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Proposal P1001 – Omnibus VII – Assessment Report

7 May 2008

Dear Sir/Madam

Thank you for the opportunity to comment on this proposal. The New Zealand Food Safety Authority (NZFSA) has the following comments to make.

NZFSA is concerned that this Proposal has, in some instances, set out to amend more than “minor errors, inconsistencies and ambiguities” in the Australia New Zealand Food Standards Code (FSC). NZFSA believes the proposed changes that relate to the following Standards are significant and that these be addressed in proposals independent of this Proposal.

• Standard 1.1.1 - Preliminary Provisions – Application, Interpretation and General Prohibitions

• Standard 1.6.1 - Microbiological Limits for Food

• Standard 2.7.5 - Spirits

Comments have been made on these Standards where appropriate throughout this submission.

NZFSA agrees with Option 2 to vary the FSC to incorporate a number of proposed amendments. However NZFSA recommends a number of changes to some of these amendments are needed. NZFSA acknowledges that FSANZ has not invited comment on the Editorial notes, however NZFSA has identified several changes that should be considered. Please note that where there is agreement with the proposed change no comment has been made. Furthermore, NZFSA has not commented on the Australia only Standards in this Proposal.

Comments in this submission are set out in three parts with titles relating directly to the Assessment Report: 1. Attachment 1 Draft Variations to the Australia New Zealand Food Standards Code; 2. Attachment 2 Draft Variations to the Editorial Notes in the Australia New Zealand Food Standards Code; and 3. Attachment 3 Proposed Amendments to the Code.

1. Attachment 1 Draft Variations to the Australia New Zealand Food Standards Code

[1] [1.1] omitting subclause 1(2), substituting -

(2) Deleted

Comment: NZFSA considers that the removal of subclause 1(2) provision is a significant policy change and requests that this matter should be considered in a separate proposal.

NZFSA accepts that the new provisions may be equivalent for products in the future. However, we believe that there are likely to be existing products on the market that are currently being sold under this transitional provision. This scenario has not been taken into account. The simple deletion of this provision does not consider such products and therefore NZFSA recommends that this is considered by FSANZ prior to deletion.

[4] [4.3] inserting following subclause 5(5) –

(5A) An absence of dietary fibre must be declared as zero (0) in the Nutrition Information Panel

Comment: Incorporation of the proposed subclause into the Standard is confusing as the way it is worded appears to require the Nutrition Information Panel to state both that fibre is absent and that it is at zero. NZFSA recommends rewording newly proposed subclause (5A) to say -"Zero (0) must be used to indicate the absence of dietary fibre under subclause (5)." This provides for a clearer relationship between the two provisions.

[9] [9.1] omitting clause 3, and substituting –

3 (g) The Merck Index, 14^th Edition, (2006); or…

Comment: The remainder of the reference (the country and author) to the Merck Index should be stated here.

[11] [11.1] omitting the third paragraph of the Purpose, substituting -

Residues of agricultural compounds are regulated in New Zealand by a food standard issued under section 11C of the Food Act 1981.

Comment: NZFSA recommends that this would read better as "In New Zealand, the maximum residue limits for agricultural compounds are set in a Maximum Residue Limits Standard issued under section 11C of the Food Act 1981."

[13] [13.1] omitting the reference to clause 4 in the Table of Provisions, substituting –

4 Deleted

Comment: Please refer to comments made later in this submission in 2. Attachment 2 Draft Variations to the Editorial Notes in the Australia New Zealand Food Standards Code: [14].

[13.2] omitting from subclause 2(2) –

“must not exceed” and substituting – “must not be more than”

Comment: NZFSA questions the use of the words "must not be more than" being substituted here. NZFSA recommends using "must be no more than", as stated elsewhere in the FSC.

2. Attachment 2 Draft Variations to the Editorial Notes in the Australia New Zealand Food Standards Code

[14] The Editorial notes in Standard 1.6.1 of the Australia New Zealand Food Standards Code are varied by inserting, following subclause 3(3) –

Editorial note:

Methods of analysis…

Comment: NZFSA considers this change is too significant for this Proposal and recommends that the proposed change to Standard 1.6.1 is dealt with independently to this Proposal. NZFSA considers however that there are a number of important points to raise in regard to the proposed editorial amendment.

NZFSA previously supported changes to the FSC enabling the use of appropriately validated microbiological methods in lieu of previously mandated Australia or New Zealand Standard Methods. NZFSA continues to support this policy.

NZFSA understands that FSANZ justifiably wishes to shift the statement of allowable methods from the body of the FSC to an editorial note; in effect changing the requirements from “law” to “guidelines” only. Removing the requirement from law effectively removes controls designed to prevent the use of methods not validated for the matrix under analysis, and consequently reduces the ability of regulators to prosecute those that choose to use inadequately validated methods. NZFSA cannot support such a move.

NZFSA’s concern would be eliminated by a simple requirement for laboratories carrying out tests for the FSC to be accredited to ISO 17025 (NATA and IANZ), which requires methods to be appropriately validated. NZFSA is currently not aware of such a requirement in the FSC.

In addition, NZFSA believes that any method that is appropriately validated for a matrix should be allowable for an analysis. A hierarchy based on presence or absence of an Australia or New Zealand standard is not necessary. Appropriate validation deems all methods equal.

NZFSA recommends insertion into the FSC of a requirement that laboratories testing compliance under Standard 1.6.1 be accredited to ISO 17025. If inserted, then NZFSA would support the following statement as an “Editorial note: Methods of analysis” following subclause 3(3) of Standard 1.6.1:

‘As a guide for compliance and enforcement purposes, food analysts should consider any appropriately validated applicable method of analysis, e.g. the latest  Australian or New Zealand Standard Method of Analysis, the latest  ISO or AOAC International Method of Analysis, or a method of analysis validated according to internationally accepted procedures.’

