Food Regulation and Food Law in Australia and New Zealand - an overview
This page contains general information for educational purposes only. It is not legal advice and may not be current. You are advised to seek legal or regulatory risk advice and current information when you want to rely on advice or information when making business or commercial decisions.
A joint food regulation system operates across the countries Australia and New Zealand. It is a co-operative bi-national and multi-jurisdiction arrangement involving all levels of government in the federalized system: local, state and Australian and New Zealand governments.
Food sold in Australia and New Zealand must be safe and suitable and provide legally prescribed information required to allow consumers make informed choices. To this end, Australia and New Zealand have worked together for over 20 years to align many food compliance requirements between the two countries. The Food Standards Treaty provides the basis for the development and application of food standards under the Australia New Zealand Food Standards Code (ANZFSC). Food Safety Standards at Chapter 3 of the ANZFSC apply only in Australia. Also, the Trans-Tasman Mutual Recognition Arrangement (TTMRA) provides for the permitted sale of foods compliant with a food standard not yet agreed by both countries from one country, to the other country. The governments of New Zealand and the states and territories of Australia may also introduce laws and regulations to operate within their own jurisdictions. Jurisdictional based laws and regulations are in addition to the Australia New Zealand Food Standards Code. The jurisdiction-limited laws and regulations provide additional compliance controls in a range of areas such as food safety in New Zealand, primary production (Australian states and territories) and industry-based standards (for example, wine, dairy, seafood and meats).
In general, the Australian and New Zealand bi-national food regulation system presents three elements:
A separation of food regulatory policy development and guidelines by the Australian and New Zealand Ministerial Forum of Food Regulation (convening as Australia and New Zealand Food Regulation Ministerial Council) (the Forum),
The development of food standards for the ANZFSC by the Commonwealth statutory body Food Standards Australia New Zealand (FSANZ) pursuant to the Food Standards Australia and New Zealand Act 1991, and
Monitoring of compliance and enforcement by jurisdictions administering Model Food Act 2000 provisions (which includes administering the ANZFSC) adopted in state food acts and the NZ Food Act 2014.
The goal of the joint food regulatory system in Australia and New Zealand is to use peer-reviewed science to create policies, develop regulatory measures in law, implement and enforce those standards. Given that all new regulatory measures must apply scientific analysis using Codex or an equivalent, risk analyses are conducted according to the statutory obligations of FSANZ, as the standard-setting body before the Forum members vote to decide on the ANZFSC standards to be promulgated.
The Australian New Zealand Food Standards Code (ANZFSC)
Applicable in each jurisdiction within Australia and New Zealand (with explicit exemptions for NZ food producers) the ANZFSC provides the minimum requirements to produce, safe, suitable and properly labelled food whether produced or imported into Australia and New Zealand. It is organized into chapters, parts and schedules. Chapter 1 includes standards that apply to all foods including definitions, labelling, nutritional, health and related claims, nutritional information requirements, food additives, vitamins/minerals, processing aids, contaminants and agvet chemicals. It also proscribes requirements for pre-market clearance prior to placing novel foods, foods produced using gene technology and irradiated foods on the market. It also controls microbiological limits in food and processing requirements for meat. Chapter 2 contains provisions which apply only to particular foods such as cereals, meat, eggs, fish, fruits, vegetables, edible oils, dairy products, alcoholic and nonalcoholic beverages, sugars and honey, special purpose foods, vinegar, salt and salt products and chewing gum. Chapter 3 provides food safety standards for the processing of safe and suitable food for sale in Australia. Chapter 3 does not apply in New Zealand. Additional food safety legislation applies separately in that country. And, chapter 4 lists primary production standards for various food, which are applicable only in Australia.
Model Food Act 2000 (Australia)
Model Food Act 2000 – Annex A provisions are adopted in each Australian state and territory food Act. The food law adopts the ANZFSC and contains offences for failure to comply with the ANZFSC. In addition to the minimum standards required under the ANZFSC, the food laws in each jurisdiction regulates food businesses by providing offences for handling food intended for sale in a manner that renders food unsafe, unsuitable, the sale of unsafe or unsuitable food, misleading or deceptive conduct in relation to the advertising, packaging or labeling of food for sale causing food to be falsely described or the sale of falsely described food; imposes licensing, registration or notification requirements for food businesses; provides for the appointment of authorized officers with powers of enforcement and enforcement actions; and provides for the making of emergency orders.
