Why Australian food companies need to consult with government on international food standards
By Joe Lederman The CEO of Australia’s food agency, Food Standards Australia New Zealand (‘FSANZ’), has reiterated (in a recent address in Sydney) his desire to “harmonize” the Australia New Zealand Food Standards Code with the international Codex Alimentarius. This article explores whether the standards in Codex Alimentarius really constitute “international food standards”. The writer believes that misinterpretation of a Codex standard by Australian government officials at the Department of Agriculture, Fisheries and Forestry and FSANZ can lead to a situation that threatens Australian food businesses. What is Codex Alimentarius? The Codex Alimentarius Commission first came about in response to concerns expressed as early as the mid-1950s about the trends towards unregulated use of food additives (as stated in “Understanding the Codex Alimentarius”, Food and Agriculture Organization of the United Nations (2005), page 8): In 1955, the Joint FAO/WHO Expert Committee on Nutrition recorded that: “… the increasing, and sometimes insufficiently controlled, use of food additives has become a matter of public and administrative concern.” The process of meetings of international delegates which became known as the Codex Alimentarius Commission was formalised in resolutions adopted by both the Food and Agriculture Oganization of the United Nations (‘FAO’) in 1961 and the World Health Organization (‘WHO’) in 1963 as part of the Joint FAO/WHO Food Standards Programme. The purpose of the Codex Alimentarius Commission, as stated in Article 1 of the Statute, was to protect “the health of consumers and ensuring fair trade practices in the food trade”. What are the Australian legal requirements to comply with Codex Alimentarius? While it would be fair to say that the founding organizations, the FAO and WHO, were primarily concerned with protecting the health of consumers, the tenor and use of Codex rules shifted with trade globalisation in the 1980s and onwards. The World Trade Organization (‘WTO’) had been formed out of the General Agreement on Tariffs and Trade during the Uruguay Round of treaty negotiations which took place from 1984 to 1995. Australia became a member at the inception of the WTO on 1 January 1995. Member countries of the WTO are required through international treaties to consider the Codex Alimentarius standards and attempt to “harmonize” their food standards with the Codex Alimentarius. The two main treaties that now require members of the WTO to comply with the Codex Alimentarius are: For example, Paragraph 1 of Article 3 of the SPS Agreement states that: To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations... Paragraph 3 goes on to state that signatories of the SPS Agreement can set sanitary or phytosanitary measures that are stricter or result in a higher level of protection that those set in the Codex Alimentarius only “if there is a scientific justification” [emphasis added]. The Australian Federal Parliament passed legislation in 2000 mandating that Australia’s food standards-setting agency, now known as Food Standard Australia New Zealand (‘FSANZ’), must consider the standards in Codex Alimentarius when creating or varying food standards in the bi-national Australia New Zealand Food Standards Code (‘the Food Standards Code’). For example, Section 18 (2) of the Food Standards Australia New Zealand Act 1991 (Cth) (‘the FSANZ Act’) states: (2) In developing or reviewing food regulatory measures and variations of food regulatory measures, the Authority [i.e. FSANZ] must also have regard to the following: (a) the need for standards to be based on risk analysis using the best available scientific evidence; (b) the promotion of consistency between domestic and international food standards; (c) the desirability of an efficient and internationally competitive food industry; (d) the promotion of fair trading in food; (e) any written policy guidelines formulated by the [Ministerial] Council for the purposes of this paragraph and notified to the Authority [FSANZ]. The strictest standards permitted While a clear purpose of the food standards in the Codex Alimentarius is to protect the health of consumers, the legal mechanisms encouraging international compliance are trade treaties, not health treaties. For that reason, the FAO has stated (in “Understanding the Codex Alimentarius”, page 19): “The harmonization of food standards is generally viewed as contributing to the protection of consumer health and to the fullest possible facilitation of international trade.” Signatories to the TBT Agreement are prohibited from imposing technical regulations (such as food labelling standards or food compositional standards, all contained in the Australia New Zealand Food Standards Code) if they create “unnecessary obstacles to international trade” (Article 2, TBT Agreement). The TBT Agreement then goes on to permit signatories to set food standards that would be stricter than those found in the Codex Alimentarius only when Codex standards “would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued”. An individual country can only impose a tougher food standard that exceeds the requirements of Codex Alimentarius if it can be scientifically justified by reference to special circumstances particular to that country. Clearly, the basis of the negotiation for the international forum of countries that negotiates each international standard contained in the Codex Alimentarius is to set the toughest legally acceptable benchmark or guideline for WTO member countries – not necessarily to follow, but to view as the strictest level beyond