PROPOSAL P246 LABELLING OMNIBUS AMENDMENTS TO THE AUSTRALIA NEW ZEALAND FOOD STANDARDS CODE FINAL ASSESSMENT REPORT (INQUIRY - SECTION 24)

Transcription

1 10/02 26 June 2002 PROPOSAL P246 LABELLING OMNIBUS AMENDMENTS TO THE AUSTRALIA NEW ZEALAND FOOD STANDARDS CODE FINAL ASSESSMENT REPORT (INQUIRY - SECTION 24)

2 THE AUSTRALIA NEW ZEALAND FOOD AUTHORITY The Australia New Zealand Food Authority s (ANZFA) is a partnership between the Commonwealth Government, Australian State and Territory governments and the New Zealand Government. ANZFA is a bi-national, statutory body whose role, in association with others, is to protect the health and safety of people in Australia and New Zealand through the maintenance of a safe food supply. ANZFA seeks to achieve this goal by developing, varying and reviewing standards for food available for sale in Australia and New Zealand and through a range of other functions including national food surveillance and recall systems, conducting research, assessing policies about imported food and developing codes of practice with industry. In developing and reviewing food standards for both Australia and New Zealand, ANZFA makes recommendations to change the food standards to the Australia New Zealand Food Standards Council, a Ministerial Council made up of Commonwealth, State and Territory and New Zealand Health Ministers. If the Council approves the recommendations made by ANZFA, the food standards are automatically adopted as regulations into the food laws of the Australian States and Territories and New Zealand. STEPS IN DEVELOPING AND REVIEWING FOOD STANDARDS The process for amending the Australia New Zealand Food Standards Code is prescribed in the Australia New Zealand Food Authority Act 1991 (ANZFA Act). The diagram below represents the different stages in the process including when periods of public consultation occur. This process varies for matters that are urgent or minor in significance or complexity. Comment on scope, possible options and direction of regulatory framework Provide information and answer questions raised in Initial Assessment report Identify other groups or individuals who might be affected and how whether financially or in some other way Comment on scientific risk assessment; proposed regulatory decision and justification and wording of draft standard Comment on costs and benefits and assessment of regulatory impacts Those who have provided submissions are notified of the Board s recommendation to the Ministerial Council which will appear on the ANZFA website The decision of the Ministerial Council is gazetted in Australia and New Zealand and made available on the Food Regulation Secretariat s website in Health Public Consultation Public Consultation Initial Assessment Draft Assessment Final Assessment Ministerial Council Applicant pays fees (if applicable) to commence Initial Assessment (IA) or is notified when assessment has commenced An IA report is prepared with an outline of issues and possible options; affected parties are identified and questions for stakeholders are included IA report accepted by General Manager or Proposals approved by ANZFA Board IA Report released for public comment Public submission collated and analysed Applicant pays fees if applicable. A Draft Assessment (DA) report is prepared using information provided by the applicant, stakeholders and other sources A scientific risk assessment is prepared as well as other scientific studies are completed using the best scientific evidence available Risk analysis is completed and a risk management plan is developed together with a communication plan Impact analysis is used to identify costs and benefits to all parties An appropriate regulatory response is identified and a draft change to the Food Standards Code is prepared A WTO notification is prepared if necessary DA Report considered by ANZFA Board DA Report released for public comment Comments received on DA report are analysed and amendments made to the report and the draft regulations as required The ANZFA Board considers the final report and its recommendations before forwarding the report to the Ministerial Council for approval 2

3 CONTENTS EXECUTIVE SUMMARY AND STATEMENT OF REASONS 4 REGULATORY PROBLEM 4 IMPACT 4 CONSULTATION 4 CONCLUSION AND STATEMENT OF REASONS 5 1. INTRODUCTION 6 2. REGULATORY PROBLEM 6 3. OBJECTIVE 7 4. BACKGROUND 8 5. REGULATORY OPTIONS 9 6. IMPACT ANALYSIS CONSULTATION CONCLUSION AND RECOMMENDATION 12 ATTACHMENTS 13 ATTACHMENT 1 14 ATTACHMENT 2 20 ATTACHMENT 3 36 ATTACHMENT 4 43 ATTACHMENT 4A 53 ATTACHMENT 5 59 ATTACHMENT 5A 70 ATTACHMENT 5B 73 ATTACHMENT 6 74 ATTACHMENT 6A 90 3