Additional state and territory acts and regulations for primary production and food industry-specific food safety schemes are administered by responsible state or territory governments within each jurisdiction.
Food safety legislation (New Zealand)
Food Act 2014 (NZ) commenced on 1 March 2016. Similar meanings of safety and suitability and other definitions relating to the regulation of food as found in the ANZFSC and provisions from the Model Food Act 2000 appear also in the law for NZ. The Agricultural Compounds and Veterinary Medicines Act 1997, the Animal Products Act 1999 and the Wine Act 2003, although not discussed in any substantive form in this course, should be mentioned as acts central to the regulation of food safety in New Zealand. Additional regulations also apply in New Zealand under the Animal Products Act 1999.
Australian Consumer Law
The Australian Consumer Law (ACL) also contains prohibitions on conduct that is “misleading or deceptive or is likely to mislead or deceive”; the making of false representations “that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use”; or, the “place of origin of goods”; and, conduct “that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods”.
New Zealand Consumer Law
The Fair Trading Act 1986 exists to promote fair competition, make sure consumers get accurate information before buying products and services and promotes product safety. The Fair Trading Act makes it illegal for businesses to “engage in conduct that is misleading or deceptive or likely to mislead or deceive”, make “unsubstantiated representations” and “false or misleading representations”.
Specific Food Laws and Regulations
‘Food’ for the purpose of the regulatory system is any substance or thing of a kind used, or represented as being for use, for human consumption, or as an ingredient or additive in a food, or direct food contact materials, chewing gum, and declared foods by FSANZ. In the Australia and New Zealand joint system, food is not regulated by the defined concept of ‘adulterated’ and requires food businesses to process and ensure only ‘safe’ and ‘suitable’ food is sold with prohibitions on falsely described foods and misleading or deceptive conduct.
Food is considered ‘unsafe’ if at a particular time it would be likely to cause physical harm to a person who might later consume it according to its intended use. 
Food may not be unsafe, as defined, but be ‘unsuitable’. ‘Unsuitable’ food is food that: (a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use, or (b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use, or (c) if the product of a diseased animal or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption, or (d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.
A food ‘contaminant’ means ‘any biological or chemical agent, foreign matter, or other substances that may compromise food safety or suitability’.
Labeling in Australia and New Zealand
Labeling provisions are promulgated by FSANZ and are included in the ANZFSC at Part 1.2. In 2011 an extensive, independent review of Australia’s food labeling laws and policies was conducted by experts and released for considered responses in government. The review made recommendations for some changes to food labeling regulatory priorities, policies, compliance and enforcement strategies, and, in some areas, changes to the law. Government implemented some, but not all recommendations.
Responsible enforcement agencies, including state health departments, dedicated food enforcement bodies and local councils enforce food labeling standards in the Australian states and territories. In New Zealand, the Ministry for Primary Industries (MPI) is responsible for enforcement of compliance with food legislation.
The topics addressed in labeling laws are arranged in descending order public health and safety risk-based priority:
Direct, immediate risk to health and safety, the intervention is mandatory and prescribed in the ANZFSC, for example, information and allergen labeling requirements.
Preventative health issues where there are indirect, long term impacts on health are subject to a combination of mandatory and co-regulatory requirements, for instance, the making of voluntary nutrition and health claims.
The third priority is information triggered by “consumer value issues”, which is not prescribed in the ANZFSC but may consist of voluntary credence claims such as “organic”, “free range”, “grass fed” etc. self-regulated and controlled by the consumer protection provisions contained in state or territory food Acts and the Australian Consumer Law in Australia and the Food Act 2014 (NZ) and Fair Trading Act 1986 (NZ), as the case may be.
To this extent ANZFSC requires mandatory labeling information for all packaged foods.