which no individual country should legislate without scientific justification and a legitimate purpose. An example of when FSANZ has set a stricter standard than Codex In October 2008, the Australia and New Zealand Food Regulation Ministerial Council approved Proposal P1003 for mandatory fortification of the “salt in bread” with iodine (see Clause 5 of Standard 2.1.1). Yet, Codex Alimentarius has not set a standard requiring that all the bread made in the world use iodine-enriched salt. Accordingly, the measure adopted by FSANZ and the Ministerial Council is actually stricter than the international standard in the Codex Alimentarius and presents a technical barrier to trade that could be challenged in the World Trade Organization unless it can be scientifically justified. In the Approval Report for Proposal P1003, FSANZ established that Australia’s population was mildly iodine deficient and assessed this could result in potential adverse health consequences for a significant number of Australians. Therefore, there was a scientific justification for Australia to have a stricter standard than that offered by Codex Alimentarius (i.e. mandatory fortification over voluntary fortification) on the basis that it was demonstrated scientifically necessary for public health and safety in Australia. FSANZ also noted that the WHO recommended “Universal Salt Iodisation” to address iodine deficiency internationally, i.e. the fortification of all salt used in food being fortified with iodine. This would naturally present a much larger obstacle to international trade despite being more comprehensive as a way to deliver iodine to the population. The Approval Report for FSANZ’s own Proposal P1003 (to amend the Australia New Zealand Food Standards Code by inserting Clause 5 of Standard 2.1.1) stated on Page 22: [S]ignificant export and import issues would result, including increased costs, enforcement issues and trade restrictions that could potentially result in World Trade Organization (WTO) challenges… Therefore, when considering the best option to deliver iodine to the population, FSANZ deliberately chose as a food carrier a food that, by and large, was produced domestically and, therefore, would not have any significant impact on international food trade. When is harmonization necessary? As Australia is a member of the WTO, the Commonwealth government of Australia is under international treaty obligations not to permit any obstacles to international trade beyond the standards in Codex Alimentarius. One of the functions of FSANZ as listed in Section 13 of the FSANZ Act is “to promote consistency between standards in Australia and New Zealand with those used internationally, based on the best available scientific evidence”. However, it would be incorrect to assume that the requirements for “harmonization” under the WTO treaties and “consistency” under the FSANZ Act mean that FSANZ must take every standard in the Codex Alimentarius and simply import the same standard into the Food Standards Code. To do so would, in many cases, be legally unnecessary and irresponsibly acting against Australian food industry interests. As discussed above, the standards in Codex Alimentarius are meant to be the strictest standards a country can adopt without presenting a technical barrier to trade. Adopting food standards that are less strict than those in Codex Alimentarius therefore ought not to present any barrier to trade and hence not infringe Australia’s international obligations. Adopting similar standards but to a more permissive level by no means demonstrates a lesser concern for protection for public health and safety. There are many factors that need to be taken into account when developing food standards appropriate for the population of any given country and these can be different or vary entirely from nation to nation. These factors can include: national dietary patterns of food consumption, national food safety requirements, consumer expectations and perspectives in any country, and the processing needs or industrial needs that may be particular to different countries or their food industry participants. An example would be the labelling for some types of saturated fats or trans fats content. In many developing nations where there is a food shortage as opposed to an obesity epidemic, and where the dietary problem is not about eating saturated fats, the imposition of extra labelling requirements in the developing countries might be counter-productive to both the consumers and the food processors in that country, even if the Codex Alimentarius permits a country to label foods to identify such fats. Therefore, while Codex Alimentarius standards must be considered where relevant, the “harmonization” requirements do not oblige member nations to adopt the same wording or a particular strict standard prescribed in the Codex Alimentarius; “Harmonization” with Codex simply requires each nation not to exceed the Codex standard so as to create a barrier to international trade. The only disadvantage for a nation adopting less strict standards than Codex Alimentarius is when food suppliers wish to export their products to other jurisdictions and find that there are more stringent food standards in that jurisdiction. That is a problem only for the ignorant Australian exporter but does not impinge on free trade or importation of the food products that meet the more lenient standard applicable to Australia. An example of when “harmonization” can be counter-productive One example of where “harmonization” with Codex Alimentarius did not require matching the international standard is the recent FSANZ Approval Report for Proposal P1002 – Hydrocyanic Acid in