4 EXECUTIVE SUMMARY AND STATEMENT OF REASONS Regulatory Problem Proposal P246 was raised by ANZFA because of a lack of certainty over the interpretation and application of several labelling requirements in Volume 2 of the Food Standards Code, which are minor in nature. Consequently, clarification is needed to facilitate compliance and enforcement. The issues addressed in this paper concern: Standard Labelling of food not for retail sale or catering purposes and foods for intra company transfer. The issue is how information required by Clause 3 of Standard 1.2.1, that is, the name of the food, the lot identification, and the name and business address details of the supplier, should be provided. Standard Labelling of individual portion packs. The issue is whether or not items such as individually wrapped pieces of confectionery, sold in a fully labelled outer pack, should be required to have certain information printed on the wrappers in addition to the information provided on the outer pack. Standard Exemptions from the requirement to bear a nutrition information panel (NIP). The issue relates to the apparent omission of some items from the list of exempted foods. Standard Characterising ingredient and component labelling (Percentage labelling). The issue relates to the meaning and intent of certain definitions, an apparent duplication of requirements to provide certain information and a perceived inflexibility in the method of calculating and declaring the proportion of characterising ingredients and components of foods. Impact The impact analysis concluded that the proposed changes pose no significant public health and safety or other impacts. Overall there are no significant costs related to the proposal and there are some benefits to be gained by consumers, industry and governments, such as reduced uncertainty for suppliers of food and the public, which should result in greater compliance and more confidence in the Australian and New Zealand food system. Consultation Pursuant to section 36 of the Australia New Zealand Food Authority Act 1991, ANZFA conducted one round of public consultation in relation to this proposal. A total of 20 submissions were received in response to the Draft Assessment report, most of which were from industry. The majority supported amendment of the relevant standards, although a number of submitters also opposed some of the detailed recommendations, particularly in relation to characterising ingredient and component labelling and to exemptions from the requirement to bear a nutrition information panel. 4

5 Conclusion and Statement of Reasons The assessment concludes that there are no public health and safety risks likely to arise from the proposal. The proposed changes to Volume 2 of the Food Standards Code is consistent with the section 10 objectives in the ANZFA Act. The amendments are not considered to have any significant impact on trade, so the World Trade Organization (WTO) has not been notified. Overall, there would not be any significant costs related to the proposal but there would be benefits to consumers, industry and government in terms of the quality of the information provided on labels and a reduction in the potential for misleading or deceptive conduct. The Assessment recommends that: clause 3 of Standard be amended to specify that the name and address of the supplier of the food may be provided in accompanying documents as an alternative to being on the label; clause 2 of Standard be amended to require the declaration of certain substances on individual portion packs with a surface area of more than 30 cm 2; clause 3 of Standard be amended to add jam setting compound, gelatine, mineral or spring water, instant or soluble coffee and prepared filled rolls, sandwiches, bagels and similar products to the list of foods exempt from carrying a nutrition information panel; and Standard be amended, as discussed in Attachment 6, to clarify the intent of the standard in relation to definitions, exemptions and declarations. The proposed amendments to Standard 1.2.1, Application of Labelling and Other Information Requirements are necessary for the following reasons: some of the information required on packages of food not intended for retail sale or catering and foods intended for further processing is not known by the supplier before the food is prepared for shipping; and some items such as individually wrapped pieces of confectionery, sold in a fully labelled outer pack, do not have sufficient space on the wrapper to enable certain information to be repeated in a legible and prominent way. The proposed amendments to Standard Nutrition Information Requirements are to address apparent omissions of some items from the list of exempted foods. The proposed amendments in Standard Characterising Ingredients and Components of Food are necessary for the following reasons: the meaning and intent of certain definitions is unclear; there is an apparent duplication of requirements to provide certain information; and 5

6 there is a perceived inflexibility in the method of calculating and declaring the proportion of characterising ingredients and components of foods. The commencement date of the draft variation should come into effect on the date of gazettal. 1. Introduction Proposal P246 was raised by ANZFA to address a number of labelling issues arising from the implementation of Volume 2 of the Food Standards Code (also known as the Australia New Zealand Food Standards Code). These issues are: Issue 1 - labelling of food not for retail sale or catering purposes and food for intra company transfer; Issue 2 - labelling of individual portion packs; Issue 3 - exemptions from the requirement to bear a nutrition information panel; and Issue 4 - labelling of characterising ingredients and components (percentage labelling). 2. Regulatory Problem The standards that relate to the four issues in question were developed as part of a general review of food standards to provide a common food regulatory system for Australia and New Zealand. Volume 2 of the Food Standards Code differs from previous regulations in Australia and New Zealand in style, content and language. As with other reviews of this kind, issues have emerged during the transition from the previous regulatory framework to the new one. A regulatory problem has arisen because of a lack of certainty over the interpretation of several requirements and consequently clarification is needed to facilitate compliance and enforcement. 2.1 Issue 1 Labelling of food not for retail sale Clause 3 of Standard requires food not for retail sale or catering purposes and food for intra company transfer to be labelled with the following information: the name of the food; its lot identification; and the name and address of the supplier in Australia or New Zealand. The issue concerns the level of information necessary for the effective identification of imported bulk foods not intended for retail sale without further processing or repackaging, and the most appropriate means of providing the information. 6

