BILLS DIGEST NO. 68, 2017–18              30 January 2018

Imported Food Control Amendment (Country of Origin) Bill 2017

Paula Pyburne
Law and Bills Digest Section 

Date introduced: 19 October 2017

House: House of Representatives

Portfolio:  Agriculture and Water Resources

Commencement: 1 July 2018

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at January 2018.

Purpose of the Bill

The purpose of the Imported Food Control Amendment (Country of Origin) Bill 2017 (the Bill) is to amend the Imported Food Control Act 1992 to incorporate the Country of Origin Food Labelling Information Standard 2016 by reference.

Background

Over a period of almost 20 years, consumers and Members of Parliament expressed their concerns that food labels did not contain adequate information about the country of origin of the ingredients of foods.[1]

Until recently, the legislative underpinning of food labelling was contained in, first, the Competition and Consumer Act 2010 (CCA) which sets out a range of prohibitions with regards to making false or misleading representations about goods, including the following:

•       a general prohibition against misleading or deceptive conduct in trade or commerce[2]

•       a broad prohibition against making a false representation that goods, among other things, have a particular history (including their country of origin)[3] and

•       a prohibition against engaging in conduct which is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for their purpose or the quantity of any goods.[4]

The prohibitions against misleading and deceptive conduct in relation to goods, including their country of origin, were balanced by various ‘safe harbour’ provisions (also referred to as defences).[5]

Second, the Food Standards Australia New Zealand Act 1991 (FSANZ Act) establishes Food Standards Australia New Zealand (FSANZ) which is responsible for developing food standards and codes of practice covering the content and labelling of food to be applied in Australia and New Zealand.[6]

Changes to the law

In order to address the concerns regarding country of origin labelling, the Government engaged in a two-step process.

Step 1—amending the CCA

Step 1 of the process entailed updating the so called ‘safe harbours’ that are contained in the CCA. The Competition and Consumer Amendment (Country of Origin) Act 2017 was enacted and commenced on 23 February 2017. It updated Schedule 2 to the CCA which contains the Australian Consumer Law. In particular it amended the requirements to be met by a person making a specific country of origin representation about a good or service. Those requirements are:

•       if goods are represented as being grown in a particular country then each significant ingredient or significant component of the goods must have been grown in that country; and all, or virtually all, processes involved in the production or manufacture of the goods must have happened in that country[7]

•       if goods are represented as being the produce of a particular country then that country must be the country of origin of each significant ingredient or significant component of the goods; and all, or virtually all, processes involved in the production or manufacture of the goods must have happened in that country[8]

•       if goods are represented as having been made, manufactured or as originating from a particular country then the goods must have been last substantially transformed in that country; and the representation must not be a representation that the goods were grown or produced in that country[9]

•       if goods are labelled with a mark specified in an information standard relating to the country of origin labelling of the goods then the goods must satisfy all the requirements under the information standard relating to the use of the mark.[10]

Step 2—creating the information standard

Consistent with the last of those points, the Country of Origin Food Labelling Information Standard 2016 (the Information Standard) was made, coming into effect on 1 July 2016.[11] The Information Standard requires that certain food that is sold in Australia is to comply with mandatory country of origin labelling requirements.[12] Food that is grown, produced, made or packaged in Australia will be required to carry a standard mark.[13] The marks include an indication of the proportion of Australian ingredients by ingoing weight through text and a bar chart.

Business was given two years—to 1 July 2018—to transition to the new arrangements so that existing stock in trade can see out its shelf life.[14]

If the food was grown, produced or made in Australia exclusively from Australian ingredients, the information must be in the form of one of the standard marks.[15] These marks include the following features:

·          a logo to assist the consumer to easily identify that the food was grown, produced or made in Australia:

·          a full bar chart to indicate that the food’s ingredients are exclusively Australian:

·          a statement indicating that the food was grown, produced or made in Australia and that its ingredients are exclusively Australian.[16]

If the food was grown, produced or made in Australia and some of its ingredients are not Australian, the information must be in the form of one of the standard marks which include the following features below:[17]

·          a logo to assist the consumer to easily identify the food was grown, produced or made in Australia:

·          one of the following bar charts to provide a visual indication of the proportion, by ingoing weight, of the food’s Australian ingredients:

·          a Made in Australia statement, together with a statement that aligns with the bar chart and clearly states the minimum proportion, by ingoing weight, of the food’s Australian ingredients.[18]

Where food that is packaged in Australia includes food that was not grown, produced or made in Australia the Information Standard provides that the relevant label does not include the kangaroo logo.[19] In addition, it provides a range of examples of marks to be used which make clear to consumers the percentage of ingredients in the food, if any, that have been sourced from Australia.[20]

Application of the information standard

Generally speaking the country of origin labelling requirements apply to a sale of food in Australia if the sale is a retail sale or if the sale is not a retail sale, but the food is sold as suitable for retail sale without any further processing, packaging or labelling.[21]

Committee consideration

Senate Standing Committee for Selection of Bills

At its meeting of 19 October 2017, the Senate Standing Committee for Selection of Bills deferred consideration of the Bill to its next meeting.[22]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[23]

Policy position of non-government parties/independents

At the time of writing this Bills Digest neither non-government parties nor independents had commented on the Bill.

