A decision of the New South Wales Supreme Court in 2008 (the Nutricia case) prompted Food Standards Australia New Zealand (FSANZ) to conduct a legal audit of the current Food Standards Code (the Code). The audit culminated in the preparation of Proposal P1025 and a revised draft of the Code (Draft Code). While the Draft Code is primarily a structural revamp of the current Code, it will also affect how the Code is applied and enforced under state and territory food law. The Draft Code is also part of a broader plan to improve the accessibility of the Code. Businesses operating in the food industry should assess the effect of the Draft Code on their business and consider making a submission to FSANZ on the Draft Code. A call for submissions by FSANZ is expected to be made shortly.
WHY IS THE CODE BEING REVISED?
The decision in the Nutricia case questioned the legal efficacy of the Code and highlighted a number of inconsistencies in the enforcement and application of the Code. The Draft Code aims to address the issues identified in the Nutricia case and the legal audit by:
- clarifying the primary role of the food laws of the states, territories and New Zealand in enforcement and the relationship between the code and the food laws; and
- altering the structure of the Code to facilitate navigation and address problems of expression.
The Draft Code is intended to be a structural revamp of the current code with no substantial changes to provisions that impose requirements or obligations. However, the revision will affect how the Code is applied and enforced on a state and territory basis.
THE MAJOR CHANGES PRESENTED BY THE DRAFT CODE
1. Structure of the Code
The Draft Code consolidates all of the standards in the current Code into one document intended to be read together as a single instrument. The standards are arranged into Chapters, with Chapter 1 containing the standards that apply to all foods and Chapter 2 containing food specific standards. All schedules which were originally attached to individual standards have been collocated in Chapter 6. There has been a mixed response from industry to the structural changes, with some concern that there will be a need for significant investment by business in becoming familiar with the new structure of the Draft Code.
2. Interpretation of the Code
The tendency for state and territory courts to interpret food legislation under local interpretation laws has meant that the Code has not in the past been applied consistently between the states and territories. New Standard 1.1.1-4 is intended to achieve consistency of interpretation by providing that the Code is to be interpreted in accordance with national rules of interpretation in the Acts Interpretation Act 1901 (Cth).
3. Relationship between the Code and food legislation
The Draft Code provides that in applying the Code under local food legislation, a term used in the Draft Code that is also used in the local food law has the same meaning as in that local food law. The purpose of this new provision is to ensure that courts and law enforcement agencies are not faced with inconsistency between the Code, and the relevant state or territory law.
This change is in response to the court’s indication in the Nutricia case that the current Code does not provide a clear understanding of what constitutes “food” for the purposes of effective food safety regulation. The court declined to apply the definition of food that appears in the FSANZ Act or the state and territory food legislation and instead applied what it described as “a common understanding” about what constitutes food.
4. Relationship between permissions and general prohibitions
General prohibitions and permissions under the current Code have been reviewed to provide a single, complete statement of a prohibition and all permissions in the one provision, or proximate provisions under the Draft Code. For example, there is a general prohibition on the addition of food additives, processing aids and nutritive substances followed by specific permissions for their addition in the particular standards relating to those substances. This structural change has been generally welcomed by the food industry.
The Draft Code places all basic labelling requirements in the one place, in contrast with the current code in which labelling provisions are found throughout the Code and exceptions to those provisions sometimes in a separate part of the code. This change has also been generally welcomed by the food industry.
New definitions have been included to the Draft Code in response to the first round of submissions received by FSANZ. The Draft Code now includes definitions for “carbohydrate”, “used as a food additive”, “used as a processing aid” and “used as a nutritive substance” to name a few. While the additional definitions are intended to provide further clarity in the application of the Code, they are not intended to substantially alter the way in which the Code operates.
FSANZ has indicated that a formal second call for submissions on the Draft Code will be made shortly. Businesses operating in the Australian food industry should consider the effects the Draft Code will have on their business and consider making a submission in response to the Draft Code.