[17] [17.4] omitting the Editorial note following clause 11, substituting –

Editorial note:

Clause 11 applies…New Zealand Food (Prescribed Foods) Standard 2007 and associated BSE Country Categorisation Measure.

Comment: NZFSA recommends changing ‘associated BSE Country Categorisation Measure’ to ‘associated import requirements’.

[18] [18.1] omitting the Editorial note following clause 1, substituting –

Editorial note:

In New Zealand…

1. Scientific names of fish....Animal Products (Specifications for Products Intended for Human Consumption) Notice 2005…

2. Approved Scientific... New Zealand Food Safety website…

Comment: NZFSA recommends amending the year of ‘2005’ to ‘2004’ and changing ‘New Zealand Food Safety website’ to New Zealand Food Safety Authority website’ to make the statement accurate.

[31] [31.2] inserting, following the existing Editorial note after clause 4 –

Editorial note:

An example of a geographical indication is…by storage in wood for at least two years.

Comment - New Zealand has considerable concerns with the Proposal to add an Editorial note clarifying the effect of subclause 4(2) of Standard 2.7.5. The proposed Editorial note gives Scotch Whisky as an example of a geographical indication and links the definition of Scotch Whisky directly to the relevant UK legislation.

New Zealand has considerable concerns relating to both the process of adopting the proposed Editorial note and the substance of the variation. As such New Zealand requests that the proposed variation be withdrawn from the Proposal to allow proper consideration of our concerns as set out below.

Process Concerns

New Zealand does not agree that the proposed Editorial note is a minor variation, comparable to other issues dealt with in the Proposal, and contends it is not suitable to be adopted through the P1001 Omnibus.

We recall that Standard 2.7.5 reflects a compromise reached through negotiation between the Australian and New Zealand Governments in 2000 and again in 2002. As a result of those discussions, the New Zealand Government made concessions on the language in the FSC in order to accommodate the needs of the Australian (Federal) Government.  The outcome therefore reflected a delicate balance of interest. We have not seen any information that justifies reopening that delicate balance, nor information that identifies the problem the proposal is intended to address.

Substantive Concerns

New Zealand acknowledges that while the variation is only an “Editorial note”, in practice it would have the effect of expanding the requirements for Scotch Whisky currently enshrined in the Standard by going beyond a specific reference to laws in relation to alcohol content. 

The New Zealand Government would not want to accept automatically that UK legislation/regulations should define Scotch Whisky for the purposes of the FSC. The UK legislation/regulations could be changed at any time, which would leave us with no option but to interpret Australian/New Zealand law in accordance with the new UK legislation. New Zealand has real concerns with this “extra-territorial” approach to rule/standard setting.

Further, New Zealand has compelling trade policy reasons for ensuring that we do not implicitly accept, without proper consideration under the Geographical Indications (Wines and Spirits) Registration Act 2006 (“the GI Act”), that Scotch Whisky is a geographical indication.  The proposed Editorial note may have the effect of circumventing processes set out in existing legislation and the GI Act. New Zealand presently has common law and regulatory systems to deal with the misuse of legitimate geographic indications, the use of which may be affected in an ad hoc way by the addition of this Editorial note. In addition, once it has been implemented, the GI Act will provide processes for New Zealand officials to assess the eligibility of terms for registration as geographical indications (including whether terms proposed for registration meet the definition of a geographical indication). The Editorial note, as drafted, suggests that the New Zealand Government automatically accepts that Scotch Whisky is a geographical indication for the purposes of the GI Act, without it having been subject to the provisions and procedures envisaged in the GI Act.

We are also concerned about the precedent set by the proposed Editorial note. Will FSANZ be seeking to incorporate other European geographical indications in joint standards, perhaps through reference to other European legislation, in the future? The New Zealand Government would have significant trade policy concerns about further development of standards in this regard.

For all these reasons, New Zealand does not agree that the proposed Editorial note is a minor variation that should be subject to expedited procedures as set out in Section 66(1) of the Food Standards Australia New Zealand Act 1991. It is certainly not of the same order as the illustrative list of proposals that may be approved under the expedited procedures as set out in the Editorial note to that Section, i.e. corrections to typographical errors or references to other documents.  As such it differs significantly from the other matters addressed in this Proposal, and should not be addressed in that context.

New Zealand would welcome the opportunity to discuss the specific issues with FSANZ on our concerns as set out above. As noted earlier, we consider the proposed Editorial note should be removed from this Proposal.

3. Attachment 3 Proposed Amendments to the Code

• Standard 1.1.1 – Preliminary Provisions – Application, Interpretation and General Prohibitions

Comment: Please refer to comments made earlier in this submission in 1. Attachment 1 Draft Variations to the Australia New Zealand Food Standards Code: [1] [1.1].

• Standard 1.3.3 - Processing Aids

Solution: Amend spelling of ‘quaternized” to “quarternised”.

Comment: We understand the correct spelling is to be “quaternised”.

• Standard 1.3.4 – Identity and Purity

Comment: Please refer to comments made earlier in this submission in 1. Attachment 1 Draft Variations to the Australia New Zealand Food Standards Code: [9] [9.1].

• Standard 1.6.1 – Microbiological Limits for Food

Comment: Please refer to comments made earlier in this submission in 1. Attachment 1 Draft Variations to the Australia New Zealand Food Standards Code: [13] [13.1] and 2. Attachment 2 Draft Variations to the Editorial Notes in the Australia New Zealand Food Standards Code: [14].

• Standard 2.7.5 - Spirits

Comment: Please refer to comments made earlier in this submission in 2. Attachment 2 Draft Variations to the Editorial Notes in the Australia New Zealand Food Standards Code: [31] [31.2].

Yours sincerely