There is an overlap in the TGA[1] definition and labelling requirements of irradiated Food Medicine Institutes (FMIs). Products overlapping as foods and medicines are put in the Food-Medicine-Interface (FMI). Regulators, manufactures, and importers are left to work out the 1989 TGA[2], the state or territory food policies on these products. The 2001 Food Act FA [3], the 2002 Food Safety Regulation FSR[4], and the Australia New Zealand Food Standards Code ANZFSC are all less clear in their guidelines on the labelling of irradiated FMIs. Summed up, this demands for the collaboration of the Food Standards Australia New Zealand FSANZ with the TGA and manufacturer compliance to the 2016 Country of Origin Food Labelling Information (CoOL) Standard, CoOL, labelling requirements.
| Recommendations · The TGA, FSANZ and Australian state and territory food regulators need to collaborate. · Irradiated food products must be labelled in accordance to CoOL 2016 Standards. |
Introduction
Irradiation is an emerging process, a relatively new technology in food treatment. In Australia, the irradiation of FMIs continues to undergo changes, with emerging trends demanding for the adoption of a novel regulatory governance that respond to them. [5] This policy brief aims at shedding light on the issue of irradiated FMI food labelling in Australia.
Problem
The fog surrounding policies on the labelling of irradiated FMIs implies that regulators, manufactures, and importers need to work out on whether the 1989 TGA, state or territory food legislation covers FMIs. The regulatory framework, including the 2001 FA, the 2002 FR and the ANZFSC are short in addressing these issues. FMI labelling is dependent on the federal, state or territory governments. Therefore, there is a need for regulations to guide the labelling of irradiated FMIs and reform food labelling, which some scholars have refered to as a ‘murky environment’.[6]
Effects
Miniature fonts are used in labelling irradiated foods. [7] Only positive information is included in labels. Unpackaged irradiated products are required to have a sign nearby at the point of sale which may be less discernible to consumers than actual labels. [8] Irradiation statements are written alongside other product information, making it less discernible to consumers. [9] Manufactures fail to use familiar terms in labelling. [10]
Figure 1: Irradiated mango on sale. (Walmsley, 2013)[11]
Cause
The Australian TGA [12] definition of products in the FMI is ambiguous.[13] This leaves manufactures, importers and regulators to work out the 1989 TGA and state or territory legislation covers particular products. [14] Some regulations as witnessed in the case of Souvenaid have failed to protect consumers.[15] Promoters of the product were accused of promoting it as a “clinically proven” product, which is against the Therapeutic Goods Advertising Code 2007[16] and TGA 1989. The product does not follow guidelines to be accorded as a therapeutic product provided by Australian Register of Therapeutic Goods (ARTG).
Solutions
Collaboration
The continued collaboration of the TGA, FSANZ and Australian state and territory food regulators in implementing the 2001 FA, the 2002 FRA, and the ANZFSC will align Australia with the changing demands of the food sector. The scope of the Acts and the legal capacities of enforcing agencies in carrying out the outlined functions must be sufficient enough to address the demands of food regulation.[17]
Compliance to Regulations
Australia is a World Trade Organization (WTO) member and an adoptee of the Codex Alimentarius. [18] Australia is striving toward the achievement of singular domestic food standards consistent with WTO Codex standards. Imperatively, food manufactures must include even the last molecules of irradiated ingredients alongside other ingredients even in cases where the un-irradiated ingredient does not appear on the label. [19] There is also a need for ensuring that all products that require organic certification symbols have them.
Figure 2. (Do, 2015)[20]
Policy Implications
To implement the above solutions, the Australian Government should harness the cooperation among different stakeholders including the state and territorial food regulators, the TGA, and FSANZ among other parties.[21]
- More trade doors could be opened for the Australian food sector. Stiff regulations in labelling of irradiated foods will mean that other countries trading with Australia will trust its regulatory provisions in the food sector. [22]
- A better system for the assessment of products at the interface in a uniform and systematised way will be created. [23]
Although strides have been made in FMIs irradiation regulations, there is still a need to formulate policies to improve collaboration of the TGA, the FSANZ and the Australian state and territory food regulators, which will minimise the fog surrounding FMIs.
