Commonwealth: Food Standards Australia New Zealand Act 1991 (Cth)

Food Standards Australia New Zealand Act 1991 No. 118, 1991 Compilation No. 29 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 About this compilation This compilation This is a compilation of the Food Standards Australia New Zealand Act 1991 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Object of Act 4 Interpretation 5 Meaning of food 6 Declaration of what is food 7 How is public notice given? 8 When is an exclusive capturable commercial benefit conferred on an applicant? 9 Operation of Act 10 Act to bind Crown 11 Application of the Criminal Code Part 2—The Authority Division 1—Establishment, functions and powers of the Authority 12 Establishment of Authority 13 Functions 14 Powers 15 Minister may give directions Division 2—Food regulatory measures 16 Matters that may be included in standards and variations of standards 17 Codes of practice 18 Objectives of the Authority in developing or reviewing food regulatory measures and variations of food regulatory measures Division 3—Forward planning 20 Authority to develop three year plan Part 3—Food regulatory measures Division 1—Applications for the development or variation of food regulatory measures Subdivision A—Overview 21 Steps in the consideration of an application Subdivision B—Applications 22 Applications 23 Application guidelines 24 Withdrawal of applications Subdivision C—Procedures for considering applications 25 Which procedure is appropriate? Subdivision D—General procedure 26 Accepting an application 27 Notice of acceptance 28 Public notice of the application 29 Assessing the application 30 Preparing a draft variation 31 Calling for submissions 32 Alternative steps to be followed 33 Approving the draft standard or draft variation 34 Notifying the Forum on Food Regulation 35 Alternative to steps set out in sections 33 and 34—approving the draft code of practice or draft variation Subdivision E—Modification of general procedure for minor variations 36 Application of Subdivision 37 Adopt the general procedure with the modifications set out in this Subdivision 38 Modification of step set out in section 29 39 Modification of step set out in section 30 40 Modification of step set out in section 31 41 Modification of steps set out in sections 32, 33, 34 and 35 Subdivision F—Modification of general procedure for developing new food regulatory measures and major variations 42 Application of Subdivision 43 Adopt the general procedure with the modifications set out in this Subdivision 44 Additional step after step set out in section 29 45 Matters to which Authority must have regard in making a decision under section 30 Subdivision G—Procedure for certain variations of the Nutrition, Health and Related Claims Standard 46 Application of Subdivision 47 Accepting the application 48 Notice of acceptance 49 Notice of the application to expert committee and Food Regulation Standing Committee 50 Considering the application 51 Calling for submissions 52 Approving the draft variation in relation to high level health claims 53 Notifying the Forum on Food Regulation Division 2—Proposals for the development or variation of food regulatory measures Subdivision A—Overview 54 Steps in the consideration of a proposal Subdivision B—Proposals 55 Proposals 56 Abandonment of proposals Subdivision C—Procedures for considering proposals 57 Which procedure is appropriate? Subdivision D—General procedure 58 Public notice of a proposal 59 Assessing a proposal 60 Preparing a draft food regulatory measure or draft variation 61 Calling for submissions 62 Alternative steps to be followed 63 Approving the draft standard or draft variation 64 Notifying the Forum on Food Regulation 65 Alternative to steps set out in sections 63 and 64—approving the draft code of practice or draft variation Subdivision E—Modification of general procedure for minor variations 66 Application of Subdivision 67 Adopt the general procedure with the modifications set out in this Subdivision 68 Modification of step set out in section 61 69 Modification of steps set out in sections 62, 63, 64 and 65 Subdivision F—Modification of general procedure for developing new food regulatory measures and major variations 70 Application of Subdivision 71 Adopt the general procedure with the modifications set out in this Subdivision 72 Additional step after step set out in section 59 73 Matters to which Authority must have regard in making a decision under section 60 Subdivision G—Procedure for certain variations of the Nutrition, Health and Related Claims Standard 74 Application of Subdivision 75 Notice of the proposal 76 Considering the proposal 77 Calling for submissions 78 Approving the draft variation in relation to high level health claims 79 Notifying the Forum on Food Regulation Division 2A—Variations by APVMA of the Maximum Residue Limits Standard 80 Application of Division 81 Authority to give notice of APVMA notification 82 APVMA may vary the Maximum Residue Limits Standard 83 No limit on the Authority's power to vary the Maximum Residue Limits Standard Division 3—Forum on Food Regulation review of draft standards and draft variations of standards 84 Forum on Food Regulation may request a review 85 Review not requested 86 Review requested 87 Authority to respond to request 88 Forum on Food Regulation may amend or reject the draft after review 89 Forum on Food Regulation does not intend to amend or reject the draft 90 Forum on Food Regulation amends the draft 91 Forum on Food Regulation rejects the draft 92 Publication requirements 93 When a standard or variation takes effect 94 Standards and variations are legislative instruments Division 4—Urgent applications and proposals Subdivision A—Urgent consideration of applications and proposals 95 Declaration of urgency 96 Preparation of draft standard or variation 97 Approval and publication of standard or variation Subdivision B—Assessing the resulting standard or variation 98 Application 99 Assessing the standard or variation 100 Calling for submissions 101 Re‑affirm the standard or variation or propose changes 102 Forum on Food Regulation may request Authority to review 103 Review requested 104 Authority to respond to request 106 Forum