The Food Standards Australia New Zealand Act 1991 (FSANZ Act) is currently undergoing its first major review in almost 30 years.
The review is taking place in the context of a wider reform of Australia and New Zealand's bi-national food regulation regime, to ensure it remains strong and agile into the future.
As part of the review of the FSANZ Act, a scoping paper has been released for public consultation across New Zealand and Australia. Stakeholders have been asked for their views on the paper, which outlines key issues with the FSANZ Act (and Food Standards Australia New Zealand's associated functions), and proposes legislative and operational reform ideas to support best practice moving forward.
The scoping paper
Since its enactment in 1991, the FSANZ Act has been amended many times, however key parts of the Act have not been reformed or reviewed. During this time, there have been various changes in consumer preferences, behaviour, and expectations around food. Government priorities and industry practices have also evolved. Technological advancements and an increasingly global food market have been driving changes in food production, supply and security. At the same time, non-communicable diseases such as those related to obesity are on the rise, and governments are increasingly looking for ways to promote and support long-term healthy behaviours.
In light of these challenges, the scoping paper considers how the FSANZ Act and Food Standards Australia New Zealand (FSANZ) might be reformed to facilitate a more efficient and effective regulatory regime for the food industry. It does so through identifying issues and opportunities across the following five key focus areas:
Objectives – FSANZ Act and FSANZ's objectives in developing or reviewing food regulatory measures.
Functions – FSANZ's current statutory functions and the potential for FSANZ to undertake additional roles in Australia and/or New Zealand.
Legislative processes and decision making – including statutory application and proposal processes and decision-making arrangements for variations to food standards.
Partnerships – FSANZ's relationships within and outside the food regulatory system, including policy development, enforcement and the food-medicine interface.
Operations – FSANZ's governance, resource allocation and funding, including its scope for cost recovery.
Some of the main problems identified in the scoping paper include:
the regulatory objectives for the food system and FSANZ's statutory functions require clarification,
there are currently limited mechanisms for the review of standards to ensure they remain suitable and fit-for-purpose,
governments' and FSANZ's priorities are not always aligned, leading to inefficiency,
there is inconsistent interpretation and enforcement of food standards, both within and across jurisdictions, and
the boundaries between food and medicine (and their respective regulatory frameworks) are not always clear.
As well as issue identification, the scoping paper presents 25 different reform ideas.
The current review of the FSANZ Act provides an opportunity for stakeholders in the food industry to reflect on the current regime and to play a part in its reform to ensure a more functional, adaptable, consistent and robust food regime. It is important that affected businesses review the scoping paper and consider whether to file a submission.
Businesses should consider making submissions as to:
The regulatory objectives of the food system, and in particular whether:
'public health' and 'safety' should be defined in legislation to affirm the inclusion of both short-term and long-term health and nutrition as a core objective of the FSANZ Act,
supporting trade should be recognised as a core goal for FSANZ,
consumer choice should be a factor to which FSANZ “must have regard" in developing or reviewing food regulatory measures.
Whether FSANZ should undertake a wider range of functions moving forward – for example, in emerging food and food crime, coordinating food safety research, and running education campaigns.
Whether a more systematic and strategic approach to reviewing food standards should be implemented to ensure their ongoing relevance – for example by applying “sunset" provisions or expiry dates to food standards, and/or better resourcing FSANZ to undertake regular, more holistic reviews of food standards.
Whether the processes for varying food standards should be amended to make them more agile and risk-based; and decision-making arrangements should be redefined to support more timely and efficient sign-off of regulatory measures.
Whether additional pathways to develop or vary food regulatory measures should be introduced – for example, giving FSANZ the ability to adopt or assess risk assessments from overseas jurisdictions and/or adopt international standards; or creating industry-led pathways to expedite applications and bring new products to the Australian and New Zealand markets.
Whether food policy development and standards setting needs to be better aligned, for example through joint agenda setting between FSANZ and the Forum and/or amending statutory timeframes to support more strategic prioritisation of work.
The degree to which inconsistent interpretation of food standards presents an issue, and what reform is needed to address this. The scoping paper has proposed as potential reforms: enhancing FSANZ's role in providing guidance about food standards; enabling FSANZ to give binding interpretive advice on food standards; and enhancing FSANZ's regulatory role by providing limited enforcement powers.
What issues arise and whether reform is needed in respect of the food-medicine interface and the oversight of health claims. The scoping paper has proposed as potential reforms: focusing on improving this interface through regulatory practice; broadening the role of FSANZ to assess general level health claims; and aligning definitions and powers in legislation between therapeutic goods and foods.
The degree to which FSANZ's governance arrangements, resourcing and agenda setting are an issue for the food regulation system.
The ongoing review of the FSANZ Act is indicative of the growing importance of and focus on food. There are emerging pressures on production, new technological and security challenges, and increasing scrutiny from consumers and regulators. Businesses in the food industry should take this opportunity to ensure the food regulatory regime is both capable of responding to these challenges, and fit for their business goals moving forward.
Submissions close midday 16 November 2020. If you would like more information, or assistance with preparing a submission, please contact the authors or your usual Bell Gully adviser.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.