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FSANZ introduces its Code Interpretation Service

Published: 17 Aug 2011

By Joe Lederman 

FoodLegal Lawyers and Consultants

© Lawmedia Pty Ltd, August 2011

On 6 June 2011, Food Standards Australia New Zealand (FSANZ) released its “Code Interpretation Service – Cost Recovery Consultation Paper”, to explain FSANZ’s new Code Interpretation Service. This follows an earlier policy direction from the Australia and New Zealand Food Regulation Ministerial Council for FSANZ to provide an interpretation service. This article explores the workings and unresolved issues about this Code Interpretation Service.

 

Background giving rise to the introduction of the Code Interpretation Service

In December 2009, the Council of Australian Governments (COAG) agreed to take steps to achieve nationally consistent food regulation and develop a system for streamlining food regulatory interpretation.  This was followed up by an Intergovernmental Agreement, released in February 2011, outlining the establishment of a system under which any person may apply to FSANZ for interpretive advice on Chapters 1 and 2 of the Food Standards Code.  Any advice to be given by FSANZ was required also to be formulated in consultation with Australian State and Territory food regulators, so that greater uniformity could apply throughout all States and Territories.

 

An extension of this Code Interpretation Service to cover other chapters of the Food Standards Code would also be considered in a review to be conducted in 2013.

 

Code Interpretation Service in detail

  1. Under the framework set out by the Intergovernmental Agreement, the service is meant to be publicly transparent and is required to operate on a cost recovery basis.
  1. In the provision of its code interpretation advice, FSANZ is to notify and consult with other State and Territory regulatory agencies, and also to engage external legal providers for legal advice on its code interpretation. Therefore, the fees charged for this interpretative advisory service will consist of two components:
  • an administrative fee of “at least $3105” for FSANZ’s own assessment of the application and coordination with State and Territory regulators plus;
  • costs of external legal advice sought by FSANZ in the process of assessing the application. 
  1. FSANZ has stated specifically in its Consultation Paper that it will not provide advice where the applicant for advice:
    1. seeks advice about compliance; or
    2. relates to a specific product; or
    3. is otherwise specific only to the applicant; or
    4. relates to a matter about which there is current enforcement action  

 

Implications of the Code Interpretation Service

The establishment of the Code Interpretation Service, on the one hand, could (in theory) promote greater certainty and consistency in the regulatory approaches taken by FSANZ as well as State and Territory regulatory enforcement agencies. However, anecdotally, food companies appear to recognise there are various practical difficulties in utilising or gaining additional value from such a service.  

As the Consultation Paper suggests, any advice provided by FSANZ, would necessarily be generic. FSANZ will not provide advice that relates to a specific product or is otherwise specific only to the applicant. This does not guarantee that the applicant will get the answer they want for their business.

In relation to the costs, the applicant will not have any control over the external legal costs incurred by FSANZ, nor will it have any input into the legal advice that FSANZ receives in relation to the application.

Furthermore, the open and transparent nature of the process could work to the applicant’s detriment, as any applicant will effectively flag their intentions to their competitors merely by commencing the application process, as well as bearing the whole of the administrative and external legal costs involved in assessing the application. Furthermore, the interpretive service is not in a position to provide the sort of advice or legal risk assessments which can only be provided in the conventional legal consultation process. The new FSANZ service does not appear to attract the privilege and confidentiality that could attach to conventional legal advice from a law firm, as FSANZ is not a law firm. Readers of this FoodLegal Bulletin can read a separate article that explains the use of legal professional privilege for the protection of food companies.