made that such timely action would prevent potential
harm to pets whilst investigations are underway.
5.15
In the case of Advance Dermocare, a number of submitters argued that the
recall should have taken place as soon as the first cases of megaesophagus were
reported.[20]
According to the manufacturer of Advance Dermocare, Mars Petcare, the recall
took place within 24 hours of advice regarding two household dogs with
megaesophagus.[21]
The committee was told that:
Mars Petcare was first notified in late December 2017 that a
small number of service dogs in Victoria had been diagnosed with megaoesophagus
and had consumed ADVANCE Dermocare dry dog food. We immediately began
investigations together with U-Vet, Victoria Police and consulted with the AVA.
As a result of the unique environment in which service dogs operate, we
believed this issue was an isolated one.
On 23 March 2018, we were advised by the AVA that two
household dogs that had consumed our product had become sick with
megaoesophagus. We recalled ADVANCE Dermocare dry dog food within 24 hours of
this notification. Our investigations continue at pace to support the
independent investigation by U-Vet, and additional external veterinary experts.
No root cause has been identified.
This recall was the right thing to do. We support increased
regulation for pet food that strengthens our local industry and demands the
very best for pets.[22]
5.16
Despite Mars' response, however, many submitters pointed out that the
recall occurred three full months after the initial reports of megaesophagus.
Dr Richard Malik commented that Mars' decision to recall the product in March
2018 was 'just too slow',[23]
while Mrs Melanie Christie referred to the response as 'an utter failure'.[24]
5.17
Others questioned whether the recall would have been conducted at all
had the media not reported on the story.[25]
Ms Jodi Burnett noted:
The police went public with their story in a radio interview
on 23rd March...Am I being cynical, or is it not a coincidence that
Mars Petcare Australia issued a voluntary recall the very next day?[26]
5.18
The point was also made that a specific and transparent, time frame for
recalls would 'certainly provide stronger incentives for businesses to more
swiftly conduct voluntary recalls for a pet food'.[27]
5.19
In terms of timely intervention, Dr Malik suggested a staged approach
whereby an early quarantine regime would underpin the recall system. Drawing on
the recent cases of listeria found in rockmelon,[28]
Dr Malik recommended a process whereby products could be removed immediately
from sale where there is a risk to pet health. Thereafter, further testing and
evidence‑gathering could be conducted to identify the exact cause, with a
complete recall initiated where necessary.[29]
Similarly, Ms Karin Strehlow made the point that recalls should be based on the
'precautionary principle', whereby products are taken off the shelf even if the
scientific data confirming correlation and causation is not yet available.[30]
5.20
This approach was also supported by Dr Andrew Spanner who explained
that:
We don't need to know the cause. The history of cholera is a
good example. The pump in London that caused cholera was closed down 30 years
before anyone knew what cholera did and how it happened. They just knew that
that pump caused cholera. This product causes kidney failure. We don't need to know
why. We hopefully will find out why one day; we don't know right now.[31]
Central information portal
5.21
To ensure consumers are adequately informed about pet food recalls in a
timely manner, a number of submitters recommended the publication of all recall
notifications on a central register or information portal.[32]
5.22
Such a system would avoid the experience of pet owners with regard to
the Advance Dermocare recall. According to Ms Rach Dola, Advance Dermocare was
advertised as 'sold out' by one major pet food retailer three months after its
recall, without any explanation as to the circumstances.[33]
5.23
Ms Teresa Tassone went further to recommend that there be a requirement
on pet food stores to notify and communicate any recalls to their database of
consumers—a view that was also supported by Ms Rach Dola who stated that it
should be 'legally required to provide urgent information via this resource' in
the case of a recall.[34]
5.24
According to a number of submitters, an information portal would also
assist. It would alleviate confusion about the delineation between pet food and
pet treats, and promote greater public education about overall animal
nutrition. Such an information hub would also reduce the continued reliance on
social and media communication, which can often lead to misinformation and the 'muddling'
of facts.[35]
5.25
Submitters also noted that an 'unbiased' source of information would
ensure that pet owners are educated about 'species-appropriate diets' and pet
nutrition, without the influence of pet food companies and others with an
interest in promoting particular pet food products.[36]
5.26
Ms Sarah Agar from CHOICE remarked that the information could be managed
in a way that is similar to the USFDA website which lists both human products
and pet food products. While the issues around how to format the information
(and how it would be presented) was debated in evidence, it was agreed that a
key objective would be: 'that consumers and pet owners are aware that there is
one spot where they can go and find out whether or not any pet food currently
on the market may endanger their pets'.[37]
A way forward
5.27
The committee considered the evidence regarding an appropriate agency to
manage pet food recalls and have the authority to report on recalls and related
matters.
