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Special Treatment: The inconsistency of food laws applying to importers or domestic producers

Published: 9 Nov 2009

By Joe Lederman
FoodLegal Lawyers and Consultants
 ©Lawmedia Pty Ltd, November 2009

The Australian government recently lifted a 13-year-old ban on beef imports from countries which had previously experienced an outbreak of mad cow disease. This article examines the question of when food safety laws can discriminate between food importers and domestic producers in the same produce category, such as in relation to unpasteurised cheeses.

Ban on foreign beef

On October 2009, Australia’s Federal Government announced that it would relax the ban on beef imports from countries that had been affected by outbreaks of mad cow disease (bovine spongiform encephalopathy, or BSE) from March 2010. The restriction had previously prevented beef being imported into Australia from Canada, the USA, the UK and New Zealand from entering the Australian market.

The announcement of the abolition of the ban was accompanied by a declaration from Australia’s chief medical officer that there was a negligible risk to humans posed by consuming beef from these previously affected regions. 

On the other hand, the New South Wales rural-based Liberal Senator Bill Heffernan was quoted on the Australian Broadcasting Corporation’s news service as saying “We will have our status, which is unique, reduced to the same status as those countries which have BSE. We will lose market share for sure.” The president of the Cattle Council of Australia, Greg Brown, doubted there would be any ‘huge flood’ of imported beef into Australia, and suggested that Australia had more to gain by playing a fairer game in international trade.

The question of foreign beef imports does highlight a broader issue of when different law enforcement criteria (in this case under intentional trade treaty obligations), afford imported produce a different legal status in Australia compared with local produce. This issue has also been in focus in recent years in relation to the laws for imported unpasteurised cheese products.

The importation of unpasteurised cheese

Historically, unpasteurised milk or food products derived from unpasteurised milk have been barred from sale in Australia by the Australian New Zealand Food Standards Code (the Food Standards Code) because they are considered to present an unacceptable health risk to the Australian public. 

Following applications to Australia’s Food Standards Authority, Food Standards Australia New Zealand (FSANZ), some foreign unpasteurised chesses were approved on a case-by-case basis. Three Swiss cheeses, and then the French Roquefort cheese (following an application by the French Government) were approved and granted exceptions to the general prohibition on unpasteurised cheese, subject to certain conditions under Standard 4.2.4.A. The details of these FSANZ reports are available on the following links http://www.foodstandards.gov.au/thecode/primaryproductionprocessingstandards/dairyrawmilkproducts/; http://www.foodstandards.gov.au/_srcfiles/A357%20FAR.pdf

While the Food Standards Code now allows these cheeses to be imported and sold in Australia, similar types of cheese are not allowed to be domestically produced. This is clearly a case where overseas considerations have gained preferential treatment over the laws governing prospective domestic produce for similar products.

In August 2008, FSANZ released a Discussion Paper which invited submissions for its proposed review of domestic dairy processing standards (P1007). The scope of the review included an examination of the inconsistent requirements of domestic and imported products, specifically mentioning the Swiss cheeses and Roquefort which were exempt from pasteurisation.

FSANZ has stated that its endorsement of these non-Australian cheeses had been based on an assessment of the unique production procedures for each such cheese, and the previous applications had not allowed for a more general safety assessment that could apply to both imported and domestically produced cheeses (Refer to P1007 Discussion Paper). FSANZ stated in the Discussion Paper that Roquefort was approved after inspection of the French processes resulted in the conclusions that it posed a low risk to public health and safety and that the production of raw milk Swiss cheeses similarly achieved an ‘equivalent’ level of safety as that of a pasteurised product.

It remains to be seen whether additional FSANZ Reports to follow the future responses to the P1007 Discussion Paper will pave the way for domestic production of raw milk products, or new imports of additional raw milk products. The Discussion Paper hints at previous submissions to FSANZ that “Australia may not...currently have the necessary systems and controls required for such products”, compared with tried and tested European manufacturers who have a long history of raw milk production. Interestingly, New Zealand saw fit to exempt itself from these prohibitions in the bi-national Australia New Zealand Food Standards Code and has allowed domestic production of raw milk cheeses in New Zealand. See http://www.beehive.govt.nz/release/raw+milk+cheeses+get+green+light.

Conclusions

If the current inconsistencies in the Food Standards Code (applying in Australia only) regarding non-pasteurised cheese products are not overturned as a result of FSANZ’s review, Australian producers will remain discriminated against. It would be extraordinary if a leading dairy producing country such as Australia is considered by its own food regulators to have inadequate dairy safety monitoring processes in place to protect the general public when other countries and their regulators have no such problem. Moreover, the Australian regulatory authorities accept that there are satisfactory standards overseas that can be met for products to be consumed in Australia. Heated debate which has surrounded both the issue of raw milk cheeses and imported beef restrictions shows that many issues clothed in the language of food safety are not isolated from wider considerations of trade, with wider impact for Australian food producers.

Furthermore, the example of cheese made from unpasteurised milk shows how food products that may not comply with the Food Standards Code may nevertheless legally enter the country - granting importers exclusive markets that domestic producers cannot access within their own country even when their own industry is a world leader in that particular industry.