Blewett Panel's Report: A blueprint for the future of food labelling in Australia
By Joe Lederman and Charles Fisher
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, February 2011
On 28 January 2011, the long-awaited comprehensive Report by the Blewett Review of Food Labelling Law and Policy in Australia and New Zealand was publicly released. It offers a blueprint for a new food labelling regime in Australia. Considering its unique coverage of many contemporary controversies in food labelling, this Report may be worthy of scrutiny by governments, food corporations and consumer groups not only in Australia, but around the world. For example, what the Report says about the future of front-of-pack labelling, country of origin labelling and health claims for Australia and New Zealand would be relevant to similar discussion throughout the European Union, the United States and elsewhere. This article outlines some key issues considered by the Blewett Report. FoodLegal will be running a special half-day Symposium in Sydney on 28 March 2011 that will help provide the answers that food companies will need to know concerning the implications of the Report. Many more issues will be covered in depth by our top line panel of speakers.
The Review was commissioned by the Australian Federal government following strong consumer and business expressions of dissatisfaction and political pressure throughout Australia for a reform of food labelling law over a variety of issues.
The Review, undertaken by a Panel of 4 experts headed by Dr Neal Blewett, could expedite sudden, major changes in food labelling laws and policies.
Support for co-regulation
The Panel’s approach in the Review Report has drawn upon various pre-existing food regulatory principles, such as recognition that government intervention is warranted for matters of food safety and preventative health (such as diet-related health issues, alcohol and mandatory fortification of foods) and new technology (for example, the Panel declared it a matter of urgency that a Food Standard be developed to regulate use of nanotechnology in food).
What was quite interesting was the Panel’s support and recognition of industry’s role in defining “consumer values” and the recognition by the Panel of various benefits from a self-regulatory approach. These “consumer values” could be used to clarify some of the more controversial food descriptors that are used in the market.
The Panel supported the development and recognition of more industry Codes of Practice, product certification schemes, Australian Standards (AS) and International Standards Organisation (ISO) Standards, beyond the mandatory food standards of the Australia New Zealand Food Standards Code. The interaction of mandatory standards with greater government recognition of what have been private or voluntary standards is an interesting development.
Systemic Failure Caused by Prescriptive Definition
The Panel recommended that legally prescriptive, binding definitions be developed if requested by industry or where there is a systemic failure to provide accurate and consistent information to consumers. The Panel was of the opinion that the existing Country of Origin labelling scheme in Australia was a systemic failure because of prescriptive government intervention. For example, consumer confusion has been created around claims such as “Made in Australia” because the prescriptive statutory criteria for meeting this claim did not match consumer understanding of the words as they apply to food.
The Report demanded that labelling standards and laws be enforced with priority equal in ranking to enforcement of other aspects of food law (recognising that food law enforcement currently focuses far more on food safety than food labelling).
The Report also declared that current use of trade marks to make claims that are prohibited by the Australia New Zealand Food Standards Code is an “unscrupulous” practice by food companies. It could well be that future trade mark applications will be more deeply scrutinised for non-compliance with the Food Standards Code (see our FoodLegal Bulletin article March 2010 issue foreshadowing additional legal risks in this area).
The Panel recommended that State and Territory enforcement bodies be granted additional enforcement powers. The Report specifically refers to two companies being compelled to give court-enforceable undertakings, noting that this has already been a successful enforcement tool used by the ACCC (see also our previous September 2008 FoodLegal Bulletin article “Pre-emptive strings to the ACCC’s bow”).
A new bureaucracy
The Report calls for an increase of monitoring, research, education and information dissemination than the current system of Australia’s food regulatory system, and proposes the creation of new government bodies. The recommended creation of a Food Labelling Bureau would include provision of an advisory service, a complaints clearinghouse, ongoing consumer research, labelling compliance monitoring, and various other functions.
In FoodLegal’s view, it will be important for any new structures to avoid any overlap with various roles that are currently performed by other bodies such as the Food Regulation Standing Committee and the Implementation Subcommittee. FoodLegal is aware of preparatory steps for a centralised interpretative service, originally scheduled to commence on 1 July 2011.
It is unlikely that many advisory issues could be addressed fully by a government agency, mainly because of conflicts of interest and proprietary IP protection issues, as food companies need to be mindful of the importance of maintaining their own competitive marketing advantages – all of which would be difficult if referring everything to a centralised government agency.
It will also be important for food companies to understand the functions of each new body and to whom each body will be accountable.
Examples of recommended changes to food labelling law
This Report will result in a number of significant and wide-ranging changes to Australia’s current food labelling obligations, such as (amongst others):
- A complete change to the requirements in relation to Country of Origin declarations;
- The introduction of a multiple traffic light, front of labelling scheme that could be mandatory in certain circumstances;
- Mandatory nutritional declarations for food products sold at “chain fast food outlets”;
- Mandatory health warnings and nutritional declarations for alcoholic beverages.
FoodLegal Symposium of Top Speakers to consider the Report and its impact on food businesses
FoodLegal will be running a Symposium at The Menzies Hotel in Sydney on the morning of Monday 28 March 2011. Pre-booking will be essential. Click here to register. Heading up the panel will be a member of the Blewett Review Panel as well as representatives of Australia’s leading industry and consumer groups, academia, government, and FoodLegal experts. The practical questions to be addressed will include:
What can’t you do that you might have been doing?
What changes in labelling practice will you need to be more mindful of?
What opportunities are there for industry?
What will be the new increased risks of non-compliance?
This is general information rather than legal advice and is current as of 11 Feb 2011. 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.