Does the new country of origin labelling apply to inner packs?
Does
the new country of origin labelling apply to inner packs?
By Charles Fisher (FoodLegal Principal)
© Lawmedia Pty Ltd, May 2018
The
new Country of Origin Food Labelling Information Standard takes mandatory
effect as of 1 July 2018. As with
any new piece of legislation, there any many concerns and uncertainties as to
how the Information Standard will be interpreted and enforced. However, this
article does not tackle a grey area but rather a regulatory issue that appears
to have been forgotten by the Department of Industry
in drafting the Standard and currently ignored by the ACCC in guiding the food
industry to achieve compliance. Namely: does the new
country of origin labelling apply to inner packs?
What
is an inner pack for food labelling purposes?
Standard
1.2.1 of the Australia New Zealand Food Standards Code (the Food
Standards Code) details when a food product must “bear a label”
or not and the extent of the information that must be included in said label.
This
Standard also includes a number of scenarios where products are exempt from “bearing a label”, even
though the products may be packaged. It is important to note that the Food
Standards Code defines a “label” separately to the “package” of a product. Having
to “bear a label”
is the obligation on a product to declare all the information prescribed by the
Food Standards Code and applies whether or not a product is
packaged (as unpackaged foods may have to declare the information
required to go on a label through some other means).
For food
products that are sold at a retail level (we note that
what constitutes retail sale is not defined in the Code), common exemptions
from having to “bear
a label” include:
- Products made and packaged on
the premises from which it is sold (a common food service exemption);
- Products packaged in the
presence of the purchaser (common takeaway and delicatessen exemption); and
- Products that are delivered packaged and ready for consumption at the
express order of the purchaser (the pizza delivery exemption).
However,
pertinently for this article, there is no exemption from inner packs
from “bearing a label”. This is because the intention of the Food Standards
Code is not for inner packs to be absent of any mandatory information;
but rather for inner packs to be required to declare less information that
would be required for outer packs.
Section
1.2.1-6(3) states that:
If the food for sale is sold
in packaging that includes individual packages for servings that are intended
to be used separately (individual portion packs), but which:
(a) are not designed for individual sale; and
(b) have a surface area of 30 cm2 or
greater;
then the
individual portion pack is also required to *bear a label, with the information
referred to in subsection 1.2.1—8(3).
From the above, we can see that inner
packs (named individual portion packs) are required by
the Food Standards Code to bear a label detailing allergen information if they
have a surface area of 30cm2 or more. If they have a surface area of
less than 30cm2, there is no obligation for them to bear a label.
The important legal distinction to note at this point is that inner pack above
a certain surface area still legally must “bear a label”, even if it is only to
declare allergens.
This limited labelling obligation clearly
exists to protect consumer safety in relation to products whose outer packaging
may have been discarded. There is no reason for any
other consumer protection labelling to be on inner packs as the purchasing
decision has already been made. This means that under
the previous country of origin labelling regime created under Standard 1.2.11
of the Food Standards Code, there was no obligation to declare the
country of origin on inner packs.
The question this article seeks to address
is whether that legal situation has now changed.
When
does the new Information Standard apply?
The new Country
of Origin Food Labelling Information Standard (the new Information
Standard) is an interesting piece of legislation. Unlike the previous
country of origin labelling regime for food, it is not within the Food
Standards Code. Instead, it forms part of the Competition & Consumer Act
and Australian Consumer Law. As an information standard, it has the
weight of law but did not have to go through Parliament. Instead, it was created by the Department of Industry as delegated
legislation. This change also means that food regulators no longer enforce this
mandatory piece of food labelling. Instead, it has become the complete
responsibility of the Australian Competition and Consumer Commission (ACCC)
to enforce.
Notwithstanding
the above, the new Information Standard does include a number of references and
definitions from the Food Standards Code.
The
provisions for when food products are exempt from having to declare the country
of origin despite being packaged and sold retail are very similar to the
exemptions from having to “bear a label” mentioned above.
However,
there is no corresponding or additional exemption from country of origin
labelling for inner packs or individual portion packs.
Strictly
speaking, the obligation to declare the country of origin on the pack of food
sold at retail applies when that products “bears a
label” as defined in the Food Standards Code. As noted above, inner
packs/individual portion packs with a surface area greater than 30cm2 are
required under the Food Standards Code to “bear a label”.
Once you
identify that a product must “bear a label”, the new Information Standard then requires that any “package” must bear a label that makes the
country of origin declaration required by the Information Standard for that
product.
“Package”
is defined differently in the new Information Standard
than it is in the Food Standards Code. In the Dictionary of the new Information
Standard, “package” is defined as “any container or wrapper in or by which
food for sale is wholly or partly encased, covered, enclosed, contained or
packaged; and - if the food is carried or sold or intended to be carried in
sold in more than one package - includes each package” [Emphasis
added].
Given
that:
- Under the Food Standards
Code, many inner packs must “bear a label”; and
- The obligation under the new
Information Standard to declare a country of origin applies to each package
a product is in; then
it is clear that the effect of
the new Information Standard (if not its intention) is to require inner
packs to also declare the country of origin.
As inner
packs are not mentioned at all in the new Information Standard, this obligation
appears to apply whether the inner pack is visible or not at the point of
purchase - but does not apply to inner packs with a surface area less than 30cm2
(as such packs are not required to “bear a label”).
To make
matters worse, the ACCC guide to assist industry in achieving compliance makes no
mention of inner packs or individual portion packs at all (at the time of
publishing)*.
What
is going to happen?
If the
ACCC were to adopt this strict interpretation, every single product that has
inner packs that did not previously have to declare a country of origin would
have to be re-labelled to achieve compliance (as well
as the outer packs).
However,
this absence of exemptions and guidance appears to be more of an oversight on
behalf of the Department of Industry and the ACCC, rather than an intentional
change to the law.
The ideal
outcome would be for the Department of Industry to rectify its omission and
create an exemption for all inner packs not meant for individual sale with
compliant outer packs (regardless of the surface area of the inner packs).
If the
Department of Industry were to fail in this regard, the ACCC could
exercise regulatory discretion and not prosecute the many food companies that
would be non-compliant post 1 July 2018. However, relying on regulatory
discretion is not always best practice for industry, especially when the
legislation is as clear as it is. What would give industry more confidence
moving forward (and be the cheapest option for government agencies) would be
for the ACCC guide to be amended to clearly state that
the ACCC will not be prosecuting inner packs that do not declare their country
of origin when the outer packs compliantly do so.
*This
article was written on 7 May 2018 and published in the May
2018 issue of FoodLegal Bulletin. This is general
information rather than legal advice and is current as of 7 May 2018. We
therefore recommend you seek legal advice for your particular circumstances if
you want to rely on advice or information to be a basis for any commercial
decision-making by you or your business.
This is general information rather than legal advice and is current as of 30 Oct 2021. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.