Revoking New Zealand s Food Regulatory Measures to be Covered by the Australia New Zealand Food Standards Code. A Discussion Document

Transcription

1 Revoking New Zealand s Food Regulatory Measures to be Covered by the Australia New Zealand Food Standards Code A Discussion Document

2 Published in April 2002 by the Ministry of Health PO Box 5013, Wellington, New Zealand ISBN (Booklet) ISBN (Internet) This document is available on the Ministry of Health s website:

3 Foreword The Australia New Zealand Food Standards Code is proposed to become the sole set of food standards for composition, labelling and other matters included within the scope of the Joint Food Standards System near the end of This will signify the end of the transition period when alternative food standards and regulations are available to the food industry. The food industry will no longer have the option of complying either with the New Zealand Food Regulations 1984 or with the Australian Food Standards Code. To give effect to New Zealand s obligations under the Joint Food Standards System, it will be necessary to revoke those food regulatory measures that fall within the system s scope. Similarly, Australia will be obliged to repeal the Australian Food Standards Code. The purpose of this discussion document is to: 1 consult on the proposed date when the Australia New Zealand Food Standards Code will take full effect, and when the transition period will conclude (proposed to be 20 December 2002) 2 invite comment on the food regulatory measures that are proposed for revocation, replacement, and retention. It is important to note that the Ministry of Health is not consulting on whether the Australia New Zealand Food Standards Code should replace existing food regulatory measures. This decision was formalised when the Treaty was signed on 5 December However, comment would be appreciated on the implications of the proposed actions. This discussion document is useful for the food industry, regulators, consultants in food labelling, food safety and food safety programmes, and government departments. To make a submission, see Appendix 5. Submissions close on 31 May Don Matheson Deputy Director-General Public Health Directorate

4 Contents Introduction 1 Purpose of discussion document 1 Background 2 Date for the Code to Take Full Effect 4 Adoption of the Code 4 Stock-in-trade provision 4 Proposed dates for the Code to take full effect and conclusion of the transition period 5 Revocation of Food Regulations and Standards 6 New Zealand Food Regulations New Zealand Food Standard 2001 (as amended) 10 Glossary 12 Appendix 1: The Treaty Agreement Between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards 14 Appendix 2: Food Regulatory measures falling Outside the Scope of the Joint Food Standards System 26 Appendix 3: Proposed Actions for Specific Regulations Contained in the Food Regulations Appendix 3: Draft New Zealand Milk and Milk Products Processing Standard Appendix 4: Related discussion documents 39 Appendix 5: How to Have Your Say 40

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7 Introduction The Australia New Zealand Food Standards Code (the Code) became law in New Zealand on 8 February This meant New Zealand s food industry could comply with the Code as an alternative to the Food Regulations 1984 or the Australian Food Standards Code. The Code was adopted as two volumes: Volume 1 consists of the Australian Food Standards Code (to be eventually repealed) and Volume 2 consists of the revised food standards, known as the Australia New Zealand Food Standards Code or the Joint Food Standards Code. In this document, unless otherwise specified, the Australian Food Standards Code relates to Volume 1 and the Australia New Zealand Food Standards Code (the Code) relates to Volume 2. Ultimately, the Code will become the sole set of food standards in New Zealand and Australia for composition, labelling and other matters included within the scope of the Joint Food Standards System. At the same time, current food regulatory measures that fall within the scope of the Joint Food Standards System will cease to have effect. When this happens the Code will be said to have taken full effect. New Zealand s food regulatory measures falling within the scope of the Joint Food Standards System are found in the Food Regulations 1984 and the New Zealand Food Standard 2001 (as amended). These measures will be revoked, replaced, or retained at the same time as the Code takes full effect. Purpose of discussion document The purpose of this discussion document is to: 1 consult on the proposed date when the Code will take full effect, and when the transition period will conclude (proposed to be 20 December 2002) 2 invite comment on the food regulatory measures that are proposed for revocation, replacement, and retention. 1 The New Zealand Food Standard 2001 is the legal instrument that incorporated the Australia New Zealand Food Standards Code into New Zealand law. Revoking New Zealand s Food Regulatory Measures 1

