In December 2014, Food Standards Australia New Zealand (FSANZ) released its approved final revision of the Australian New Zealand Food Standards Code (the Code).
The revised version is a result of two rounds of public consultation (conducted in May 2013 and July 2014) where FSANZ called for stakeholder and industry submissions on proposed amendments to the current Code.
On 30 January 2015, at a meeting of the Australia and New Zealand Ministerial Forum (the Ministerial Forum), the ministers responsible for food administration and regulation in each Australian State and Territory and New Zealand, accepted the new version of the Code.
FSANZ’s goal - Why the change?
In the Approval Report1 for the proposed new Code, FSANZ indicated that the primary reasons for the changes are:
- to improve legal efficacy and allow the Code to interact more effectively with State, Territory and Federal food legislation;
- to provide a clearer statement of the requirements of the Code; and
- to modernise the technical language of the Code to reflect current market or international regulation.2
This includes, for example, amending the Code to make it clearer that infringements of the Code will be enforced as criminal offences under the food legislation of each jurisdiction.
Impact on direct selling industry – What are the major changes?
For the most part, the new Code does not make significant changes to the current permissions, but rather, clarifies existing provisions and includes clearer definitions to guide user interpretation of the Code.
However, one principal change relates to amendments made in respect of permitted food additives, processing aids and nutritive substances added to various foods. Currently, all State, Territory and Federal legislation prohibits the addition of substances to food products unless they are permitted expressly by the Code.
The amendments will make this restriction clearer, by adding a new provision that a food for sale must not contain an ingredient or a substance that is listed in a supplementary table to be inserted into the revised Code, unless permitted expressly by the Code. This will bring the Code into line with food legislation. These prohibited substances include (among others) food additives, nutritive substances, processing aids, restricted plants or fungi, irradiated foods and kava.
These changes are relevant for any direct selling business involved in product development, food processing or production and sale of food products that may contain the prohibited substances or ingredients. Relevant direct selling businesses should consider checking the list of prohibited substances specified in the new Code to ensure that any food products sold and distributed in Australia comply with the Code.
While FSANZ has suggested that the new Code will not amend significantly any of the other current permissions in the Code, marketing restrictions may be added to the Code. For example, while the current Code sets out requirements in respect of the labelling and packaging of products, the approved variations to the Code include new subsections which emphasise that a food for sale must comply with all requirements of the Code relating to labelling or information provisions.3
As the labelling and packaging of a product is considered to constitute advertising material under the Code, these provisions will impact the way in which direct selling businesses are able to market and promote their businesses and products. A careful review of a direct selling business’ food products available for sale (including a review of the labelling and packaging of their food products) should be conducted to ensure that each product complies with the Code, as well as other general advertising requirements.
Next Steps – What happens now?
To become effective in Australia, the revised Code will need to be published in the Australian Food Standards Gazette and registered as a Federal Legislative Instrument in Australia. In New Zealand, the same gazette notice will need to be published as part of the New Zealand Gazette. (It is anticipated that this will occur on the same day as publication of the Food Standards Gazette.)
It is proposed that the commencement date for the revised Code is 1 March 2016. Contrary to previous revisions of the Food Standards Code, there will be no transition period.
Once the revised Code comes into force, all of the standards in Chapter 1 (the General Food Standards), which relates to a number of matters including nutrition and health claims, country of origin claims and labelling requirements and Chapter 2 (the Food Product Standards), which sets out specific standards for special purpose foods such as infant formula, formulated meal replacement and sports food products, of the current Code, will be replaced. However, they will become individual legislative instruments.
The current Chapters 3 (Food Safety Standards) and 4 (Primary Production Standards) will remain, and a dictionary of defined terms will be added to guide users in interpreting and understanding the Code.
Further, FSANZ indicates in its Approval Proposal that it anticipates the Code will be varied further before the changes come into effect in 2016. Any further amendments will be incorporated into the revised Code when it commences.4