Question B: The Role of Modern Law in Shaping Australia’s Food Laws
International Law
On a normative scale, the obligatory degree of norms stipulated in the Codex Alimentarious is ill-defined.[24] The use of the norms in the Codex Alimentarious is not yet official, they still largely remain recommendations. In practise, their growing importance is being realised. The recommendations have emerged from obscurity to acquire real strategic and political importance.[25] This more so results from the continued adoption of the Codex into the World Trade Organization (WTO) law.[26] In 1994, the Codex gained significant importance after it was incorporated into the WTO regime through the Agreement on the Application of Sanitary and Phytosanitray Measures and Agreement on Technical Barriers of Trade. Adoption of the Codex has formed a legal framework where higher standards of accountability, legitimacy and principles of application are discussed.[27] In line with this, the NFA, was established as an independent expert organisation tasked with the development, variation and review of food standards.[28]
Local Framework On Food Regulation
As mandated under the National Food Standard Agreement, NFA, Act, the NFA’s role was to draft and recommend food standards later ratified by the National Food Standards Council, NFSC, (The Australian New Zealand Food Standards council, ANZFSC,).[29] These standards would then be adopted by the federal, state, local and territory governments without variation. Based on the Australian New Zealand Food Standard Code, Australia now has approximately 150 Acts and other associated regulations on the control of foodstuff.[30] The State of Queensland for example has partnered with the Queensland Health, and the Safe Food Production Queensland to police the supply of food. [31] The three agencies work conjunctively to enforce the State’s Primary Act, [32] The Food Preoccupation (Safety) Regulation, FP(S)R, 2014, the The Food Regulation (FR) 2016, and the The Food Production (Safety), FP(S)A, 2000.
The structural framework of the Acts allows for the supervision of the manufacturing, wholesale and retail sectors of the food industry in the area. [33] The agencies in the state have concerted their efforts, working closely with businesses as a proactive measure to ensure that they understand and assist them to comply with the legislative responsibilities.[34] The higher the risk food poses to the local community the more stringent its regulations.[35] Therefore, the conjunctive role of the international, federal, state and territorial law serves to consolidate domestic responsibility on food standards.
Question C
Part A question 1
The Country of Origin Food Labelling Information (CoOL) Standard 2016 under section 134 of Schedule 2 of the Competition and Consumer Act 2010, CoOL 2016, has provisions for the stock in trade. It states that a label on goods in stock are taken to be compliant if the label was attached before, on, or 24 months after the day of commencement.[36] Labels accompanying or displayed on foods that are connected to its sale are compliant with the CoOL regulations if the sale of the food occurs before or 24 months after the day of commencing.[37]
Part A question 2 i)
All priority food grown, produced, made or packaged in Australia must bear a standard mark.[38] The manufacturer chooses from two standard marks. [39] Statements on the country of origin have to be accompanied by an ongoing bar chart or text representation of the Australian ingredient proportion by their weight. The label must also contain a kangaroo logo. Additional information may be voluntarily added on a label in certain cases. [40]
Part A question 2 ii)
For the foods made, grown, produced or package in another country other than Australia, the packing must have a clear statement on the country of origin.[41] Foods from oversea countries with portions of Australian ingredients may voluntarily also include an ongoing bar chart or text representation of the Australian ingredients by weight.[42]
Part A question 3
Yes. The CoOL Standard 2016 also has provisions on the placement of standard marks and country of origin for non-priority foods. These are voluntary, rather than mandatory.[43] The use of the bar chart and/or the kangaroo in non-priority foods must be part of a standard mark in line with section provisions. [44]
Part B
Part B question 1
- ABC’s macadamia nuts were produced, grow and made in various countries and only about 6% of the ingredients originate from Australian.[45]
- Figure 2.[46]
- In one of ABC’s jam products, only less than 10% of the ingredients in the jam exclusively originated in Australia.
[47]
Figure 3.[48]
Question D: Jamie’s case
Question 1 i)
The Australian Consumer Law of 2011 in schedule 2 of the Competition and Consumer Act 2010 ACL is a federal law aimed at promoting fair trading and protecting Australian consumers.[49] The ACL as enforced by the Australian Competition and Consumer Commission ACCC can be used against Jamie to prevent him from selling unsafe food.[50] Jamie’s continued supply or offering of food that does not comply with the ACL provisions amounts to criminal activity. [51]
Question 1 ii)
Laws on fair trading in New Zealand and Australia demand that food labels do not misinform consumers through deceptive, false or misleading representation.[52] As two countries that primarily determine the food security levels in the Australian population, regulations as governed by the Foods Standards Australia New Zealand (FSANZ) help provide guidelines on how to improve food and trade security in the region. Local councils need to work with state and territorial governments in implementing established standards. In Australia, the ACL is contained in the 2010 competition and consumer act. [53]
The ACCC is tasked with enforcing this 2010 consumer act. Jamie’s act of selling falsely labelled food is in contravention of the ACL.[54] False description of foods sold to consumers threatens their food security and may lead to health hazards. As such, local councils should arrest and see through Jamie’s prosecution based on set regulations.