8 Background The move towards a new food regulatory framework, focusing on public health and safety and the provision of information to consumers while supporting industry innovation and providing greater flexibility for trade, began for New Zealand in The governments of New Zealand and Australia recognised that a common set of food standards would support their goal for Closer Economic Relations by promoting trade in foods. A co-operative approach was required to revise existing food regulatory measures and to develop new food standards to be shared by both countries. In December 1995, in the Agreement Between the Government of New Zealand and the Government of Australia Establishing a System for the Development of Joint Food Standards (the Treaty), the New Zealand and Australian governments agreed to establish the Australia New Zealand Food Standards System (the Joint Food Standards System). The Joint Food Standards System was brought into force in New Zealand in July The Treaty agreed to the administrative and policy frameworks for the Joint Food Standards System. It also agreed to the formation of the Australia New Zealand Food Standards Council (ANZFSC) and the Australia New Zealand Food Authority (ANZFA). A key outcome of the Joint Food Standards System has been the development of the Code. Under the Joint Food Standards System, ANZFA s initial role was to conduct a review of the Australian Food Standards Code and to develop joint food standards suitable for New Zealand and Australia. These new joint food standards were then recommended to ANZFSC for agreement. Standards agreed to by ANZFSC are then adopted into domestic legislation. (For full details of the Treaty see Appendix 1.) Transitional provisions for alternative food standards Before the Code takes full effect New Zealand s food industry has the option of complying with the New Zealand Food Regulations 1984, the Australian Food Standards Code, or the Code (but not a combination thereof). The Australian Food Standards Code The Treaty specifies several transitional provisions to apply during the period before the Code comes into full effect. Importantly, these provisions permitted the Australian Food Standards Code to be an alternative to the New Zealand Food Regulations The Australian Food Standards Code took effect in New Zealand on 1 July From this date New Zealand food industries could comply with the Australian Food Standards Code as an alternative to most of the provisions in the New Zealand Food Regulations 1984 (the Food Regulations 1984). 2 3 Refer to The Food Amendment Act The New Zealand Food Standard 1996 is the legal instrument that incorporated the Australia Food Standards Code into New Zealand law. 2 Revoking New Zealand s Food Regulatory Measures

9 The Australia New Zealand Food Standards Code The New Zealand and Australian governments agreed that the food industry would gain the option of complying with the Code from the date that it came into effect in their respective countries. New Zealand adopted the Code into domestic law, with it taking effect on 8 February From this date New Zealand s food industry could comply with the Code as an alternative to the Food Regulations 1984 or the Australian Food Standards Code. Matters falling outside the scope of the Joint Food Standards System Food regulatory matters falling outside the scope of the Joint Food Standards System remain in force. They operate irrespective of which set of food standards is followed and they will remain in force after the Code takes full effect. For a list of food regulatory measures outside the scope of the Joint Food Standards System see appendix 2. Transition period In New Zealand, the transition period is the interval between the commencement date of the transitional provisions for alternative food standards and regulations (1 July 1996) and the date that the Code takes full effect (and alternative food regulatory measures will be revoked). The New Zealand and Australian governments will decide jointly on the date for the Code to take full effect, which will also signify the conclusion of the transition period. (Note: Relevant ANZFA documents refer to a two-year transitional period. This relates to the interval between the adoption of the Code and the Code taking full effect, proposed to occur two years from adoption.) 4 The New Zealand Food Standard 2001 is the legal instrument that incorporated the Australia New Zealand Food Standards Code into New Zealand law. Revoking New Zealand s Food Regulatory Measures 3

10 Date for the Code to Take Full Effect When ANZFSC agreed to the Code on 24 November 2000, it also agreed (in principle) that the Code should take full effect two years from adoption. The Ministry of Health and ANZFA have signalled, on numerous occasions, that the transitional provisions were likely to remain for two years from the date that the Code was adopted and became an option for compliance. Both organisations have indicated (to consumers, the food industry, regulators, and government departments) that this date is likely to be 20 December This date is exactly two years from the date when the Australian food industry gained the option of complying with the Code, but eight weeks short of two years for the New Zealand food industry (the Code was enacted in New Zealand on 8 February 2001). Given the holiday period during December and January, securing an additional eight extra weeks by concluding the transition period on 8 February 2002 is not seen as advantageous. Adoption of the Code On 20 December 2000 the Code was published in both the New Zealand Gazette and Australian Government Notices Gazette. While in Australia the Code was adopted immediately following notification in the Government Notices Gazette on 20 December 2000, in New Zealand the Code was not adopted until 8 February This did not happen on 20 December 2000, when ANZFA published the Code, due to an unavoidable administrative process in New Zealand. The New Zealand Food Standard 2001 that legally recognises the Code was published in the New Zealand Gazette on 11 January Under the Food Act 1981, food standards issued under this Act are adopted on the 28th day following notification in the New Zealand Gazette. 5 Consequently, New Zealand s food industry gained the option of complying with the Code when it took effect on 8 February 2001 (in addition to the New Zealand Regulations 1984 and the Australian Food Standards Code). Stock-in-trade provision A stock-in-trade provision allows for the continued lawful sale of food manufactured to a standard after that standard changes or is revoked for a specified period of time. ANZFA has previously proposed a 12-month stock-in-trade provision, following the Code taking full effect (P248). In ANZFA s Proposal P252 (Transitional arrangements for repeal of Volume 1 of the Food Standards Code) ANZFA states that: given the interconnectedness of P248 and P252, the Authority is calling for more robust empirical data concerning the practical implications of the implementation of the Code. 5 Food Act 1981, section 11G, clause (3). 4 Revoking New Zealand s Food Regulatory Measures

11 Information provided to ANZFA is publicly available. The Ministry of Health will be using the information received by ANZFA on stock-in-trade to assist in forming its policy advice to the Minister of Health. Detailed and specific information including volumes of food affected, types of food products, costs and steps taken to avoid the situation arising is most useful to the Ministry of Health. The Ministry of Health urges any reader or organisation interested in providing information to ANZFA to do so. Proposed dates for the Code to take full effect and conclusion of the transition period The Ministry of Health s preferred date for when the Code will take full effect, and thereby conclude the transition period, is 20 December This is the same date proposed for the Code to take full effect in Australia. Alternative dates for when the Code could take full effect, and the conclusion of the transition period, will also be considered. Process for concluding the transition period The conclusion of the transition period in New Zealand will be formalised by an Order in Council. This official notice is passed by the Governor-General at Executive Council, after it has been approved by Cabinet. Revoking New Zealand s Food Regulatory Measures 5