7 2.2 Issue 2 Labelling of Individual portion packs Sub-clause 2(1)(b) of Standard exempts food in packages not designed for sale without an outer package from many of the labelling requirements of the Code. However, if the food is in individual portion packs, the requirement under clause 4 of Standard to include a declaration on the pack indicating the presence of certain substances applies, regardless of the presence of the declaration on the outer package. During the transition period to the Joint Code, ANZFA became aware that clarification of the term individual portion packs in sub-clause 2 (1) of Standard was required. 2.3 Issue 3 Exemptions from the requirement to bear a nutrition information panel Clause 3 of Standard lists foods that are exempt from bearing a nutrition information panel. Additional foods listed in Standard are also exempt. Following gazettal of the Joint Code, several stakeholders, including the Australian Food and Grocery Council (AFGC) have requested that a number of products be added to the list of foods already exempt from bearing a nutrition information panel under Clause 3 of Standard of the Joint Code. 2.4 Issue 4 Characterising ingredient and component labelling Standard requires the percentage of characterising ingredients and components of food to be declared so that consumers are better informed about the foods they intend to purchase. During the development of the user guide to Standard , the need to clarify the intent of certain provisions in the Standard and to provide greater assurance for manufacturers was identified. Industry and enforcement agencies also consider that certain aspects of the drafting are ambiguous and rely too heavily on subjective rather than objective assessment. 3. Objective In developing or varying a food standard, ANZFA is required by its legislation to meet three primary objectives which are set out in Section 10 of the Australia New Zealand Food Authority Act These are: the protection of public health and safety; the provision of adequate information relating to food to enable consumers to make informed choices; and the prevention of misleading or deceptive conduct. In developing and varying standards, ANZFA must also have regard to: the need for standards to be based on risk analysis using the best available scientific evidence; the promotion of consistency between domestic and international food standards; 7

8 the desirability of an efficient and internationally competitive food industry; and the promotion of fair trading in food. The objectives of this assessment of Proposal P246 are therefore to: examine the extent of possible effects on public health and safety of the proposed variations to the Code to deal with the issues raised; ensure that changes to the level of information which would result from any variation do not adversely affect the ability of consumers to make informed choices against what they value and understand; reduce the potential for deceptive or misleading conduct; and ensure that the affected standards work efficiently. 4. Background 4.1 Issue 1 Labelling of food not for retail sale Under Clause 3 of Standard food that is not for retail sale, not for catering purposes, or for intra company transfer must bear a label containing the name of the food, its lot identification and the name and business address in Australia or New Zealand of its supplier. Some sectors of the food industry expressed concern about the practical implications of providing name and address details of the supplier on labels affixed to packages, particularly in the case of imported bulk food not intended for sale to the public without further processing or packaging. They argued that overseas food manufacturers were not always aware of this information when they were labelling food or assembling loads for shipping, and that it was costly and difficult to affix the name and address details of the supplier at a later stage in the food transaction process. They believed that they should be able to provide the name and address details of the supplier in documents accompanying bulk food in transit. As the term label in Standard is defined as any statement in writing used in connection with or accompanying any food or package, it was possible for some members of the food industry to rely on this definition to support their argument. Enforcement agencies, on the other hand, contended that the words must bear a label in clause 3 of Standard meant that the prescribed information had to appear on labels affixed to individual food packages, and that the definition of label had to be considered in the context of the clause. Amendments to address this issue were discussed with the Technical Advisory Group (TAG) in October 2001 and with the Australian Quarantine and Inspection Service (AQIS) in meetings on 18 and 29 October The background and relevant issues are discussed in more detail in Attachment 3 to this Final Assessment Report. 8

9 4.2 Issue 2 Labelling of Individual portion packs During the transition period to the Joint Code, ANZFA became aware that the term individual portion packs could encompass foods such as very small items of confectionery. The confectionery industry has advised ANZFA that there are practical and economic difficulties in providing legible and prominent information on products such as small bite size ' chocolates (either twist or foil wrapped) sold in bags or boxes. The industry has also highlighted an anomaly with the current requirement where unwrapped confectionery in the same package as wrapped confectionery does not require the declaration. The background and relevant issues are discussed in more detail in Attachment 4 to this Final Assessment Report. 4.3 Issue 3 Exemptions from the requirement to bear a nutrition information panel Many industry groups believe their products are similar to, or the same as, products that ANZFA had previously exempted from the requirement to carry a nutrition information panel in Clause 3 of Standard ANZFA agreed to assess a number of the foods recommended by the Australian Food and Grocery Council for exemption. The background and relevant issues are discussed in more detail in Attachment 5 to this Final Assessment report. 4.4 Issue 4 Characterising ingredient and component labelling Several aspects of Standard require review: A. Clause 1, in relation to the definitions of characterising ingredient and component; B. Clause 2, in relation to exemptions from characterising ingredient and characterising component declarations; and C. Methods for calculating and declaring characterising ingredients and components in terms of clarifying the permission to use a minimum rather than an actual value for the weight of ingoing ingredients in calculations. The background and relevant issues are discussed in more detail in Attachment 6 to this Final Assessment report. 5. Regulatory Options The proposals assessed in this paper are of a minor nature and are intended to operate within the regulatory framework of Volume 2 approved by Ministers in Consequently, the range of options available in each case is limited. 9