Question 2
Jamie’s supply of food with false description is contrary to the provisions of the ACL. His non-compliance attracts a liability under ACL provisions that prohibit false or misleading representations and misleading or deceptive conduct. The maximum court-ordered penalty for contravention under is $1.1 million for a corporation and $220,000 for a person.[55] Jamie’s false description that presents potential for harm for having relied on false information may attract a maximum fine of $220,000. In addition, Jamie may be asked to compensate affected individuals, get an injunction or correct his advertisements.
Question E: Claims Under the Food Standards Code
The Food Standards Code FSC defines a claim as an implied statement, or expression, design, representation or information related to food or food property not mandatory in the Code. [56] Claims regulated in the standard include nutritional content claims on the presence of absence of nutritional properties in food.[57] High level health claims on the properties of food and heir effects on health in reference to serious diseases or serious diseases biomaker.[58] And general level health claims on the presence or absence of food properties and its effects may not be a high level health claim.[59]
Health claims are to be supported by scientific evidence to the same degree of certainty, whether they are pre-approved by FSANZ or self-substantiated. Additionally, health claims are only permitted on foods that meet a Nutrient Profiling. [60] Indeed, the efforts by the FSC provide a base for ensuring that Australia handles emerging food security challenges and build a resilient food value chain.[61] The public remains adamant and expects that FSANZ makes regulations to adopt technology in ensuring food security in the region. Nevertheless, multiple levels in governance is a major challenge in determining whether regulations in the food sector are not fragmented.
Question F: Imported Food
Relevant Legislation and Responsible Authorities
Imported food must comply with Australia’s biosecurity law [62] as implemented by Department of Agriculture and Water Resources Biosecurity Import Conditions Systems BICON. Additionally, imported food must comply with the 1993 regulations. [63] The regulations require compliance to biosecurity guidelines stipulated in the bio-diversity act and safety precautions prescribed in the 1992 act.[64] The Imported Food Inspection Scheme IFIS implements the acts and ensures that enough provisions are made to guide local councils on the same.
IFIS Inspection Categories
IFIS categorises imported food as either ‘risk’ or ‘surveillance’ food. ‘Risk’ foods are described by the FSANZ to have ‘medium’ to ‘high’ risk. [65] Initial inspection rate for ‘risk’ food is 100%, reducing to 5% as a producer builds compliance history. Surveillance foods are classified as ‘not’ posing high risk to human health.[66] Only 5% of surveillance foods are inspected. Inspection failure attracts future consignment inspection rates of 100% until establishment of a history of compliance. All this is aimed at protecting consumer health.
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- Journal Articles
Do, Christina. ‘Organic Food Labelling in Australia: A Murky Environment in Need of Reform’ (2015) 34 U. Queensland LJ 123.
Farkas, J., ‘Irradiation for better foods’ (2006) 17(4) Trends in food science & Technology 148-152.
Ghosh, Dilip, ‘Food safety regulations in Australia and New Zealand Food Standards’ 2014 94(10), Journal of the Science of Food and Agriculture, 1970-3.
Hasell, Sally K. and Mark A. Salter, ‘Review of the microbiological standards for foods’ (2003) 14(6) Food control, 391-398.
Kume, Tamikazu, Masakazu Furuta, Setsuko Todoriki, Naoki, Uenoyama and Yasuhiko Kobayashi, ‘Status of food irradiation in the world’ (2009) 78(3) Radiation physics and Chemistry 222-226.
Mhurchu, Cliona Ni and Delvina Gorton. ‘Nutrition labels and claims in New Zealand and Australian: a review of use and understanding.’ (2007) 31(2) Australian and New Zealand Journal of public health 105-112.
Roberts, Peter B. ‘Food irradiation is safe: Half a century of studies’ (2014) 105 Radiation Physics and Chemistry, 78-82.
Stewart, Terrence P., and David S. Johansson. ‘The SPS Agreement of the World Trade Organization and International Organizations: The roles of the Codex Alimentarious Commission, the International Plant Protection Convention, and the International Office of Epizootics’ (1998) 26 Syracuse J. Int’l L. & Com., 27.
