Comprehensive review of all national labelling laws announced

By Joe Lederman
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, November 2008


On 24 October 2008, the Australia and New Zealand Food Regulation Ministerial Council publicly announced a comprehensive review of food labelling law and policy.

The Ministerial Council Communiqué released on 24 October 2008 states:

The meeting agreed in principle to commission an independent, comprehensive review of food labelling law and policy. The review will be undertaken by an independent expert panel. The expert panel will comprise prominent individuals appointed by the Ministerial Council who collectively possess knowledge and expertise in the fields of public health, regulatory, economics/public policy, law and consumer behaviour and business. The review is to be chaired by an independent public policy expert.

It appears this review had been called for by Victorian Health Minister Daniel Andrews, who issued a Media Release in similar terms to the abovementioned Ministerial Council Communiqué earlier on the same day.

The Victorian Health Minister’s call for review followed the release of a report on food regulation in Victoria issued by the government body known as the Victorian Competition and Efficiency Commission’s (VCEC). The VCEC September 2007 report, called Simplifying the Menu: Food Regulation in Victoria, noted that the Victorian regime is similar to the system applicable in all Australian States and Territories (as enacted through their Food Acts under the Food Regulation Agreement) and VCEC made several recommendations for changing the national food regulatory framework.

The VCEC Report’s national recommendations

There was strong criticism in the VCEC Report of the national labelling system and VCEC took the view that compliance with the Australia New Zealand Food Standards Code was placing a heavy burden on industry without sufficient evidence that consumers were better informed as a result (see the following at Page 151 of the VCEC Report):

The impact of food standards on industry incentives to develop labelling valued by consumers—research by FSANZ (2003a) suggests that current labelling requirements have had little influence on consumer choices. The food sector also considered that compliance is excessively costly, particularly when labelling standards change.

The VCEC Report also cited examples where either Ministerial Council Policy or implementation of policy by Food Standards Australia New Zealand (FSANZ) had failed to identify areas of consumer concern. The VCEC Report mentioned, as an example, the creation and development of Standard 1.2.11 for Country of Origin labelling despite the later Banks Review (2006) discovering that the Standard had resulted in a net cost to the community. The VCEC Report also questioned the necessity of developing mandatory standards where industry voluntary standards already existed, such as in relation to the making of health claims on labels or for front-of-pack labelling. The following is quoted from Page 149 of the VCEC Report:

These examples illustrate that nationally agreed best practice approaches to developing national food standards are not being followed consistently by ANZFRMC and FSANZ. A major shortcoming is that the range of policy options considered is too narrow, suggesting that a more strategic forum such as COAG may be better placed to assess or oversight [sic] policy responses to national public health issues.

Previous reviews of Australia’s Food Regulation System

The shortcomings and burdens imposed on Australia’s food industry arising from labelling laws and enforcement have been acknowledged or noted on previous occasions by governments, several regulatory agencies in their reports and by industry representative bodies. There have been numerous reports commissioned to explore the extent of regulation and questioning regulatory burdens.

In January 2007, Peter McGauran and Christopher Pyne (the then Federal Ministers of Agriculture, Fisheries and Forestry, and of Health and Ageing respectively) announced the Bethwaite Review, a specific review of Australia’s food regulation system. The Draft Report for the Bethwaite Review was due for public release in January 2008. It was never released.

The reasons for the non-release of the Bethwaite Review were never clarified by the new Federal government. However, Senator McLucas, who is the current chairperson of the Australia and New Zealand Food Regulation Ministerial Council, as the representative of the current Commonwealth government, announced on 28 September 2008 that the Bethwaite Review would be referred to the Council of Australian Government (COAG)’s Business Regulation and Competition Working Group. One newspaper has meanwhile quoted Senator McLucas as saying that the report was “not worth publishing” (see The Australian, 18 October 2008).

What did Senator McLucas mean? Will the Federal government accept the need for greater food law deregulation, which seems to have been the mantra of those who commissioned the Bethwaite Review? Possibly, the answer is “Yes”, but maybe the language and tone of the Bethwaite Report may have been inappropriate and untimely in light of public concerns being widely expressed over the lack of adequate food regulation and especially the lack of testing for compliance on food imports from places such as China. Will the China melamine dairy products scandal and Australian consumer concerns over lack of sufficient food regulation enforcement in Australia have any impact? Perhaps not, unless consumer groups continue to apply more pressure at Ministerial Council level across all governments.

There is a clue to what course the current government might wish to take by the fact that the Bethwaite Review report is to be referred to COAG’s Business Regulation and Competition Working Group. The latter is weighted towards greater free trade and deregulation, and would likely be inclined favourably towards the views that were expressed by VCEC in its Report. Furthermore, these views would remain fairly consistent with the Peter Costello commissioned Productivity Commission’s Review of Australia’s Consumer Policy Framework. The Productivity Commission Review was actually conducted at the same time as the Bethwaite Review and its findings were released in May 2008.

The Productivity Commission’s Review, while not focused specifically on the food industry, highlighted the number of “overlapping” Federal, State and Territory consumer policy laws and regulations and was recommending that there be only one generic regulatory regime for all consumer products. In terms of the food industry, we believe the Productivity Commission report underestimated the public health and safety issues pertaining to food in particular. To read FoodLegal Bulletin’s analysis of the Productivity Commission Review, see our article “Productivity Commission Report Impacts on Future Food Law Enforcement and Safety” in the December 2007 issue of FoodLegal Bulletin.

Hints of the future

The new food labelling review announced by the Ministerial Council Communiqué of 24 October 2008 appears to be limited solely to food labelling laws. These exist in the Australia New Zealand Food Standards Code and other industry specific legislation, and the VCEC Report identified areas of concern. Hence this might explain why it was the Victorian Minister who was seen to be initiating the move towards a consistent national policy. Arguably, there might even be a national agenda to adopt the new Victorian approach proffered by the VCEC Report. The VCEC Report specifically identified the following problems:

  • “difficulties consumers have in understanding and using information on labels”;
  • “the accuracy and truthfulness of labelling”; and
  • “a lack of, or inconsistent, enforcement.”

Given the leading role of the VCEC Report, its further recommendations for deregulation but also its call for more efficient and broader approach to enforcement of food laws across Australia, it may be a good outcome for the national approach to adopt many of the VCEC Report’s suggestions. The Federal Small Business Minister Dr Craig Emerson, who is also the Minister assisting the Finance Minister on Deregulation, has also shown an interest in the food area, lending weight to the presumption that the Rudd Federal government remains committed to deregulation.

Senator McLucas might well clarify the position in an address she will be making to the forthcoming Food Regulation and Labelling Conference in Sydney on 17 of November 2008. The editor of FoodLegal Bulletin will be speaking immediately after Senator McLucas at that same conference.

This is general information rather than legal advice and is current as of 12 Dec 2015. 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.