10 The options for issue 1 (Labelling of food not for retail sale or catering purposes and food for intra company transfer), issue 3 (Exemptions from the requirement to bear a nutrition information panel) and issue 4 (Characterising ingredient and component labelling) were to: maintain the status quo; or amend the particular provision as proposed. The options for issue 2 were to: 1. Maintain the status quo, and leave the term individual portion pack open to interpretation; 2. Amend subclause 2(1), Standard to exempt individual portion packs with a surface area of not more than 30 cm 2 from the requirement to be labelled with a declaration of the presence of certain substances in accordance with clause 4 of Standard 1.2.3; and 3. Remove any reference to the term individual portion pack by means of a variation to Standard of Volume 2 of the Food Standards Code. 6. Impact Analysis ANZFA is required, in the course of developing regulations suitable for adoption in Australia and New Zealand, to consider the impact of various options (including non-regulatory options) on all sectors of the community, including consumers, the food industry and governments in both countries. The regulatory impact assessment will identify and evaluate, though not be limited to, the advantages and disadvantages of amendments to the standards, and their health, economic and social impacts. Parties affected by this proposal include: consumers of foods and food ingredients; industry food manufacturers, processors and growers, importers, distributors and caterers; and government agencies that regulate the food industry in Australia and New Zealand and those with an interest in food policy and regulation. The proposed changes are not expected to significantly affect costs to the public, government or industry. However, if adopted, they would reduce uncertainty for suppliers of food and the public, resulting in increased compliance with the Code and greater confidence in the Australian and New Zealand food system. The expected impacts of the various options are discussed in the individual attachments relating to the particular measure or group of measures being considered. 10

11 7. Consultation Under section 36 of the ANZFA Act, the Authority opted to omit one round of public consultation as it was satisfied that the proposal raises issues of minor significance and complexity only, and that omitting to invite public comments in relation to the proposal at the preliminary stage would not have significant adverse effect on the interests of stakeholders. A Draft Assessment Report (Full Assessment Report - section 23) requesting comment was released on 12 December 2001 and the eight-week consultation period officially closed on 6 February Prior to the development of the Draft Assessment report, ANZFA received advice from and held meetings with government authorities and industry associations in relation to the issues outlined in this proposal. The views of the stakeholders are discussed in the attachments to this paper. The ANZFA received a total of 20 written submissions in response to the P246 Draft Assessment report, released on 12 December Four of these responses were from New Zealand organizations. Submitters from both Australia and New Zealand were primarily from the food industry sector, accounting for ten and four submissions respectively. There were also four submissions from government and public health organisations and one from a consumer group. The consumer group (National Council of Women of Australia) stated that it had not had sufficient time to consider and comment on the proposal. A summary of the submissions by submitter is included in Attachment 2. The four issues relevant to P246 generated approximately the same number of responses. Fourteen submissions related to issue one (labelling of food not for retail sale), 14 to issue 2 (Labelling of Individual Portion Packs), 16 to issue 3 (Exemptions from Nutrition Information Panels) and 15 to issue 4 (Characterising Ingredient and Component Labelling). The range of views and opinions expressed in submissions to the Draft Assessment report have been taken into account in the preparation of this Final Assessment report. The table below indicates the number of submissions in support of the options. Issue Status Amend Did not indicate Total Quo an option 1. Not for retail sale Individual portion pack 0 5 support Option 2 3 support Option NIP exemptions Percentage labelling No submitter favoured maintaining the status quo. The majority of submitters supported amendment of the provisions relating to issue 1 (Labelling of food not for retail sale) and issue 4 (Characterising ingredient and component 11

12 labelling), although for issue 4, there were a number who opposed some of the detailed recommendations made by ANZFA in the Draft Assessment report. A small number of submitters also expressed concern about Standard in its entirety. In relation to issue 2 (Labelling of individual portion packs ), option 2, which was recommended by ANZFA in the Draft Assessment report, was most favoured. Option 3 was also supported. Many submitters did not indicate an option in relation to issue 3 (Exemptions from the requirement to bear a nutrition information panel). However 14 submitters supported all or some of the proposed exemptions while only 2 opposed some of them. Two submitters supported some proposed non-exemptions while 8 opposed some of them. A more detailed summary of the submissions is provided in the individual attachments relating to the particular issues being considered. 8. Conclusion and Recommendation The assessment concludes that the proposed amendments would not have any significant public health and safety or other impacts. The proposed changes are consistent with the section 10 objectives in the ANZFA Act. Overall there are no significant costs related to the proposal and there are some benefits to be gained by consumers, industry and governments. ANZFA considers that remaining with the status quo would not deliver the benefits possible with the preferred approach. The matters relating to P246 were not notified to the WTO at the Draft Assessment stage because ANZFA was not proposing any significant regulatory change, the changes were minor and they were intended to correct inconsistencies and anomalies. The original matters were however notified to the WTO when ANZFA was developing the standards. It is therefore recommended that Volume 2 be amended and the draft variation should come into force on gazettal. The proposed drafting for the amendments to each Standard is included in its respective attachment and a consolidated list is provided in Attachment 1. The proposed amendments to Standard 1.2.1, Application of Labelling and Other Information Requirements are necessary for the following reasons: some of the information required on packages of food not intended for retail sale or catering and foods intended for further processing is not known by the supplier before the food is prepared for shipping; and some items such as individually wrapped pieces of confectionery, sold in a fully labelled outer pack, do not have sufficient space on the wrapper to enable certain information to be repeated in a legible and prominent way. The proposed amendments to Standard Nutrition Information Requirements are to address apparent omissions of some items from the list of exempted foods. The proposed amendments in Standard Characterising Ingredients and Components of Food are 12