12 Revocation of Food Regulations and Standards New Zealand s food regulatory measures falling within the scope of the Joint Food Standards System are found in the Food Regulations 1984, and the New Zealand Food Standard 2001 (as amended). 6 These measures will be revoked, replaced or retained at the same time as the Code takes full effect and the transition period ends. New Zealand Food Regulations 1984 The Ministry of Health has reviewed the Food Regulations 1984 and determined how they are to be dealt with when the Code takes full effect. Each regulation has been categorised with one of the following: revoke; replace; or retain. The proposed actions for all regulations are summarised in Appendix 3. Summarised below is an explanation of the proposed action for food regulations where additional clarification might be useful. Regulations proposed for revocation Regulations proposed for revocation are either covered by the Code or, as part of ANZFA s review were not considered necessary (see Table 1, Appendix 3). Regulation 4: General requirements for labelling of food, sub-regulation 4(1)(c) net weight The Weights and Measures Regulations 1987 will be amended to include the requirement for quantity marking to appear on packaged foods, which is currently included in Regulation 4(1)(c). This amendment is planned for November 2002 but if this is not achieved a transitional measure will be introduced. Therefore, it is proposed that Regulation 4 is revoked in its entirety. Regulations 13 15: Nutrient claims ANZFA is currently considering the development of standards regulating the criteria for making nutrient claims. Until this review is finalised, nutrient claims will be dealt with under the Food Act 1981 (section 10, Misleading Labelling and Packaging) and the Fair Trading Act As a guide for complying with the Food Act and Fair Trading Act, the expectation is that industry would comply with the (former) provisions for nutrient claims in the New Zealand Food Regulations or with the Australian Code of Practice on Nutrient Claims. The new requirement in the Code for Nutrition Information Panels will also assist enforcement agencies and consumers to monitor nutrient claims. 6 Refer to the New Zealand Food Standard 2001, clause 7. 6 Revoking New Zealand s Food Regulatory Measures

13 Regulation 20A: Addition of vitamins and minerals The Code does not cover the requirement to add fluoride to drinking water (and thus gives no permission for fluoride to appear in foods which use drinking water is an ingredient). The Ministry of Health is liasing with ANZFA to include a provision in the Code for the use of fluoridated water in New Zealand foods. The aim is to ensure appropriate food standards for New Zealand in relation to this issue before revoking the regulation. Regulation 86: Labelling of fish and fish products Naming provisions are not included as standards in the Code. However, the editorial note to clause 1 of standard 2.2.3, Fish and Fish Products, lists New Zealand publications that provide guidance on the naming of fish. Since standard was developed, further work in this area has been undertaken and the editorial note in the standard needs to be amended to refer to clause 32 of the Animal Products (Specifications for Products Intended for Human Consumption) Notice The misleading and false labelling provisions in the Fair Trading Act 1986 will continue to cover the misuse of fish names. Regulation 113: Cheese Sub-regulations (9) and (11) contain country of origin labelling provisions. Internationally there is a move away from mandating cheese types by origin (such as in Codex standards). In any case, misleading information (by omission, such as not indicating the origin of gouda when this is normally associated with Dutch cheese or by the addition of incorrect information) would be subject to the provisions of the Fair Trading Act The other provisions (sub-regulations (1) to (8) and (10)) will be included in the proposed New Zealand Milk and Milk Products Processing Standard 2002 (see Appendix 3) or are within the scope of the Treaty and are covered by the Code. Regulation 113 can therefore be revoked in its entirety. Regulation 225: Labelling of wine and wine products Sub-regulations (1) and (2) of regulation 225 are country of origin labelling provisions. Until ANZFA has finalised a country of origin standard, these provisions will be covered in the new section to the Code proposed by ANZFA Part 1.1A Transitional Standards. Regulation 233: General standard for spirits Sub-regulation (6) of Regulation 233 is a country of origin labelling requirement that is covered by the Code Standard Spirits. Revoking New Zealand s Food Regulatory Measures 7