Williams, Peter ‘Consumer understanding and use of health claims for foods’ (2005) 63(7) Nutrition reviews, 256-264.
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Albert, Janice. (ed.), Innovations in food labelling (CRC Press, 2014).
Barraclough, Simon and Gardner, Heather. Analysing health policy: a problem-oriented approach (Churchill Livingstone/Elsevier, 2008).
Byttebier, K., and Kim Van der Borght, WTO trade obligations and opportunities: challenges of implementation, (Cameron May, 2007).
FAO and the WHO, Codex Alimentarius Commission: food import and export inspection and certification systems: combined texts. (Food and Agriculture Organization of the United Nations World Health Organization, 2005).
Hubert Roginski, and John W. Fuquay, Encyclopaedia of dairy sciences (Elsevier/academic Press, 2014).
Robert B. Wallace, Enhancing food safety: the role of the Food and Drug Administration (Washington D.C.: The National Academies Press, 2010).
Vos, Ellen and Everson, Michelle, Uncertain risks regulated (Routledge, 2009).
- Legislation
Biosecurity Act 2015 (Cth).
Country of Origin Food Labelling Information (CoOL) Standard 2016 (Cth).
Imported Food Control Act 1992.
Imported Food Control Regulations 1993 (Cth).
The Australian Consumer Law of 2011 (Cth).
The Competition and Consumer Act 2010 (Cth).
The food Act of 2001 (Cth).
The Food Preoccupation (Safety) Regulation 2014 (Cth).
The Food Production (Safety) 2000 (Cth).
The Food Regulation 2016 (Cth).
The Food Safety Regulation of 2002 (Cth).
The Therapeutic Goods Act 1989 (Cth).
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2017 ACCC Compliance and Enforcement Policy, Compliance and Enforcement Policy (February 2017) <https://www.accc.gov.au/system/files/ACCC%20Compliance%20and%20Enforcement%20Policy%202017.pdf>
ACCC compliance and enforcement Policy, Compliance and Enforcement Policy <https://www.accc.gov.au/system/files/ACCC%20Compliance%20and%20Enforcement%20Policy%202017.pdf>
Commonwealth of Australia, Food Regulation in Australia—A Chronology (2001) <http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/8VY46/upload_binary/8vy463.pdf;fileType=application%2Fpdf#search=%22library/prspub/8VY46%22>.
County of Origin Labelling 2016, <https://www.legislation.gov.au/Details/F2017C00114>.
Department of Agriculture and Water Resources. <http://www.agriculture.gov.au/import/goods/food> and <http://www.agriculture.gov.au/export/from-australia>.
Food Standards, Labelling <http://www.foodstandards.gov.au/industry/labelling/Pages/default.aspx>.
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Queensland Health: Monitoring and enforcement of the Food Act 2006, State of Queensland, (September 2015) <https://publications.qld.gov.au/dataset/food-safety-documentation-for-local-government-officers/resource/ddf3993f-db4e-4cf9-a158-57ed038afdca>.
The Therapeutic Goods Administration, Australian Government department of Health, <https://www.foodstandards.gov.au>.
Walmsley, Ashely, Irradiation: pros and cons <http://www.farmonline.com.au/story/3588034/irradiation-pros-and-cons/>.
- Others
Robin Taubenfeld, Food Irradiation and Australia (Food Irradiation Watch Australia, 2010).
[1] The Therapeutic Goods Administration, Australian Government Department of Health, <http://www.foodstandards.gov.au >.
[2] The Therapeutic Goods Act 1989 (Cth) s 1.
[3] The Food Act of 2001 (Cth), s 4.
[4] The Food Safety Regulation of 2002 (Cth), s 1.
[5] Janice Albert, (ed.), Innovations in food labelling (CRC Press, 2014) 71.
[6] Christina Do. ‘Organic Food Labelling in Australia: A Murky Environment in Need of Reform’ (2015) 34 U. Queensland LJ 123.
[7] Taubenfeld Robin, Food Irradiation and Australia (Food Irradiation Watch Australia, 2010)1.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ashely Walmsley, Irradiation: pros and cons <http://www.farmonline.com.au/story/3588034/irradiation-pros-and-cons/>.
[12] The TGA, Australian Government Department of Health, <http://www.foodstandards.gov.au >
[13] Ibid
[14] Ibid
[15] “Regulations around food-medicine products fail to protect consumers” 2013 May. <https://theconversation.com/regulations-around-food-medicine-products-fail-to-protect-consumers-14360> .