13 necessary for the following reasons: the meaning and intent of certain definitions is unclear; there is an apparent duplication of requirements to provide certain information; and there is a perceived inflexibility in the method of calculating and declaring the proportion of characterising ingredients and components of foods. Submissions No submissions on this matter are sought as the Authority has completed its assessment and the matter is now with the Australia New Zealand Food Standards Council for consideration. Further Information Further information on this and other matters should be addressed to the Standards Liaison Officer at the Australia New Zealand Food Authority at one of the following addresses: Australia New Zealand Food Authority Australia New Zealand Food Authority PO Box 7186 PO Box Canberra BC ACT 2610 The Terrace WELLINGTON 6036 AUSTRALIA NEW ZEALAND Tel (02) Tel (04) slo@anzfa.gov.au nz.reception@anzfa.gov.au Assessment reports are available for viewing and downloading from the ANZFA website People without access to internet facilities may request paper copies of reports from the Information Officer. ATTACHMENTS 1. Draft variations to the Food Standards Code 2. Summary of submissions by submitter 3. Issue 1 Labelling of food not for retail sale 4. Issue 2 Labelling of individual portion packs 5. Issue 3 Exemptions from nutrition information panels 6. Issue 4 Characterising ingredient and component labelling 13

14 ATTACHMENT 1 PROPOSAL P246 MAJOR OMNIBUS AMENDMENTS TO VOLUME 2 OF THE FOOD STANDARDS CODE To commence: On gazettal [1] Standard is varied by [1.1] omitting paragraph 2(1)(b), substituting - (b) the food is in inner packages not designed for sale without an outer package, other than individual portion packs with a surface area of no less than 30 cm 2, which must bear a label containing a declaration of certain substances in accordance with clause 4 of Standard [1.2] omitting paragraph 2(2)(h), substituting (h) subclause 2(3) of Standard ; and [1.3] omitting clause 3, substituting - 3 Labelling of food not for retail sale etc. (1) Subject to subclause (2), food (a) (b) (c) not for retail sale; or not for catering purposes; or supplied as an intra company transfer; must bear a label containing the information prescribed in clauses 1, 2 and 3 of Standard 1.2.2, except where the (d) (e) (f) food is other than in a package; or food is in an inner package or packages contained in an outer package where the label on the outer package includes the information prescribed in clauses 1, 2 and 3 of Standard 1.2.2; or food is in a transportation outer where the information that would be required on the transportation outer is clearly discernible on the labels on or attached to the packages contained within the transportation outer. (2) The information prescribed in clause 3 of Standard is not required to be on the label on a food where that information is provided in documentation accompanying that food. [2] Standard is varied by omitting clause 3, substituting - 14

15 3 Nutrition information requirements and exemptions Subject to clause 4, the label on a package of food must include a nutrition information panel except where the food is (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) sold at fund-raising events; or an alcoholic beverage standardised in Part 2.7 of this Code; or a herb, a spice, a herbal infusion; or vinegar and related products as standardised in Standard ; or salt and salt products as standardised in Standard ; or tea, decaffeinated tea, decaffeinated instant or soluble tea, instant or soluble tea, coffee, decaffeinated coffee, decaffeinated instant or soluble coffee, instant or soluble coffee, as defined in Standard 1.1.2; or an additive for the purposes of Standard 1.3.1; or a processing aid as defined in Standard 1.3.3; or fruit, vegetables, meat, poultry, and fish that comprise a single ingredient or category of ingredients; or in a small package; or gelatine as defined in Standard 1.1.2; or water, or mineral or spring water as defined in Standard 2.6.2; or prepared filled rolls, sandwiches, bagels and similar products; or jam setting compound. [3] Standard is varied by [3.1] inserting in the Table of Provisions immediately following clause 4 4A Method of determining the proportion of the characterising ingredient where the proportion is declared in a nutrition information panel [3.2] omitting clause 1 and clause 2, substituting - 1 Interpretation (1) In this Standard category of ingredients means ingredients declared in the statement of ingredients using a generic name set out in the Table to Clause 4 of Standard characterising component means a component of a food that (a) (b) (c) is mentioned in the name of a food; or is usually associated with the name of a food by the consumer; or is emphasised on the label of a food in words, pictures or graphics. Editorial note: Two examples of characterising components of food are milkfat in ice cream and cocoa solids in chocolate. 15