In addition, a food that is sold with a specified name or representation must satisfy conditions to use the name in connection with the sale. Further, specific commodity standards exist for honey, milk, cream, butter, ice cream, sugars, fruit and vegetable juices, meat and meat products, eggs, fish, jam, fermented milk products, edible oils and their spreads, vinegar, salt and salt products, fruit and vegetables, chewing gum, beer, wine, and spirits.
Likewise, packaged and unpackaged foods produced using gene technology, ingredients, additives, or processing aids that contain novel DNA are required to be labelled with ‘genetically modified’ in conjunction with the name of the genetically modified food. Exemptions apply for genetically modified foods that do not contain novel DNA, flavours containing novel DNA or protein in a concentration of no more than 0.1%, or when no more than 1% (per ingredient) of an approved genetically modified food unintentionally present in a non-genetically modified food.
Packaged foods for sale must bear (as defined) a label with the information, unless the food:
Is made and packaged on the premises from which it is sold; or
Is packaged in the presence of the purchaser; or
Is whole or cut fresh fruit and vegetables (other than seed spouts or similar products) in a package that does not obscure the nature or quality of the food; or
Is delivered packaged, and ready for consumption, at the express order of the purchaser, or
Is sold at a fundraising event, or
Displayed in an assisted (as defined) service display cabinet.
Country of Origin (CoOL)
Country of origin labeling (CoOL) has been a political issue in Australia and New Zealand over the years which has intensified following large food borne illness outbreaks concerning imported frozen berries and an association (in epidemiological studies) with Hepatitis A. New Zealand and Australia have different CoOL regimes operating.
On 1 July 2016 a new CoOL system commenced in Australia. Food businesses manufacturing food in Australia or importing food for sale in Australia had two years to change their food labels to comply with the new CoOL system before it became mandatory on 1 July 2018. From 1 July 2018 ANZFSC Standard 1.2.11 ceased to apply. The national consumer regulator, the Australian Competition and Consumer Commission (ACCC) enforces CoOL requirements in Australia, not the state and territory governments.
Under the new CoOL system, most food for retail sale in Australia must be labeled with (i) a country of origin statement, and (ii) prescribed logo/mark and bar chart. Foods to which the requirements relate do not apply to ‘non-priority food’ (as defined). It is a voluntary, not mandatory act to use the standard marks on non-priority foods.
(i) The country of origin statements applies to retail sales of food and varies depending on whether the food is packaged (other than fresh fruit and vegetables); fresh fruit and vegetables in transparent packages; and, unpackaged meat, fish, fruit and vegetables. Different requirements for country of origin statements depend on whether the food was:
Grown, produced or made in Australia
Packaged in Australia
Grown, produced or made in another country, or
Packaged in another country.
(ii) In addition to the requirement for a country of origin statement, a marking that includes text with a bar chart indicating of the proportion of Australian ingredients by ingoing weight must be included on the food. If all the food ingredients were grown, produced or made in Australia, the mark will also include a prescribed kangaroo logo.
On 3 December 2018 the Consumers’ Right to Know (Country of Origin of Food) Act 2016 was passed into law in New Zealand.
The new food labelling requirements on food origin declarations means once the Minister of Commerce and Consumer Affairs drafts the actual standard setting out the legal requirements, CoOL will be mandatory when selling fresh or frozen fruit, vegetables, meat, fish and seafood. As at March 2019 the legal standard has not been issued. Once issued, the standard will apply to fresh produce six months after issue, and for frozen produce, 18 months from issue. Until the law is issued at a date soon to be determined, country of origin labelling on foods (with the exception of wine) sold in New Zealand will remain voluntary and subject to the Fair Trading Act 1986 (NZ).
Nutrition, Health and Related Claims Standard 1.2.7
There are four types of claims considered in Standard 1.2.7:
Nutrient content claims
General level health claims (Pre-approved and self-substantiated Food/Health Relationships (FHR))
High level health claims
General principles apply to the overall claims-making framework, which may impose prerequisites, conditions, qualifications or other requirements. For example, health claims used in the sale and advertising of food must not be therapeutic in nature.