14 Regulation 237: Special purpose foods Special purpose foods are covered in the Code under specific provisions. As the Code does not allow for general special purpose foods, revoking Regulation 237 may cause some food products to become unlawful. The New Zealand food industry needs to consider whether the general provisions for special purpose foods are required in the future. Any food business or organisation that currently relies on the Regulation 237 for the sale of general special purpose foods should consider whether its revocation would prevent the legal sale of foods. If foods will be prevented from being sold a submission should be made to the Ministry of Health and ANZFA. If necessary, a transitional standard in the Code will be introduced. Regulation 239A: Amino acid modified foods ANZFA is currently considering the development of a standard to regulate medical foods (refer to Proposal 242). The standard on medical foods will include the regulation of amino acid modified foods. ANZFA has proposed the inclusion of a transitional standard for amino acid modified foods in the Code until the regulation of medical foods is resolved (refer to Proposal P252 for the draft transitional standard). Regulation 242: Infant formula and follow-on formula ANZFA is currently considering in Proposal P252 the incorporation of a transitional standard for infant formula and follow-on formula until a joint standard for New Zealand and Australia is finalised. Regulation 257: Incidental constituents It is proposed to amend the New Zealand (Maximum Residue Limits of Agricultural Compounds) Mandatory Food Standard 1999 to include diphenylamine. Permission for the use of diphenylamine is currently provided in Regulation 257. Other compounds found in this standard either are no longer used or are covered by the New Zealand (Maximum Residue Limits of Agricultural Compounds) Mandatory Food Standard 1999 and/or the Code Standards Food Additives, Processing Aids and Contaminants and Natural Toxicants. Regulation 272A: Packaging of desiccants and oxygen absorbers The standard equivalent to Regulation 272A in the Code is standard Provisions in standard are also applicable. 8 Revoking New Zealand s Food Regulatory Measures

15 Regulations proposed for replacement Regulations proposed for replacement contain provisions that fall both within and outside the scope of the Joint Food Standards System (see Table 2, Appendix 2). In this situation the regulation will be revoked in its entirety and those provisions falling outside the scope of the Joint Food Standards System will be replaced with a new New Zealand food regulatory measure. An explanation on the proposed action for Regulations on milk and milk products is given below. Regulations : Milk and milk products Regulations contain provisions covering processing requirements that fall outside the scope of the Joint Food Standards System (as well as some provisions included within the Joint Food Standards System). It is proposed to revoke all milk and milk product regulations (Regulations ) and to include the processing requirements in the proposed New Zealand Milk and Milk Products Processing Standard This proposed standard makes minor amendments to the current processing requirements contained in the Food Regulations 1984 (see Appendix 3). It was decided not to retain these regulations in their totality but to redraft them to reflect current processing needs and practices. This review and redrafting process has not been undertaken for any of the other regulations proposed for retention. As a result, rather than include these redrafted requirements in regulations, a food standard is proposed since this delivers the added advantages over regulations of flexibility and ease of update to meet future needs. Standards to of the Code refer to the Food Regulations 1984 for New Zealand s processing requirements for milk and milk products. Introducing a New Zealand standard for the processing requirements of milk and milk products will therefore require a consequential amendment to the relevant editorial notes in the Code. Regulations proposed for retention Regulations proposed for retention deal either directly or indirectly with matters falling outside the scope of the Joint Food Standards System and are required to ensure continued regulation (see Table 3, Appendix 3). Regulations 63 and 64: Muttonbirds It is envisaged that the processing of muttonbirds will come under the Animal Products Act 1999, as this is New Zealand s primary means of regulating the production of animal products. The Ministry proposes to retain Regulations 63 and 64 to allow them to be reviewed concurrently with proposals for coverage of muttonbird processing under the Animal Products Act The collection and processing of muttonbirds in New Zealand has a long cultural history and Mäori have sole harvesting rights. To the extent that the provisions of Regulations 63 and 64 cover aspects of that activity, they have cultural significance in New Zealand. Revoking New Zealand s Food Regulatory Measures 9

16 Because of the cultural importance of muttonbirds, coverage by the Animal Products Act 1999 will require a significant amount of work and this, together with the review of Regulations 63 and 64, is not expected to be completed until 1 July Regulation 64(1) refers to Regulation 4(1)(c), which is proposed for revocation. If Regulations 63 and 64 are retained, an amendment to Regulation 64(1) will be required to include a reference to the relevant section in the Code (Standard 1.2.2). Regulation 78: Fish It is proposed to retain sub-regulations (3) (8) of Regulation 78 because they deal with processing requirements that are outside the scope of the Joint Food Standards System. This will be an interim arrangement until these provisions are fully covered by the Animal Products Act 1999, likely to be 1 July Regulation 78(1), (2) and (9) fall within the scope of the Joint Food Standards System, so are proposed for revocation. Regulation : Public health and safety These regulations contain public health and safety provisions that are not directly related to a food or a food container and are considered outside the scope of the Joint Food Standards System. New Zealand will continue to be responsible for such issues independently of the Code taking full effect. (Note: Regulation 267(1) and (2) fall within the scope of the Joint Food Standards System, so are proposed for revocation.) Revocation of the Food Regulations 1984 It is proposed to revoke the Food Regulations 1984 in its entirety, as most of the Regulations will be replaced with standards contained in the Code. The regulations to be retained will be accommodated in a consolidated set of regulations with a new title, such as the Food (Safety) Regulations At this stage, the specific regulations proposed for retention will remain largely unchanged. In the future, these remaining regulations will be reviewed to determine whether any improvements are necessary and to identify the most appropriate place to accommodate them. New Zealand Food Standard 2001 (as amended) The New Zealand Food Standard 2001 (as amended) has two functions. 1 To adopt the Code into New Zealand legislation as an alternative to the New Zealand Food Regulations 1984, (this includes volume 1 the Australian Food Standards Code). 2 To issue a Mandatory Food Standard to declare specific food regulatory measures as mandatory. The purpose is to make compliance with these food regulatory measures compulsory, irrespective of whether the food industry has opted to comply with the Food Regulations 1984, the Australian Food Standards Code, or the Code. 10 Revoking New Zealand s Food Regulatory Measures