16 characterising ingredient means an ingredient or category of ingredients that (a) (b) (c) is mentioned in the name of a food; or is usually associated with the name of a food by the consumer; or is emphasised on the label of a food in words, pictures or graphics; but does not include (d) (e) (f) (g) an ingredient or a category of ingredients which is used in small quantities for the purposes of a flavouring; or an ingredient that is the sole ingredient of a food; or a category of ingredients that comprises the whole of the food; or an ingredient or category of ingredients which, while mentioned in the name of the food, is not such as to govern the choice of the consumer, because the variation in the quantity is not essential to characterise the food, or does not distinguish the food from similar foods. (2) Compliance with labelling requirements elsewhere in this Code does not of itself constitute emphasis for the purposes of paragraph (c) of the definition of characterising component or characterising ingredient. Editorial note: Standard defines ingredient as any substance, including a food additive, used in the preparation manufacture or handling of a food. A component of a food that is naturally present in a food is not an ingredient of the food and therefore cannot be a characterising ingredient. For example, caffeine that is naturally present in coffee or tea is not an ingredient and therefore cannot be a characterising ingredient. Examples of ingredients that are mentioned in the name of the food include strawberry yoghurt, and steak and kidney pie. An example of a category of ingredients mentioned in the name of the food is vegetables in a vegetable pastie and meat in a meat pie. In deciding which ingredients are usually associated with the name of a food by a consumer, egg. chilli con carne, consideration should be given to what an appropriate descriptive name for the product might be, were this to be given. Some examples are - Chilli con carne could be described as chilli flavoured minced beef with kidney beans. Given this description, the proportion of minced beef and kidney beans should be declared. The proportion of chilli would not be required to be declared as it is added for the purposes of a flavouring and would be exempt under paragraph (d) of the definition. A spring roll could be described as vegetables in a light pastry. The proportion of vegetables in the spring roll would in this case be declared. 16

17 Examples of ingredients that are emphasised on the label of a food in words, pictures or graphics would include an illustration of fruit and nuts in fruit and nut chocolate, or cheese if it is emphasised by words on the label such as extra cheese. 2 Declaration of characterising ingredients and characterising components (1) Subject to subclause (2), subclause (3) and subclause (4), the label on a package of food must include a declaration of the proportion of characterising ingredients and characterising components of the food, calculated and expressed in accordance with this Standard. (2) Where the proportion of a characterising component of a food is declared in accordance with this Standard, the proportion of ingredients or category of ingredients containing that characterising component is not required to be declared. Editorial note: For example, where the proportion of cocoa solids in chocolate is declared, it is not necessary to declare the proportion of the ingredients that comprise the cocoa solids. (3) A declaration of the percentage of the characterising ingredients and characterising components of a food, calculated and expressed in accordance with this Standard, where the - (a) (b) food is unpackaged; or food is made and packaged on the premises from which it is sold; must be (c) (d) displayed on or in connection with the display of the food; or provided to the purchaser upon request. (4) Subclause (1) and subclause (3) do not apply to (a) (b) (c) (d) (e) (f) (g) (h) (i) food packaged in the presence of the purchaser; or foods for catering purposes; or food delivered packaged and ready for immediate consumption at the express order of the purchaser; or prepared filled rolls, sandwiches, bagels and similar products; or food sold at fund raising events; or food in a small package; or food standardised in Standard 2.9.1; or cured and/or dried meat flesh in whole cuts or pieces; or alcoholic beverages standardised in Part 2.7 of this Code. 17

18 Editorial note: Cured and/or dried meat flesh in whole cuts or pieces is defined in Standard These declarations must be considered in the light of the prohibitions on false, misleading or deceptive representations in the Food or Health Acts and fair trading laws of New Zealand and the States, Territories and the Commonwealth. In so doing it is necessary to consider whether a false or misleading impression is conveyed to a purchaser of a particular food product. In order to determine whether the characterising components or characterising ingredients of a food should be declared, a manufacturer of food should consider which declaration best reflects the nature of the food as sold. For example, milkfat is not typically an ingredient in ice cream, but would be considered to be a characterising component in ice cream, and should be so declared. [3.3] omitting subclause 3(1), substituting (1) Subject to clause 4 and clause 4A, the proportion of a characterising ingredient or category of ingredients must be calculated in accordance with this clause, by dividing the ingoing weight of the ingredient or total weight of the ingredients within the category of ingredients by the total weight of all the ingoing ingredients of the food, and multiplying this amount by 100. [3.4] inserting immediately following subclause 3(4) - (5) The proportion of a characterising ingredient or category of ingredients may be calculated using the ingoing weight or minimum ingoing weight of the characterising ingredient or category of ingredients, provided that where a minimum ingoing weight is used, the declaration is made in accordance with paragraph 5(3)(b). [3.5] inserting immediately following clause 4 4A Method of determining the proportion of the characterising ingredient where the proportion is declared in a nutrition information panel Unless otherwise specified, where the proportion of a characterising ingredient is declared in a nutrition information panel, the amount declared must be the average quantity of the characterising ingredient or category of ingredients present in the final food. [3.6] omitting subclause 5(1), substituting (1) The proportion of a characterising ingredient or category of ingredients must - (a) (b) be declared as a percentage, and where declared in a statement of ingredients, the percentage must immediately follow the common, descriptive or generic name of the ingredient; or unless otherwise specified, be declared as the average quantity, where declared in a nutrition information panel - 18

