Law inconsistency by APVMA hinders agricultural exports from Australia
The APVMA is the Australian government agency established in 1993 to centralise the registration of all agricultural and veterinary chemical products into the Australian marketplace.
One of the functions of the APVMA is to assess the level of chemical residues in agricultural products. Food Standards Australia New Zealand (FSANZ), which is the government agency responsible for setting food standards for the Australia New Zealand Food Standards Code (Food Standards Code), relies on the information from the APVMA to set chemical Maximum Residue Limits (MRLs) in foods, but only for Australia.
New Zealand maintains an independent regulatory regime for MRLs in New Zealand, and is not governed or bound by either the APVMA or the Food Standards Code in regard to MRLs for products consumed in New Zealand.
The APVMA has the functions and powers conferred upon it by the Agricultural and Veterinary Chemicals (Administration) Act 1992 and by the Agricultural and Veterinary Chemicals Code Act 1994 which has been adopted by the participating Australian jurisdictions.
In 2011, the APVMA lowered the Maximum Residue Limit for a dimethoate pesticide from 0.02 mg/kg/day to 0.001 mg/kg bw/day. The recent case mentioned above illustrates how this decision by the APVMA makes it particularly difficult for farmers to export product to countries with higher MRLs, even though the MRL could be perfectly acceptable in the destination country. This APVMA policy is contrary to the usual position that operates under the Food Act legislation of all the Australian States and Territories.
In its decision in relation to the Queensland tomato grower, the APVMA took the view that the APVMA has jurisdiction to block the export of the post-harvest tomatoes to New Zealand, despite the fact that they were intended for export to New Zealand, and despite the fact that the tomatoes carried a level of dimethoate which fell within the permitted MRL under the New Zealand law.
New Zealand not bound by Australian MRLs and AgVet Code
New Zealand has its own regulatory regime for agricultural chemicals. It is not governed by the AgVet Code applicable in Australia. In New Zealand, for example, the permitted MRL for dimethoate is 1 mg/kg. New Zealand is excluded from the operation of Standard 1.4.2 of the Food Standrads Code - the maximum residue limits for agricultural compounds are set out in the New Zealand Maximum Residue Limits Standard for Agricultural Compounds, issued under section 11C of the Food Act 1981 of New Zealand.
In making its decision, the APVMA ought to have considered the trade implications of refusing the export permit and whether the APVMA position constituted a barrier to trade (under WTO obligations). The Australian growers would still be within the acceptable MRL for New Zealand. The APVMA decision was clearly contrary to Australia’s own interests by preventing an Australian grower to sell to the export market.
The producer in a revised application had advised the APVMA that the tomatoes were to be treated with dimethoate solely for the purpose of export to New Zealand, which had a higher MRL. Nevertheless, the APVMA insisted that Australian growers must comply with the Australian standard within the borders of Australia.
Overlap of jurisdiction with Food Standards Code?
There appears to be some overlap of the APVMA’s jurisdiction with the role of Food Standards Australia New Zealand and the Australia New Zealand Food Standards Code (Food Standards Code).
Under the Agricultural and Veterinary Chemicals (Administration) Act 1992 the APVMA has jurisdiction over regulation and control of AgVet chemicals in Australia up to the point of retail sale. This is mentioned on the website of the APVMA (current as at the date of this article being written).
Standard 1.1.1 of the Food Standards Code states that the provisions of the Code apply to food products:
(a) sold or prepared for sale in Australia or New Zealand; and
(b) imported into Australia or New Zealand.
Whilst the APVMA has jurisdiction in the crop-growing stage, concerning the use of chemicals, for example, FSANZ would have jurisdiction in relation to the food standards for any food “prepared for sale in Australia or New Zealand”.
However, a number of the food standards apply only in Australia and not in New Zealand. These include the Country of Origin labelling standard, the primary production processing standards, the Folic Acid fortification standard – and also the standard governing MRLs.
Legislation under which decision was made
The decision by the APVMA to refuse the permit was made under section 112 of the Agricultural and Veterinary Chemicals Code (AgVet Code) (which is a Schedule to the Agricultural and Veterinary Chemicals Code Act 1994).
Subsections (2) and (3) of section 112 of the AgVet Code state as follows:
(2) The APVMA must grant the application if it is satisfied of the following:
… (f) that, having regard to the matters referred to in subsection 14(4) or (5), as the case requires, the use of, or any other dealing with, the constituent or product as proposed in the application for the permit:
(i) would not be an undue hazard to the safety of people exposed to it during its handling or people using anything containing its residues; and
(ii) would not be likely to have an effect that is harmful to human beings; and
(iii) would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment; and
(iv) would not unduly prejudice trade or commerce between Australia and places outside Australia;
The AgVet Code is directed to Australian agricultural production. However, the APVMA does not see its role as limited to the protection of consumers of goods to be consumed in Australia. It sees its role and powers to be broader, even to the extent of forbidding from export a product that complies with the MRLs in the destination country.
APVMA’s inconsistency with State Food Act’s approach
Under each State Food Act, such as in section 43 of the Food Act 2006 (Qld), there is a legal defence to a breach of the Food Standards Code if “the food concerned is to be exported to another country, and … the food complies with the laws in force at the time of the alleged offence in the place to which the food is to be exported ”.
It is therefore clearly permissible to produce in Australia a food that is legal in another country if that food is designated for export to that country – even if the food is not permitted to be sold in Australia. Yet, the APVMA operates under its own regulatory regime and its own of set policies. The APVMA approach may not currently permit the distinguishing of MRLs for products designated for export. This policy puts the APVMA in the position that it is acting contrary to the interests of Australian exporters.
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.