Ready-to-Eat Cassava Chips. This Report (published in September 2008) endorsed a maximum level of 10mg/kg total hydrocyanic acid in Ready-to-Eat Cassava Chips. Let it be noted that cyanogenic glycosides (substances which have the potential to be broken down to hydrocyanic acid) occur naturally in over 2,600 plants. Other fresh foods (such as linseed, almonds, and stone fruits) and their processed derivatives have much higher levels of cyanogenic glycosides than sweet cassava. There were numerous other FSANZ failures in its assessment with this particular Proposal P1002 (such as: no consideration of any human studies of cyanide toxicity; failure to consult with Australian stakeholders on revised Risk Assessments; failure to undertake a thorough cost-benefit analysis; no endorsed testing method for hydrocyanic acid; no comparison with other foods for toxicity levels; etc.) However, one particular argument FSANZ raised in favour of this maximum level of 10mg/kg was: “the maximum level of 10 mg/kg is also consistent with the level in the international (Codex) standard for edible cassava flour (another processed cassava product for direct human consumption).” FSANZ did not mention that this Codex Alimentarius standard was developed as a global standard, to be applied in countries suffering from famine as much as in countries with a robust food supply. A maximum level of 10mg/kg of total hydrocyanic acid in cassava flour in the Codex Alimentarius standard was therefore designed to protect consumers in the most famished nations where the national diet is one in which cassava flour predominates. There are countries whose major staple is cassava and the average citizen does not consume adequate protein or sulphur in their daily diet that can prevent any harm arising from ingestion of the asserted toxic substance. Cyanogenic glycosides (which have the potential to be broken down to hydrocyanic acid) are known to pass straight through the intestinal tract in humans with adequate protein and sulphur in their diet. Applying a maximum level of 10mg/kg places an enormous burden on the long established Australian food processing industry. This is an example of when “harmonization” in the form of literalist adoption of a Codex threshold is actually inappropriate and counter-productive. Australia’s involvement in Codex The standards contained in the Codex Alimentarius are set through a consultative process similar to the method employed by FSANZ when setting standards in the Australia New Zealand Food Standards Code. Drafts of Codex standards are produced through committee process and then sent to all member countries for comment. Australia’s representatives to the Codex Alimentarius Commission are usually lead by representatives from the Federal Department of Agriculture, Fisheries and Forestry (‘DAFF’) or FSANZ, but can include delegates from any part of government, industry or non-government organizations. The reality is that stakeholder consultation in the Australian position on any Codex issue is usually only addressed irregularly at a Stakeholder Forum; and while some Australian food sectors (e.g. the dairy industry) may have strong input due to a pre-existing international presence, there is relatively poor liaison by FSANZ or DAFF delegates with many food industry sectors within Australia whose interests these Australian government delegates are supposed to represent. This is notwithstanding that the strategic objectives for Australia’s participation in Codex includes: Promote, within the Codex Alimentarius Commission, the development of food standards, guidelines and other recommendations based on the principle of sound scientific analysis and evidence, and involving a thorough review of all relevant information, so that the standards assure the food supply’s safety and quality. A call for more industry participation in Codex processes It is vital that Australian representatives to Codex ought to be briefed by Australian stakeholders and have a sufficient understanding of the processing requirements and dietary patterns of Australian consumers so that Australia does not end up adopting the strictest literal interpretation of a Codex standard or misunderstand the purpose of a Codex standard. It would also be possible to design a better, more informative notification system that would provide technical commentary to Australian stakeholders when other countries issue TBT and SPS notifications of when they have set food standards exceeding those in Codex Alimentarius, so that relevant Australian stakeholders are made more aware of what other laws may apply in relation to foods that are the same or similar to their own products. Conclusion The standards in Codex Alimentarius provide a guideline for food regulators in all countries, but their primary raison d’etre is to allow greater international trade. Countries are under no obligation to adopt Codex Alimentarius standards literally and thereby accept the harshest form of international standards. Countries are simply under an obligation not to enact harsher food standards than those in the Codex Alimentarius. Government departments and agencies, such as DAFF and FSANZ, must carefully re-evaluate their position in relation to Codex Alimentarius. Adopting international standards, without reflecting on whether the Australian industry or Australian consumers require such standards, can be both counter-productive for Australia’s longer term interest in a world of global food shortages, and an abdication of the role of Australian government representatives in such international forums.
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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.