19 (i) (ii) per serving and per 100 g; or per serving and per 100 ml. [3.7] omitting subclause 5(3), substituting (3) The proportion of a characterising ingredient or category of ingredients must be declared - (a) (b) (c) as the actual percentage; or as a minimum percentage; or unless otherwise specified, as the average quantity where declared in a nutrition information panel. [3.8] omitting subclause 6(1), substituting (1) Subject to subclause (3), the proportion of a characterising component of a food must be calculated by dividing the weight of the characterising component of the food by the total weight of the food and multiplying this amount by 100. [3.9] inserting immediately following subclause 6(2) (3) The proportion of a characterising component may be calculated using the actual weight or minimum weight of the characterising component, provided that where a minimum weight is used, the declaration is made in accordance with paragraph 7(3)(b). (4) Unless otherwise specified, where the proportion of a characterising component is declared in a nutrition information panel, the amount declared must be the average quantity of the characterising component present in the final food. [3.10] omitting subclause 7(1), substituting (1) The proportion of a characterising component of a food must - (a) be declared as a percentage; or (b) unless otherwise specified, be declared as the average quantity where declared in a nutrition information panel - (i) (ii) per serving and per 100 g; or per serving and per 100 ml. [3.11] omitting subclause 7(3), substituting (3) The proportion of a characterising component of a food must be declared - (a) (b) (c) as an actual percentage; or as a minimum percentage; or unless otherwise specified, the average quantity, where declared in a nutrition information panel. 19

20 ATTACHMENT 2 SUMMARY OF SUBMISSIONS BY SUBMITTER General Comments A. INDUSTRY Australian Food and Grocery Council Bell Tea Company Chamber of Commerce and Industry of Western Australia Goodman Fielder National Beekeepers Association of New Zealand State that the assessment of P246 must be carried out with the following in mind: o COAG principles which require that sufficient burden of proof is developed, supporting that a regulatory measure is necessary, and that burden of proof remains with the proponents of the regulatory action; viz., the Government must demonstrate to the community, against established criteria, that the regulation it intends to impose is necessary to, and will, achieve an agreed outcome. o The National Food Authority s draft concept paper, Revised Structure of the Food Standards Code which states that the Code should be structured so that it is easy to use, easy to understand, easy to interpret, free of inconsistencies and less prescriptive where appropriate. o Section 10 objectives in the ANZFA Act. o The Authority s statement that The Authority will use standards which are prescriptive enough to meet the objective set out in Section 10 of the ANZFA Act but flexible enough to allow innovation in the food industry. Recognise that some errors are bound to have been made in such a mammoth undertaking as a total review of the Food Standards Code and note that P246 is a recognition of this. Note also, however, that some of the issues raised in P246 need not have arisen had AFGC submissions and individual discussion held during the review been heeded. Support the ANZFA proposal P246 to make amendments to clarify the intent of the requirements currently in place. Support the submission made by the Australian Food and Grocery Council. Request the transition time currently proposed to change the labelling of all packaged food products be extended to a period of two years, rather than the one year remaining for the following reasons: o Guidelines to assist manufacturers in interpreting the standards have only recently become available; o Some of the standards in Volume 2 are under review or have been gazetted at a later date (for example, the icon food standards); o The requirements for other labelling issues are still under review (Country of Origin and Nutrient Content and Related Claims) Suggest that the Code should contain provisions to allow businesses to finish using old labels/packaging when a change is required due to amendments to labelling provisions. Businesses will otherwise be left with a very expensive amount of unusable packaging/labelling. Overall in favour of most of the proposed amendments because they help to provide clearer interpretation. Oppose the requirement for labelling of inner packages where the information is already provided on the outer retail pack. Are concerned at the lack of consultation with the Industry. Received no written correspondence from ANZA on this proposal and have missed out in the various stages of the amendment process, i.e. have had no notice or input on the Initial Assessment for P246. Request that a provision is made on the ANZFA website for a sign on facility that will automatically inform subscribers to new proposals that require public submission. This will greatly enhance stakeholders ability to submit on proposals affecting their respective industries. 20