Two main features characterize the new health claims system – claim substantiation pathways and the Nutrition Profiling Scoring Criteria (NPSC). The most significant feature is the alternate pathway offered by the Standard to scientifically substantiate a ‘food (or property of food)/ health relationship’ (FHR) to make a health claim that ‘states, suggests or implies that a food or a property of food has, or may have, a health effect’.
Nutrient content claims are high/low/increased/decreased claims of nutrient content in foods. Standard 1.2.7 provides the compositional conditions for making claims such as ‘high fibre’ including the required approach in making comparative claims about reference foods.
General level (GL) and high level (HL) claims are both considered ‘health claims’; but only HL health claims can make references to ‘serious disease or a biomarker of a serious disease’ and only GL health claims can be self-substantiated by a food business for notification to FSANZ. GL claims preapproved for use, when prescribed conditions are met, and listed in Schedule 4 of the ANZFSC include ‘calcium is necessary for normal teeth and bone structure/normal nerve and muscle function/normal blood coagulation’; ‘vitamin E contributes to cell protection from free radical damage’; ‘beta-glucan reduces dietary and biliary cholesterol absorption’; and, ‘dietary fibre contributes to regular laxation’.
Serious disease is defined in the standard to mean, ‘a disease, disorder or condition which is generally diagnosed, treated or managed in consultation with or with supervision by a health care professional’.
Examples of the current 10 HL health claims approved for use (and listed in Schedule 4 of the ANZFSC) in particular contexts and conditions include ‘increased/high intake of fruit and vegetables reduces risk of coronary heart disease’; ‘calcium reduces risk of osteoporosis/osteoporotic fracture’; ‘saturated fatty acids reduce total blood cholesterol or blood LDL’ and ‘beta-glucan reduced blood cholesterol’ (see example Vitasoy Oat & Almond milk (pictured)).
Over 200 ‘preapproved’ FHRs are listed in Schedule 4 for use by food businesses when making GL or HL claims. HL health claims can only be made when a preapproved FHR listed in Schedule 4 of Standard 1.2.7 of the ANZFSC exists, having already been established by a process of systematic review conducted by FSANZ.
Where a food business wants to make a health claim about a property of food not pre-approved and not on the list, a process of a systematic review that complies with the high evidence threshold demanded by the Schedule 6, must be conducted and FSANZ CEO notified. FSANZ is not involved in assessing the quality of the evidence under systematic review nor the conclusions drawn. Post-market, it is the state regulators who have powers to compel the production of the self-substantiation dosser to assess the evidence for compliance with the systematic review demands.
Endorsement means a nutrition content claim or a health claim that is made with the permission of an endorsing body. An endorsing body must be a not-for-profit entity with nutrition or health-related function and permits the food supplier to make an endorsement. Specific limitations are applied to the endorsing body, under Standard 1.2.7. For example, an endorsing body must not be related to the supplier of the food. Additional criteria for endorsements include information and record keeping requirements are prescribed.
Finally, the Nutrition Profile Scoring Criteria (NPSC) presents as a “calculator” within the framework to determine the “healthiness” of a food and associated eligibility to carry particular types of claims. Only foods (except standardized foods in Part 2.9 of the ANZFSC) that satisfy the NPSC may carry GLs and HL claims. Foods high in fat, sugar or salt do not qualify to carry health claims. The NPSC restrictions do not apply to restrict the use of nutrition content claims foods; nutrition content claims can be on any type of food, although additional conditions and restrictions apply to specific nutrition claims about properties of food.
Recognised food allergens are required to be labelled when either they are ingredients of food, as components of food, or processing aids unless specifically exempt. Allergens that must be declared include peanuts, tree nuts, milk, egg, sesame seeds, fish, crustacea (shellfish), soybeans, cereals containing gluten (namely wheat, rye, barley, oats and spelt and their hybridized strains), lupin (as of May 25 2017,) royal jelly, sulphites (if added at 10 or more mg/Kg of food). Royal jelly (see Australian by Nature Fresh Royal Jelly (pictured)) can cause severe allergic reactions and therefore requires a mandatory warning statement. Interestingly, the phrase “may contain” is not regulated by the ANZFSC.