17 The Mandatory Food Standard The Mandatory Food Standard is contained in the New Zealand Food Standard 2001 (clause 7). Currently, it is mandatory to comply with food regulatory measures relating to: (a) foods produced using gene technology (b) folate health claims (c) labelling of royal jelly (d) labelling of bee pollen (e) labelling of propolis. The Mandatory Food Standard will become redundant for foods when the Code takes full effect. Requirements (a) and (b) above relate to standards that are included in the Code. Provisions (c), (d) and (e), in relation to foods, will be covered in the new section to the Code proposed by ANZFA Part 1.1A Transitional Standards. Revocation of the New Zealand Food Standard 2001 The New Zealand Food Standard 2001 (including the provisions in the Mandatory Food Standard) will be revoked in its entirety. This standard will be replaced with a New Zealand food standard that adopts the Code, once it is amended to delete Volume 1 (the Australian Food Standards Code). (Note: the labelling provisions for dietary supplements that contain royal jelly, bee pollen and propolis will continue.) Revoking New Zealand s Food Regulatory Measures 11

18 Glossary Australia New Zealand Food Authority (ANZFA) Australian Food Standards Code Australia New Zealand Food Standards Code Australia New Zealand Food Standards Council (ANZFSC) Australia New Zealand Food Standards System Food industry Food regulatory measure Joint Food Standards System An independent expert body, agreed to under the Treaty and the Australia New Zealand Food Authority Act 1991 (an Act of the Australian Parliament). 7 ANZFA is responsible for developing and reviewing food standards for both New Zealand and Australia. The Australian equivalent to the Food Regulations Now referred to as volume 1 of the Australia New Zealand Food Standards Code. The common set of food standards for New Zealand and Australia that will eventually replace the bulk of the New Zealand Food Regulations 1984 and the Australian Food Standards Code. Also known as: the Joint Australia New Zealand Food Standards Code, the Joint Food Standards Code, and the Food Standards Code. The Australia New Zealand Food Standards Code currently consists of Volume 1 (known as the Australian Food Standards Code) and Volume 2 (known as the Joint Food Standards Code). In this document, unless otherwise specified, the Australian Food Standards Code relates to Volume 1 and the Australia New Zealand Food Standards Code relates to Volume 2. A council of Health Ministers that forms the final decisionmaking body about food standards. ANZFSC currently consists of the New Zealand Minister of Health and the nine Health Ministers from the Commonwealth and each State and Territory in Australia. The Joint Food Standards System agreed to under the Treaty and set out in the Australia New Zealand Food Authority Act 1991 (an Act of the Commonwealth Parliament in Australia). Any food manufacturer, retailer, importer or supplier, and any person storing food, transporting food or preparing food for sale. A standard, regulation, clause, provision or requirement in relation to food. The Australia New Zealand Food Standards System agreed to under the Treaty and the Australia New Zealand Food Authority Act 1991 (an Act of the Commonwealth Parliament in Australia). 7 The National Food Authority (established under the then National Food Authority Act 1991, Australia) became the Australia New Zealand Food Authority under the Treaty and the Australia New Zealand Food Authority Act 1991 (previously the National Food Authority Act 1991). 12 Revoking New Zealand s Food Regulatory Measures

19 Transition period Transition standard Transitional provisions The Treaty The interval between the commencement of the transitional provisions and the date when the Australia New Zealand Food Standards Code takes full effect and redundant food regulatory measures are also revoked. In New Zealand the transition period began on 1 July 1996, when the transitional provisions were given legal effect. 8 The New Zealand and Australian governments will decide jointly on the date for the conclusion of the transition period. In New Zealand the conclusion of the transition period will be formalised when the Order in Council signed by the Governor-General takes effect (Food Act 1981, section 11R). Temporary standards that apply until a standard within the Australia New Zealand Food Standards Code is finalised. Currently they are found in Part 1.1, standard Transitional and Temporary Standards, of the Australia New Zealand Food Standards Code. Once the transition period is brought to a close, ANZFA is proposing a new set of transitional standards to apply until various matters under review are resolved. Transitional arrangements for alternative food standards and regulations, agreed in the Treaty and incorporated into domestic legislation in New Zealand. The transitional provisions will apply during the transitional period (see Appendix 1, Annex D). The Agreement Between the Government of New Zealand and the Government of Australia Establishing a System for the Development of Joint Food Standards, signed on 5 December The Food Amendment Act 1996 and the New Zealand Food Standard 1996 are the legal mechanisms to allow for the Joint Food Standards System. They both came into effect on 1 July Revoking New Zealand s Food Regulatory Measures 13