21 Nestle Tetley Australia Unilever Australasia Request that ANZFA consider the implication of subsequent changes to the labelling standards in Volume 2 within the period of the transition. There are significant costs to industry, which will ultimately be passed on to consumers, as well as a high degree of confusion about the form of labelling required when certain matters are still the subject of review. Manufacturers will be required to take a more cautious and usually more costly approach in these circumstances. Support and agree with the submission made by the Australian Food and Grocery Council. Support the ANZFA proposal to make amendments to clarify the intent of the requirements currently in place. Support the submission made by the Australian Food and Grocery Council Request that the transition time currently proposed to change the labelling of all packaged food products be extended to a period of two years rather than one year remaining because: o User guides have only recently become available o Some of the standards in Volume 2 are under review or have been gazetted at a later date (for example, the icon food standards) o The requirements for other labelling issues, such as Country of Origin and Nutrient Content and Related Claims are still under review. Support the ANZFA proposal to make amendments to clarify the intent of the requirements currently in place. Support the submission made by the Australian Food and Grocery Council Request that the transition time currently proposed to change the labelling of all packaged food products be extended to a period of two years rather than one year remaining because: o User guides have only recently become available o Some of the standards in Volume 2 are under review or have been gazetted at a later date (for example, the icon food standards) o The requirements for other labelling issues, such as Country of Origin and Nutrient Content and Related Claims are still under review. B. GOVERNMENT AND PUBLIC HEALTH PROFESSIONALS CSIRO Health Science and Nutrition WA Food Advisory Committee C. CONSUMERS National Council of Women of Australia Support the suggested amendments to the code, which should improve the quality of the information provided and assist in reducing confusion among suppliers of food and enforcement agencies. Support the changes outlined in the proposals to amend the standards and remove anomalies. Regret that no comment could be provided, not through lack of interest, but simply because of ANZFA s timing in sending P246 out for public comment over the Christmas break. Have continually advised ANZFA over the past five years, that so many submissions so late in December make it impossible for the NCWA to reply, even with a week s grace. Members of NCWA cannot be consulted or prepare submissions from mid-december until mid-february when Council offices are closed. 21

22 ISSUE 1 LABELLING OF FOOD NOT FOR RETAIL SALE A. INDUSTRY Australian Food and Grocery Council Bell Tea Company Confectionery Manufacturers Association Food and Beverage Importers Association Note that this issue has arisen because of a late change to the drafting in the ANZFA proposal as published, in which the definition of package was amended to specifically exclude palette over-wraps. Stated that this change was made after submissions had been received. Note that it is not some sectors of the food industry that may have chosen to interpret the Code differently and to their advantage over others who have made a literal interpretation of the clause, as suggested in ANZFA s proposal, but AQIS which has exacerbated the problem by its literal and inflexible interpretation of the requirements. Supports the proposed amendment to Clause 3 of Standard to allow name and address details of the supplier to be provided either on the label or in associated documents. Had previously agreed with ANZFA for a clear link between the associated documents and bulk products. However do not consider there is any need to make specific reference to this as the drafting proposal by ANZFA uses the words in documentation accompanying that food. Consider that the fact that the documents are accompanying the food is sufficient link between the two. Support the proposed solution to allow the name and address details of the supplier to be provided either on the label or in associated documents. State that the existing situation has caused significant costs to Bell Tea Company. Generally support the proposed amendment to allow the name and address of the supplier to be provided either on the label or in associated documents. Consider that the proposed amendment allows increased flexibility to industry, without raising public health and safety concerns. State that the labelling problems associated with imports, where the importer in Australia or New Zealand is not known at the time of packing, will be alleviated by the proposed alternative means. Strongly support Option 2, which allows an alternative means of providing the name and business address of the supplier. Note that Option 2 still requires the name and address of the supplier to be declared, but allows for the information to be presented in documentation accompanying the food, rather than being compulsorily on the package. State that there is generally an ongoing relationship between the supplier and the purchaser of food not for retail sale and an exchange of documents (e.g. delivery dockets, commercial invoices, delivery receipts) to ensure correct delivery and payment. In some cases, imported bulk product may be delivered direct to the processor s premises, without passing through the importer s warehouse or, in other cases, the importer is the actual processor of the bulk food. Examples of food not for retail sale are green coffee beans to be roasted by the importer; dates sorted, graded and repacked for the consumer by the importer and sultanas washed by the importer and repacked into bulk containers for sale to a domestic processor. State that it is not always possible to have bulk foods labelled overseas with the name and address of the importer. For example, agricultural commodities that are produced seasonally are packed, marked and then stored, very often without the purchaser being known. When an order is placed, the product is taken from stock, but it is extremely difficult to have the name and address of the importer added to the label. If the warehouse does not have adequate re-labelling facilities, the food would have be trans-shipped to another warehouse for re-labelling, which if possible to arrange, would be a significant cost, would be inefficient in double handling and would increase the risk of transit damage. State that in other cases, bulk food may be exported without it being known who the actual importer will be (e.g. frozen pork, which may be traded on the water, and if not sold, imported by the exporter s agent). The importer s details can be labelled only after they are known (i.e. after importation). Re-labelling in Australia involves practical difficulties, increased risk of damaging the goods due to pallets being broken down and repackaged, increased direct cost due to re-labelling, inefficiency of double handling, indirect costs arising from the delay in delivering to the customer. Questioned the need to incur such costs when the information is readily available on accompanying documentation. 22