Novel Foods and Food Produced Using Gene Technology
A novel food is a food that is a ‘ ‘non-traditional food’ that requires an assessment of the public health and safety considerations having regard to the potential for adverse effects in humans, composition or structure of the food, process by which the food has been prepared, the source from which it is derived, patterns and levels of consumption of the food or any other relevant matters’ (as defined). The concept of ‘non-traditional food’ is also defined in Standard 1.5.1 and means ‘a food that does not have a history of human consumption in Australia or New Zealand, or a substance derived from a food, where that substance does not have a history of human consumption in Australia or New Zealand other than a component of that food, or any other substance, where that substance, or the source from which it is derived, does not have a history of human consumption as food in Australia or New Zealand’ (as defined).
Foods that meet the ‘novel food’ definition, including ‘novel food’ ingredients must be assessed for safety by FSANZ and listed in the table to Standard 1.5.1 before being placed on the market in either Australia or New Zealand. The assessment is designed to evaluate the impact on public health and safety. The process generates a “positive list” much like other nations. No novel food can be sold unless it is listed in Standard 1.5.1. An example of a permitted novel food is all oil phytosterol esters/ plant sterol esters (see example Flora pro-activ margarine).
There is a two-part process to determine if a food is either ‘non-traditional’ or ‘novel’ and/or both and requires a ‘novel’ food application process by FSANZ. If there is a question regarding whether a food is “novel” or not an inquiry can be made to the Advisory Committee on Novel Foods (ACNF). This consultation is optional. The questions that help determine if a food is a non-traditional food include 1) length of use, 2) extent of use, 3) quantity (level of intake) of use, 4) purpose or context of use. Further, the recommendation made by the ACNF does not constitute a safety consideration by itself. While not binding the decision in law, the ACNF is used to help proponents decide if an application to FSANZ is needed. An updated record of ACNF views formed in response to inquiries is available for public review.
Once a non-traditional food (novel food) is approved by FSANZ, the approval is applicant specific but other applicants can make their own application. However, until another applicant makes an application, the permission to market is exclusive for a defined period.
Separate from the novel food standard, the ANZFSC explicitly prohibits a food or ingredient that consists of a component or a food produced using gene technology, unless expressly permitted in the ANZFSC. Standard 1.5.2 of the ANZFSC regulates food produced using gene technology (as defined). Food produced using gene technology is permitted for sale when it is listed in Schedule 26 of the ANZFSC or is a substance that is permitted for use as a food additive by Standard 1.3.1 or processing aid by Standard 1.3.3.
Foods Imported from New Zealand to Australia
The Trans-Tasman Mutual Recognition Arrangement (TTMRA) is a non-treaty arrangement between the Australian (commonwealth) and the Government of New Zealand. This agreement relates to the mutual recognition of safety of goods including food. Under the TTMRA, most food is not subject to the requirements of the Imported Food Control Act (199) although the Australian biosecurity requirements still apply to food from New Zealand. This provision only applies to food that is grown harvested and produced in or imported into New Zealand that complies with New Zealand food laws and that is labelled with the importers name and business address in Australia or New Zealand. There are exceptions under the Act which require inspection and testing including beef, beef products, cassava chips that are ready-to-eat, seaweed (brown only), all foods that are shipped through New Zealand but not approved for sale in New Zealand.
 The Forum is responsible for the development of domestic food regulatory policy etc. See, generally http://foodregulation.gov.au/internet/fr/publishing.nsf/Content/Forum .
 Australian departments responsible for administering the Food Act in its State or Territory include Department of Health Queensland, Department of Health, Victoria; Department of Health, South Australia; New South Wales Food Authority; Department of Health, Western Australia; ACT Health, Department of Health, Northern Territory; and Department of Health, Tasmania.
 Food Standards Australia New Zealand 1991 s18(1)-(2). See, generally http://www.foodstandards.gov.au/publications/riskanalysisfoodregulation/pages/default.aspx .