20 Appendix 1: The Treaty Agreement Between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards 9 Australia and New Zealand (hereinafter called the Member States ): Conscious of their longstanding friendship and close historic, political, economic and geographic relationship; Recognising the development of a closer economic relationship and the strengthening of their ties since the commencement of the Australia New Zealand Closer Economic Relations Trade Agreement done at Canberra on 28 March 1983; Aware that this relationship will be significantly strengthened through the development of a system for establishing joint food standards in Australia and New Zealand; Acknowledging their commitment to securing trade liberalisation and an outward looking approach to trade; Conscious of the need to avoid the development of unnecessary barriers to trade and of their obligations in this regard under the Agreement Establishing the World Trade Organization done at Marrakesh on 15 April 1994; Affirming their commitment to an assessment process for food standards characterised by transparency, timeliness and accountability, including a commitment to consultation and public involvement; Desiring to establish a framework for the harmonisation of food standards and the elaboration of a joint Australia New Zealand Food Standards Code; Acknowledging the existence and operation of the 1991 Agreement between the Commonwealth of Australia and the States and Northern Territory of Australia and the Australian Capital Territory in relation to the adoption of uniform food standards; Have agreed as follows: Article 1: Definitions For the purposes of this Agreement, unless the context otherwise requires: (a) (b) the term Advisory Committee means the Australia New Zealand Food Authority Advisory Committee established by legislation in accordance with Annex B of this Agreement; the term Authority means the Australia New Zealand Food Authority established by legislation in accordance with Annex B of this Agreement; 9 Changes to the process for developing and maintaining joint food standards in Australia and New Zealand are being made. These changes require amendments to the Treaty, which are currently being considered by the New Zealand and Australian Parliaments. The Treaty amendment process is expected to be completed by mid Revoking New Zealand s Food Regulatory Measures

21 (c) (d) (e) (f) (g) the term Council means the Australia New Zealand Food Standards Council referred to in Annex B of this Agreement; the term Australia New Zealand Food Standards Code means the joint food standards Code to be established pursuant to this Agreement; the term Australia New Zealand Food Standards System means the joint system for determining food standards established pursuant to this Agreement; the terms New Zealand Food Standard(s) and Australian Food Standard(s) mean any standard(s) or requirement(s) under New Zealand or Australian law respectively relating to matters which fall within the scope of the Australia New Zealand Food Standards System; and the term 1991 Agreement means the 1991 Agreement between the Commonwealth of Australia and the States and Northern Territory of Australia and the Australian Capital Territory in relation to the adoption of uniform food standards. Article 2: Objectives The objectives of the Member States in concluding this Agreement are: (a) (b) (c) (d) to reduce unnecessary barriers to trade; to adopt a joint system for the development and promulgation of food standards; to provide for the timely development and adoption of food standards appropriate for both Member States; and to facilitate the sharing of information between the Member States on matters relating to food. Article 3: Scope 1 This Agreement shall apply with respect to the development of the Australia New Zealand Food Standards System. 2 Subject to paragraph (3) of this Article, the Member States agree that the Australia New Zealand Food Standards System will include the development of the Australia New Zealand Food Standards Code which will contain standards that relate to any of the following: (a) (b) (c) (d) (e) (f) (g) (h) (i) the safety of food, including its microbiological status; the composition of food, including the maximum or minimum amounts, where appropriate, of contaminants, residues, additives or other substances that may be present in food; the method of sampling and testing the food to determine its composition and safety; the production, manufacture or preparation of food; materials, containers, appliances or utensils used in relation to food; the packaging, storage, carrying, delivery, or handling of food; any information about food including labelling, promotion and advertising; such other matters affecting food as may affect the health of persons consuming food; and the interpretation of other standards. Revoking New Zealand s Food Regulatory Measures 15

22 3 Unless otherwise agreed in accordance with paragraph (4) of this Article, the scope of the Australia New Zealand Food Standards System does not include: (a) (b) (c) the specification of maximum residue limits for agricultural and veterinary chemicals in food; the specification of food hygiene provisions including requirements for food safety programmes or other means of demonstrating the safety and compliance of foods; or export requirements relating to third country trade. However, the Member States agree that all food standards contained in the Australian Food Standards Code as at the date of signature of this Agreement, other than Standard A14 (Residues in Food) to the extent that it relates to matters contained in subparagraph (a) of this paragraph, are included within the scope of the Australia New Zealand Food Standards System. 4 The Member States acknowledge that the scope of the Australia New Zealand Food Standards System may be extended and developed by mutual agreement following consultations within the Council. 5 The provisions of this Agreement shall in no way affect the co-operation between the Member States and their agencies on health and food-related issues falling outside the Australia New Zealand Food Standards System established by this Agreement. Article 4: Establishment of the Australia New Zealand Food Standards System 1 The Annexes to this Agreement constitute integral parts of this Agreement. Principles 2 The Member States agree that food standards developed under the Australia New Zealand Food Standards System shall be consistent with the Principles for the Establishment of Australia New Zealand Food Standards attached as Annex A of this Agreement. Organisation of the Australia New Zealand Food Standards System 3 The Member States agree that the procedures applicable to the determination and implementation of food standards shall be in accordance with the arrangements set out in Annex B of this Agreement. Principles and procedures to be followed where different conditions in Australia or New Zealand indicate that variations to standards are required 4 The Member States agree that the obligation of New Zealand to implement food standards is subject to the principles and procedures attached as Annex C of this Agreement. Transitional provisions: 5 Prior to the adoption of the Australia New Zealand Food Standards Code transitional arrangements shall apply as set out in Annex D of this Agreement. 16 Revoking New Zealand s Food Regulatory Measures