[16] Therapeutic Goods Advertising Code 2007.
[17] Food Standards, Labelling <http://www.foodstandards.gov.au/industry/labelling/Pages/default.aspx>.
[18] Ellen Vos and Michelle Everson, Uncertain risks regulated, (Routledge, 2009) 329.
[19] Country of Origin Food Labelling Information (CoOL) Standard 2016, (Cth) s 18.
[20] Christina Do. ‘Organic Food Labelling in Australia: A Murky Environment in Need of Reform’ (2015) 34 U. Queensland LJ 123.
[21] Christina, Do. ‘Organic Food Labelling in Australia: A Murky Environment in Need of Reform’ (2015) 34 U. Queensland LJ 123.
[22] Country of Origin Food Labelling Information (CoOL) Standard 2016, s 15.
[23] Christina, “Organic Food Labelling in Australia”, U. Queensland LJ 34(2015)
[24] Byttebier K., and Kim Van der Borght, WTO trade obligations and opportunities: challenges of implementation (Cameron May, 2007) 141.
[25] Ibid
[26] Ibid, 35-42.
[27] Byttebier, and Kim Van der Borght, Above n, 35-42.
[28] Barraclough, Simon and Gardner, Heather. Analysing health policy: a problem-oriented approach (Churchill Livingstone/Elsevier, 2008) 77.
[29] Commonwealth of Australia, Food Regulation in Australia—A Chronology (2001) <http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/8VY46/upload_binary/8vy463.pdf;fileType=application%2Fpdf#search=%22library/prspub/8VY46%22>.
[30] Simon Barraclough and Heather Gardner, Above n, 263.
[31] Queensland Health: Monitoring and enforcement of the Food Act 2006, State of Queensland, (September 2015) <https://publications.qld.gov.au/dataset/food-safety-documentation-for-local-government-officers/resource/ddf3993f-db4e-4cf9-a158-57ed038afdca>.
[32] Ibid
[33] Hubert Roginski, and John W. Fuquay, Encyclopaedia of dairy sciences (Elsevier/academic Press, 2014), 217.
[34] Queensland Health: Monitoring and enforcement of the Food Act 2006, State of Queensland, (September 2015) <https://publications.qld.gov.au/dataset/food-safety-documentation-for-local-government-officers/resource/ddf3993f-db4e-4cf9-a158-57ed038afdca>
[35] Ibid
[36] Country of Origin Food Labelling Information (CoOL) Standard 2016, s 33.
[37] Queensland Health: Monitoring and enforcement of the Food Act 2006, Above n
[38] CoOL 2016 Standard, s 27.
[39] Ibid, s 33.
[40] CoOL 2016 Standard, part 2 Division 3, s 18.
[41] Ibid
[42] Ibid
[43] Ibid, s 18 to 23.
[44] Cliona Ni Mhurchu and Gorton Delvina, ‘Nutrition labels and claims in New Zealand and Australian: a review of use and understanding.’ (2007) 31(2) Australian and New Zealand Journal of public health, 111.
[45] CoOL 2016 Standard, s 20.
[46] CoOL 2016 Standard, (Cth) s 20.
[47] Ibid
[48] Ibid
[49] The Australian Consumer Law Standard 2011, (Cth) s 136.
[50] Peter Williams, ‘Consumer understanding and use of health claims for foods’ (2005) 63(7) Nutrition reviews, 259.
[51] The Australian Consumer Law Standard 2011, (Cth) s 136.
[52] Dilip Ghosh, ‘Food safety regulations in Australia and New Zealand Food Standards’ 2014 94(10), Journal of the Science of Food and Agriculture, 1971.
[53] The Competition and Consumer Act 2010, (Cth) s 130.
[54] The Australian Consumer Law Standard 2011, (Cth) s 136.
[55] Ibid.
[56] The Food Standards Code, s 1.1.1.
[57] Ibid.
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] Dilip Ghosh, ‘Food safety regulations in Australia and New Zealand Food Standards’ 2014 94(10), Journal of the Science of Food and Agriculture, 1971.
[62] Biosecurity Act 2015 (Cth), s 124.
[63] Imported Food Control Regulations 1993 (Cth), s 4.
[64] Imported Food Control Act 1992, (Cth) s 8.
[65] Commonwealth Department of Agriculture under the Imported Food Control Act 1992 (Cth), s 9.
[66] Robert B. Wallace, Enhancing food safety: the role of the Food and Drug Administration (Washington D.C.: The National Academies Press, 2010).