5.28
In its 2012 report, the PFCWG noted that a report and tracking system
could be accommodated by the ACCC or FSANZ. It explained that such a system
could be established by way of legislative amendment and additional funds to
enable such agencies to fulfil recall functions for pet food.[38]
5.29
Drawing on arrangements currently in place in relation to human food,
many submitters identified FSANZ as the appropriate recall authority. However, FSANZ's
General Manager, Mr Peter May, explained that it does not have recall powers
with regard to human food, and that these powers essentially rest with the
states and territories. Mr May explained the organisation's role:
FSANZ does not have the capability or capacity to develop
standards for products that are not in the human food supply chain. FSANZ is
not the food regulator. It has no regulatory powers. FSANZ's functions include,
in addition to the power to develop food standards, which are then subject to
legislative approval by the Ministerial Forum, a power to coordinate recalls in
cooperation with state and territory authorities. FSANZ does not have recall
powers itself, and almost all recalls are initiated by the supplier after
consultation with a state authority. Very rarely, a recall will rely on the
exercise of a state's recall powers. FSANZ does not initiate recalls and has no
authority to do so. [39]
5.30
As FSANZ is underpinned by two intergovernmental agreements, any
suggested change, such as a change to the definition of food from that for
'human consumption', would require the agreement of all parties to these
agreements. Furthermore, New Zealand already has its own legislation to deal
with pet food, and does not have to deal with pet food under its food acts.
These factors, and a number of others, make the utilisation of FSANZ extremely
difficult for the purposes of pet food regulation.
5.31
The Animal Welfare Coalition of WA argued that Product Safety Australia,
a website managed by the ACCC, which already has oversight of a range of
products, including many related to animals may be better suited to take on the
role than FSANZ.[40]
Similarly, CHOICE held the view that the existing ACCC Product Safety Australia
website would be a suitable place to display pet food recall information.[41]
5.32
It became clear to the committee that under Australian Consumer Law,
there are a number of provisions that already apply to the pet food industry,
including both manufacturers and supplies of pet food. Where a manufacturer or
supplier has breached one of the prohibitions, they may be subject to a civil
penalty under section 224 of the Australian Consumer Law.
5.33
In addition, a number of consumer guarantees already apply to pet food
under the law. Furthermore, once a pet food manufacturer initiates a voluntary
recall, they are then subject to the normal recall processes as stipulated by
the ACCC.[42]
In addition, and as previously noted, the ACCC can recommend that the
responsible Commonwealth Minister initiate a compulsory recall in order to
protect the public from an unsafe product. In this circumstance, the ACCC would
direct the manner in which the compulsory recall was to occur and would enforce
compliance. Under these circumstances, the product safety recall process would involve
a series of steps; as detailed in the ACCC Product Safety Recall Guidelines.[43]
5.34
It should be noted that some pet food products that have been subject to
voluntary recall have been listed on the Product Safety Australia website. One
of them was a Mars Petcare Australia recall of Whiskas adult aged 1–7 years
chicken and rabbit flavour dry cat food (1 kg box) which took place in
September 2013.[44]
The recall notice explained that the reason for the recall was the possibility
that a small number of boxes could contain pieces of hard plastic, suspected to
be between 5 to 25 mm in size.
5.35
Australian Consumer Law does, therefore, already provide a mechanism for
voluntary recall, the prospect of mandatory recall under certain circumstances,
as well as offences and civil penalties (which are applicable to suppliers and
manufacturers – including pet food processors).
5.36
The suggestion was made therefore, that the current mechanisms should be
used without introducing further regulation. To this end, the Animal Welfare
Coalition WA suggested that the ACCC's track-record demonstrated an ability to
accept consumer reports and complaints, announce product recalls, and oversee a
range of products relating to animals. It was argued that by empowering the
ACCC to regulate pet food, the Australian Standard could be attached to the
existing Competition and Consumer Act 2010 and subsequently enforced.[45]
The committee appreciates that, for reasons including practicality,
cost-effectiveness and efficiency, this prospect should be fully explored.
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