23 Article 5: Adoption of Food Standards 1 Subject to Annexes C and D of this Agreement, each Member State shall take such legislative or other steps as are necessary to adopt or incorporate, by reference and without amendments, as food standards in force under the law of that Member State, the food standards that are from time to time: (a) (b) (c) prepared and recommended by the Authority to the Council; and adopted with or without amendment by the Council; and published in the Commonwealth of Australia Gazette and the New Zealand Gazette; such food standards to take effect on the same date in both Member States as specified in the Commonwealth of Australia Gazette and the New Zealand Gazette. 2 Subject to Annex C of this Agreement, neither Member State shall, subsequent to the steps taken pursuant to paragraph (1) of this Article, amend the food standards referred to in that paragraph other than in accordance with this Agreement. 3 Subject to Annex C of this Agreement, neither Member State shall by legislation or by other means establish or amend a food standard falling within the scope of this Agreement other than in accordance with this Agreement. 4 To the extent possible, Australia will implement its obligations under this Article in accordance with the provisions of the 1991 Agreement. Article 6: Funding, Performance, and Accountability 1 The Australia New Zealand Food Standards System will be funded jointly by Australia and New Zealand based on a pro rata to population share of the total agreed cost as determined in writing pursuant to paragraph (2) of this Article. 2 By the end of February of any year in which this Agreement remains in force, the New Zealand Minister of Health and the Chairperson of the Authority shall consult and agree in writing to the elaboration of funding and performance arrangements under the Australia New Zealand Food Standards System relating to: (a) (b) (c) (d) the services to be provided by the Authority to New Zealand; the performance and accountability requirements pertaining to those services; the total agreed cost; and the payments to be made by New Zealand for the services provided by the Authority. Article 7: Relationship of this Agreement to the proposed Trans-Tasman Mutual Recognition Arrangement Member States acknowledge their intention that the provisions of the proposed Trans-Tasman Mutual Recognition Arrangement should apply to food, subject to any necessary exemptions determined in accordance with the procedures laid down in that Arrangement. Revoking New Zealand s Food Regulatory Measures 17

24 Article 8: Consultations 1 The Member States shall, at the written request of either, promptly enter into consultations with a view to seeking an early, equitable and mutually satisfactory solution, if the Member State which requested the consultations considers that: (a) (b) an obligation under this Agreement has not been, is not being, or may not be fulfilled; or the achievement of any of the objectives of this Agreement is being or may be frustrated. 2 In addition to any consultations that might be held pursuant to paragraph (1) of this Article, Member States shall consult at the written request of either in relation to any provisions in respect of which paragraph (2) of Annex C of this Agreement applies. Article 9: Review 1 Member States agree to conduct, and conclude, no later than three years after the date of entry into force of this Agreement, a review of the effectiveness of the Australia New Zealand Food Standards System with a view to agreeing to and implementing any necessary improvements. 2 In participating in the review, Australia, in recognition of the operation of the 1991 Agreement, shall ensure the effective input and representation of the views of the parties to the 1991 Agreement. Article 10: Amendment If either of the Member States considers that an amendment to this Agreement would be desirable, it may request consultations with the other Member State to this end. Any agreed amendments shall be comprised in an exchange of letters between the Member States which shall include a reference to the date on which the amendments shall come into force. Article 11: Participation of Third Parties 1 The Member States may agree to the association of any other State with this Agreement. 2 The terms of such association shall be negotiated between the Member States and the other State. Article 12: Termination 1 Either Member State may at any time give notice in writing through diplomatic channels to the other Member State of its decision to terminate this Agreement. 2 The Agreement shall terminate 12 months after the date of receipt of notice by the other Member State. Article 13: Entry into Force The Member States shall notify each other through diplomatic channels of the completion of their respective statutory and constitutional requirements for the entry into force of this Agreement. This Agreement shall enter into force on the date of the later notification or such later date as may be agreed between the Member States. 18 Revoking New Zealand s Food Regulatory Measures

25 IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments, have signed this Agreement. DONE in duplicate at Wellington this 5th day of December, One thousand nine hundred and ninety-five. HON ANDREW THEOPHANOUS For the Government of Australia HON KATHERINE O REGAN For the Government of New Zealand Revoking New Zealand s Food Regulatory Measures 19

26 Annex A: Principles for the establishment of Australia New Zealand Food Standards 1 Food standards shall be developed under the Australia New Zealand Food Standards System in accordance with the following principles: (a) (b) protection of public health and safety, including: i. provision of adequate information relating to food to enable consumers to make informed choices and to prevent fraud and deception; and facilitation of access to markets, including: i. promotion of fair trading; ii. promotion of trade and commerce; and iii. promotion of consistency between the domestic food standards of the Member States and international food standards. 2 In addition, food standards developed under the Australia New Zealand Food Standards System shall be: (a) (b) (c) consistent with the obligations of both Member States under the Agreement Establishing the World Trade Organization done at Marrakesh on 15 April 1994; consistent with domestic laws and regulations of both Member States, other than existing food standards that are intended to be superseded by food standards developed under the Australia New Zealand Food Standards System; and in accordance with the following principles and practices: i. based on the best available scientific data, including systematic application of public health risk analysis and risk management principles to the development of food standards; ii. of a generic nature where possible; and iii. subject to the principles set out in Parts B, C and D of the Principles and Guidelines for National Standard Setting and Regulatory Action by Ministerial Councils and Standard Setting Bodies endorsed by the Council of Australian Governments in April Revoking New Zealand s Food Regulatory Measures