 The Model Food Act 2000 provisions are split into Annex A and Annex B and provide a legislative basis for a “substantially equivalent” national uniform food safety regime. Each of the states and territories used these annexes as the base to amend their respective food acts. Annex A was to be applied uniformly while Annex B could vary between jurisdictions. By doing these food standards developed by FSANZ are automatically adopted by reference, through respective jurisdictional food acts, when these are promulgated. See, http://foodregulation.gov.au/internet/fr/publishing.nsf/Content/key-system-documents
 Food Act 2001 (ACT), Food Act 2004 (NT), Food Act 2003 (NSW), Food Act 2006 (QLD), Food Act 2001 (SA), Food Act 2003 (TAS), Food Act 1984 (VIC) and Food Act 2008 (WA).
 See, e.g. Food Act 2003 (NSW) s 21.
 Food Act 2014 (NZ) s 12.
 Australian Consumer Law, Sch 2; Competition and Consumer Act 2010 s 18(1).
 Australian Consumer Law, Sch 2; Competition and Consumer Act 2010 s 29(1)(a).
 Australian Consumer Law, Sch 2; Competition and Consumer Act 2010 s 29(1)(k).
 Australian Consumer Law, Sch 2; Competition and Consumer Act 2010 s 33.
 Fair Trading Act 1986 s 9 (NZ).
 Fair Trading Act 1986 s 12A (NZ).
 Fair Trading Act 1986 s 13 (NZ).
 Model Food Act 2000 s 5. The definition is adopted in the states and territory food acts of Australia and the food safety legislation in New Zealand.
 See, in Australia ANZFSC Standard 3.2.2 cl 7; in New Zealand Food Act 2014 s 14.
 Model Food Act 2000 s 6 (1). The definition is adopted in the state and territory food acts of Australia and the food safety legislation in New Zealand.
 Model Food Act 2000 s 7 (1).
 See, generally http://foodregulation.gov.au/internet/fr/publishing.nsf/Content/review-food-labelling (last accessed 25 March 2019).
 Food Policy Labeling Conceptual Framework, Overarching Statement for the Food Regulatory System (2017), 10. See, http://foodregulation.gov.au/internet/fr/publishing.nsf/Content/foodsecretariat-stategic-statement
 Country of Origin Food Labelling Information Standard 2016, made under the ACL, provides for country of original labeling requirements for food for human consumption sold in Australia. See,
 Country of Origin Food Labelling Information Standard 2016 Part 5 (transitional provisions) (Australia).
 See, generally www.accc.gov.au.
 Country of Origin Food Labelling Information Standard 2016 s 9 (Australia). ‘Non-priority foods’ for the purpose of the information standard means (a) seasonings; (b) confectionary; (c) biscuits and snack food; (d) bottled water; (e) soft drinks and sports drinks; (f) tea and coffee; (g) alcoholic beverages.
 The labeling requirements are set out in Part 2 of Country of Origin Food Labelling Information Standard 2016 (Australia).
 The terms ‘grown’, ‘produced’ and ‘made’ are defined in Country of Origin Food Labelling Information Standard 2016 s 8 (Australia). Generally, a food can be described as grown or produced in a country only if virtually all of its contents is from, and virtually all of the processing is undertaken, in that country. Any food that can be described as grown or produced in a country can also be described as made in that country.
 Country of Origin Food Labelling Information Standard 2016 §§ 10-13, and §§ 21, 23 (Australia).
 The information must be in the form of one of the standard marks set out in Country of Origin Food Labelling Information Standard 2016 s 18 (Australia).
 ANZFSC Standard 1.2.7 cl 8.
 ANZFSC Standard 1.2.7 definition of health claim where A health effect is, ‘an effect on the human body, including an effect on one or more of the following: a) a biochemical process or outcome; b) a physiological process or outcome; c) a functional process or outcome; d) growth and development; e) physical performance; f) mental performance; or g) a disease, disorder or condition’.
 ANZFSC Standard 1.2.7 Sch 6.
 ANZFSC Standard 1.2.7 cl 23.
 ANZFSC Standard 1.2.7 cl 24.
 ANZFSC Standard 1.2.3 cl 4.
 ANZFSC Standard 1.2.3 cl 3 provides the warning statement required is ‘This product contains royal jelly which has been reported to cause severe allergic reactions and in rare cases, fatalities, especially in asthma and allergy sufferers’.