Position of major interest groups

At the time of writing this Bills Digest stakeholder groups had not commented on the Bill.

Financial implications

According to the Explanatory Memorandum, ‘the Bill will have no financial impact on the Australian Government Budget’.[24]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[25]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.[26]

Key issues and provisions

The Imported Food Control Act is intended to provide for the compliance of food imported into Australia with Australian food standards and of public health and safety requirements.[27] The Act applies to all food imported into Australia with the exception of:

•        food that is imported from New Zealand and is of a kind that is specified by the regulations to be food to which the Act does not apply[28]

•        prohibited food

•        food that is imported for private consumption

•        food that is ship’s stores or aircraft’s stores, within the meaning of section 130C of the Customs Act 1901 or

•        food that is imported as a trade sample.[29]

Section 8 of the Imported Food Control Act provides that a person must not import into Australia food to which the Act applies that the person knows does not meet applicable standards or poses a risk to human health. A contravention of this prohibition gives rise to an offence, the maximum penalty for which is imprisonment for 10 years. In addition, section 8A of the Imported Food Control Act provides that a person may only deal with food imported into Australia if the food meets applicable standards relating to information on labels for packages containing food. A failure to comply with that requirement gives rise to an offence, the maximum penalty for which is imprisonment for 10 years. The ‘applicable standard’ referred to in both of these provisions is defined as the ‘national standard in force in relation to that food’.[30] 

The Bill repeals and replaces the definition of national standard in the Imported Food Control Act so that, with effect from 1 July 2018, the national standard is:

•       a standard that is included in the Australia New Zealand Food Standards Code or

•       the Country of Origin Food Labelling Information Standard 2016 as in force from time to time.

Concluding comments

The battle to develop a country of origin food standard which accurately informs Australian consumers about where the food that they buy was grown, produced or made has been a long one. The development of the information standard and its gradual coming into effect is a welcome improvement to food labelling laws.

On 1 July 2018 the existing Australia New Zealand Food Standards Code—1.2.11—Information requirements—country of origin labelling will be repealed and the Information Standard will replace the requirements for country of origin labelling in the Australia New Zealand Food Standards Code.

The Bill ensures that the requirements for country of original labelling for food continue to be applied under the Imported Food Control Act and that authorised officers are able to continue to enforce country of origin labelling requirements for imported food at the border.

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Enquiry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

[1].              P Pyburne, Competition and Consumer Amendment (Country of Origin) Bill 2016, Bills digest, 9, 2016–17, Parliamentary Library, Canberra, 2016.

[2].              CCA, Schedule 2, clause 18.

[3].              CCA, Schedule 2, clause 29.

[4].              CCA, Schedule 2, clause 33.

[5].              CCA, Schedule 2, clause 255.

[6].              Food Standards Australia New Zealand (FSANZ), ‘Food Standards Code’, FSANZ website, 2015.

[7].              CCA, Schedule 2, subclause 255(1), table item 1.

[8].              CCA, Schedule 2, subclause 255(1), table item 2.

[9].              CCA, Schedule 2, subclause 255(1), table item 3.

[10].              CCA, Schedule 2, subclause 255(1), table item 4.

[11].              CCA, Schedule 2, clause 134 empowers the Minister to make an information standard.

[12].              Pyburne, Competition and Consumer Amendment (Country of Origin) Bill 2016, op. cit.

[13].              See Australian Government, ‘Australia's food labels are getting clearer’, Australian Government website, 2016.

[14].              Department of industry, Innovation and Science (DIIS), ‘Country of origin labelling’, DIIS website, 2016.

[15].              The marks are set out in Country of Origin Food Labelling Information Standard, section 18.

[16].              Country of Origin Food Labelling Information Standard, section 6.

[17].              Country of Origin Food Labelling Information Standard, section 19.

[18].              Country of Origin Food Labelling Information Standard, section 6.

[19].              Country of Origin Food Labelling Information Standard, section 6.

[20].              Country of Origin Food Labelling Information Standard, section 22.

[21].              Country of Origin Food Labelling Information Standard, subsection 14(1).

[22].              Senate Standing Committee for Selection of Bills, Report, 15, 2017, The Senate, Canberra, 7 December 2017.

[23].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 13, 2017, The Senate, Canberra, 15 November 2017, p. 33.

[24].              Explanatory Memorandum, Imported Food Control Amendment (Country of Origin) Bill 2017, p. 2.

[25].              The Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory Memorandum to the Bill.

[26].              Parliamentary Joint Committee on Human Rights, Twelfth report of the 45th Parliament, The Senate, Canberra, 28 November 2017, p. 96.

[27].              Imported Food Control Act, section 2A.

[28].              Section 3A of the Imported Food Control Regulations 1993 provides that the Imported Food Control Act does not apply to food that is imported from New Zealand and was made or produced in New Zealand and is not risk food.

[29].              Imported Food Control Act, subsection 7(1).

[30].              Imported Food Control Act, subsection 3(1).