27 Annex B: Organisation of the Australia New Zealand Food Standards System I Essential elements 1 The Australia New Zealand Food Standards System will be based on an extension of the existing Australian system to include New Zealand. 2 The Australia New Zealand Food Standards System will include, in particular, the development of the Australia New Zealand Food Standards Code. 3 Consultation arrangements will permit equal participation in the Australia New Zealand Food Standards System by Australian and New Zealand industry and other interested parties. 4 The Australia New Zealand Food Standards System shall identify and evaluate any differing health and safety, trade, environmental or cultural factors in the development of appropriate food standards. II Definitions and Membership of Bodies 1 (a) The Council referred to in the 1991 Agreement and known as the National Food Standards Council shall become the Australia New Zealand Food Standards Council. (b) A Minister appointed by the Government of New Zealand shall be a member of the Australia New Zealand Food Standards Council with a single vote. 2 (a) The National Food Authority established under the National Food Authority Act 1991 shall become the Australia New Zealand Food Authority. (b) (c) Members of the Australia New Zealand Food Authority shall be appointed by the Australian Minister after consultation with the Council. Two members of the Australia New Zealand Food Authority shall be appointed by the Australian Minister on the nomination of the New Zealand member of the Australia New Zealand Food Standards Council and shall have expertise in one or more of the following areas: 1 public health; 2 food science; 3 human nutrition; 4 food production or retailing; 5 public administration; 6 consumer rights. 3 (a) The National Food Authority Advisory Committee established under the National Food Authority Act 1991 shall become the Australia New Zealand Food Authority Advisory Committee. (b) New Zealand members of the Australia New Zealand Food Authority Advisory Committee shall be appointed under arrangements agreed with the New Zealand Minister of Health. Revoking New Zealand s Food Regulatory Measures 21

28 III Operations of the Authority In addition to its existing operations in Australia the Authority shall establish an office in New Zealand and undertake activities in New Zealand to permit full participation by New Zealand industry, government and community in the processes of development and adoption of food standards. IV Implementation under Australian and New Zealand Domestic Law The Member States shall implement the obligations expressed in this Agreement under appropriate domestic legislation. 22 Revoking New Zealand s Food Regulatory Measures

29 Annex C: Principles and Procedures to be followed where different conditions in Australia or New Zealand indicate variations to standards are required Identification of the Need for Separate Standards 1 Where the analysis or consultation undertaken by the Authority in the preparation of a food standard indicates that for exceptional health and safety or environmental reasons separate food standards will be required for New Zealand and Australia, the Authority shall prepare recommendations relating to each Member State for consideration by the Council. New Zealand Variation 2 Where a food standard is adopted by a majority of the Council and the New Zealand member of the Council considers that the food standard would be inappropriate for New Zealand on the grounds of exceptional health, safety, third country trade, environmental, or cultural factors, the representative of New Zealand on the Council may inform the Chair of the Council that New Zealand needs to vary from the agreed food standard. A New Zealand variation shall not create a barrier to trade unless exceptional health, safety and environmental concerns exist. 3 Any such notification of variance shall be accompanied by an explanatory note containing the reasons and justification for the variance. New Zealand may request the Authority to prepare a standard appropriate for New Zealand, subject to agreement being reached on any necessary modifications to the funding and performance arrangements determined in accordance with Article 6 of this Agreement. 4 In the event of the New Zealand member informing the Council that New Zealand intends to vary from a food standard adopted by the majority of the Council, then the food standard adopted by the majority of the Council will be regarded as applicable only in Australia, and New Zealand will not be required to take legislative steps to adopt or incorporate it as otherwise required under paragraph (1) of Article 5 of this Agreement. In such event the provisions of paragraph (2) of Article 8 of this Agreement shall apply. Where New Zealand has varied from a food standard under this Annex, without such variation being adopted by the Council, the reference to the food standard in the Australia New Zealand Food Standards Code shall include an annotation to indicate that such a variation has been made. Temporary Food Standards 5 Where any member of the Council determines that an issue affecting public health and safety or environmental conditions requires a new food standard or amendment of a food standard adopted pursuant to paragraph (1) of Article 5 of this Agreement and that the circumstances affecting public health and safety or environmental conditions would not allow time for the steps pursuant to paragraph (1) of Article 5 of this Agreement to be taken, that Council member may adopt, under its food laws, a new food standard or amend a food standard, provided that: (a) (b) the Council member notifies the Council of its intention to adopt the new or amended food standard; the new or amended food standard applies for a period of no longer than six months from the date of its adoption; Revoking New Zealand s Food Regulatory Measures 23