Who is enforcing the laws to stop pesticide contamination of our berries, fruits and vegetables?
by Joe Lederman and John Gao © Lawmedia Pty Ltd, February 2008
Australian Food Lawyers and Consultants
The food laws set by Food Standards Australia New Zealand and enforced by State and Territory government enforcement agencies are supposed to protect consumers from excessive exposure to pesticide and veterinary chemical residues in foods. However, recent developments have raised questions about the level of enforcement of such laws . This article looks at the problems and the consequences for food suppliers.
An article published in CHOICE in January 2008, which released the results of studies conducted on the pesticide levels in strawberries, has raised concerns relating to the enforcement of the legal limits on levels of pesticides and veterinary chemicals in foods in Australia. The CHOICE study found that out of tests conducted on 31 samples of strawberries purchased at supermarkets and independent stores in Sydney, 3 samples contained pesticide levels above the legal Maximum Residue Limit while 17 samples shows traces of pesticides or fungicides.
How are pesticides and veterinary chemicals regulated?
The Australian Pesticides and Veterinary Medicines Authority (APVMA) is the government body that is responsible for the registration and assessment of pesticides and veterinary chemicals. In relation to food, the APVMA is responsible for the identification of possible pesticides and veterinary medicines in the food supply. The APVMA makes regular Applications to FSANZ for the introduction of new or amended Maximum Residue Limits (MRLs) for pesticides and veterinary medicines in particular food types.
MRLs are included in the Australia New Zealand Food Standards Code under Standard 1.4.2. MRLs are food type specific, for example, the limit for a particular chemical residue in strawberries may be different from the limit for the same chemical residue in tomatoes.
Who is enforcing the Standards?
Because the MRLs are in fact incorporated in a Food Standard (Food Standard 1.4.2), a breach of the limits is treated as breaching the Australia New Zealand Food Standards Code. Enforcement of MRLs is therefore the responsibility of the State and Territory food authorities or health departments, and also local councils. In most States and Territories, local councils have a responsibility for enforcement of the Australia New Zealand Food Standards Code as one of the compliance obligations under the respective Food Acts. In Victoria, local councils are the de facto food safety enforcers but have shown little or no interest to get involved in detection and enforcement of MRLs.
Where there are product safety concerns, the Australian Competition and Consumer Commission (the ACCC) also has powers under the Federal Trade Practices Act to recall a product. If a product containing high levels of chemical residues is the potential cause of actual harm to a consumer due to the chemical residue content, then the ACCC can act under the product liability provisions of the Trade Practices Act and can order a recall. Usually however, food recalls are initiated by the State authorities and coordinated through FSANZ. Liability may also arise out of tort law.
Lack of enforcement
On 15 February 2008, the APVMA advertised in newspapers called for “Expressions of Interest” to conduct an assessment of data collected by the APVMA on levels of pesticides and veterinary chemicals in foods and feeds. Technically, it is not the role of the APVMA to enforce the Food Standard in relation to pesticides and chemical residues in foods. The expression of interest advertisement creates the inference that the APVMA is collecting data on the levels of pesticides and veterinary chemicals in foods without as yet anyone at government level actually assessing the safety or legal compliance of the levels of pesticides and veterinary chemicals in foods.
The above example of pesticides and veterinary chemicals being found in strawberries in Australia is another example of the lack of enforcement. If detecting excessive pesticide and chemical residue levels is as simple as going to the shops and buying 31 samples of strawberries to find that almost 10% of the samples exceeded the limit, as CHOICE was able to do, one must seriously question why government enforcement bodies have not been conducting such monitoring.
Since the publication of the abovementioned article by CHOICE, news sources have reported that “Strawberries Australia has pledged to fund a laboratory to monitor produce from across the country, and to make the results public” (The Age newspaper, 4 February 2008, http://www.theage.com.au/news/national/strawberry-industry-vows-to-crack-down-on-use-of-pesticides/2008/02/03/1201973740387.html). When an industry body seeks to undertake to monitor the produce being supplied by its own members, this ought not to be a substitute for independent enforcement of the law. Delegating law enforcement to the supplier invites a situation where there may as well be no law at all.
It is important to note that even if a law aimed at protecting public safety, such as a Food Standard setting maximum pesticide residue levels in foods, is not being enforced, there is still a separate product liability issue for suppliers of such foods. If a consumer in fact suffers harm caused by excessive levels of pesticides or veterinary chemicals in food, there are still a number of legal remedies for consumers against the food suppliers. However, some of these legal remedies are circumscribed because a damages claim is not immediately apparent. It is repeated exposure of the consumer to excessive levels of pesticides and chemical residues that creates the danger rather than an immediate toxic reaction. The current laws do not present easy solutions for consumers where the damage is possibly likely to arise in the long term but with the harm being less apparent in the short term. If consumers cannot be adequately protected by civil action, they must depend on governments to fill this legal gap.
The CHOICE article on strawberries can be found at the CHOICE website.
This is general information rather than legal advice and is current as of 25 Feb 2008. 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.