on Food Regulation may revoke or amend standard or variation Division 5—General rules for considering applications and proposals 107 General conduct in considering an application or proposal 108 Authority may require further information 109 Period within which consideration of applications for standards or variations must be completed 110 Rejecting an application or abandoning a proposal 111 Public hearings 112 Authority may rely on work or processes of other government agencies Division 6—Other matters 113 Review of food regulatory measures 114 Confidential commercial information Part 4—The Board, the Chief Executive Officer and the Authority's staff Division 1—The Board 115 Board 116 Constitution of Board 117 Appointment of members 118 Committees 119 Remuneration and allowances 120 Leave of absence of members 121 Acting appointments 122 Meetings 123 Conduct of meetings 124 Resolutions without formal meetings 125 Disclosure of interests 126 Resignation 127 Termination of appointment Division 2—The Chief Executive Officer 128 Appointment 129 Duties 130 Delegation 131 Remuneration and allowances 132 Resignation 133 Other terms and conditions 134 Acting Chief Executive Officer Division 3—Staff, consultants and assistance from other agencies 135 Staff of Authority 136 Consultants 137 Arrangements with Commonwealth Departments etc. Part 5—Finance 138 Money to be appropriated 139 Money of Authority 140 Taxation 141 Trust money Part 6—Miscellaneous 142 Documents and samples become Commonwealth property 143 Review of decisions 144 Statement accompanying notification of decisions 145 Fees for services provided to New Zealand 146 Charges relating to the Authority's costs 147 Charge—late payment penalty 148 Charge—discount for early payment 149 Charge and late payment penalty—remissions and refunds 150 Delegation by Board 151 Exemption from suit 152 Annual report 152A Corporate plans 153 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Miscellaneous An Act establishing a body to be known as Food Standards Australia New Zealand with functions relating to the development of food regulatory measures, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Food Standards Australia New Zealand Act 1991. 2 Commencement (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. 3 Object of Act The object of this Act is to ensure a high standard of public health protection throughout Australia and New Zealand by means of the establishment and operation of a joint body to be known as Food Standards Australia New Zealand to achieve the following goals: (a) a high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand; (b) an effective, transparent and accountable regulatory framework within which the food industry can work efficiently; (c) the provision of adequate information relating to food to enable consumers to make informed choices; (d) the establishment of common rules for both countries and the promotion of consistency between domestic and international food regulatory measures without reducing the safeguards applying to public health and consumer protection. 4 Interpretation (1) In this Act, unless the contrary intention appears: Agvet Code means the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth. appropriate government agency means: (a) the relevant Department of State of the Commonwealth, a State, a Territory or New Zealand administered by a Minister who is a member of the Forum on Food Regulation; or (b) any other body that has an officer on the Food Regulation Standing Committee; or (c) any other body or officer of the Commonwealth, a State, a Territory or New Zealand that the Authority considers has a particular interest in the relevant matter. APVMA means the Australian Pesticides and Veterinary Medicines Authority continued in existence by section 6 of the Agricultural and Veterinary Chemicals (Administration) Act 1992. Australia New Zealand Food Standards Code means the code published under the name Food Standards Code in the Gazette on 27 August 1987 together with any amendments of the standards in that code: (a) approved by a former Council before this Act commenced and published in the Gazette as forming part of that code; or (b) made under this Act. Australia New Zealand Joint Food Standards Agreement means the Agreement between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards, signed at Wellington on 5 December 1995, as amended in accordance with Article 10 of that Agreement. Authority means Food Standards Australia New Zealand. Board means the Board of the Authority. business day means a day that is not: (a) a Saturday; or (b) a Sunday; or (c) a public holiday in the Australian Capital Territory or in Wellington, New Zealand. Chief Officer means: (a) in relation to a Commonwealth, State, Territory or New Zealand authority—the person who has the responsibility of Executive Officer or Chief Executive Officer of that authority (whether the person is a member of that authority or not); and (b) in relation to any other authority or body—the person who has the responsibility for the day to day management of that authority or body. code of practice means a code of practice developed by the Authority under Part 3. However, a code of practice is not a standard. Commonwealth authority means a body, whether corporate or not, established by the Commonwealth, or by or under a law of the Commonwealth. confidential commercial information, in relation to food, means: (a) a trade secret relating to food; or (b) any other information relating to food that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed. develop, in relation to a food regulatory measure or a variation of a food regulatory measure, includes: (a) prepare a draft of the measure or variation; and (b) approve a draft of the measure or variation. exclusive capturable commercial benefit has the meaning given by section 8. Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013. food has the meaning given by section 5. Food Regulation Agreement means the Food Regulation Agreement, as amended from time to time: (a) that is between the Commonwealth, the States, the Northern Territory and the Australian Capital Territory; and (b) that was first made on 3 November 2000 or that was made: (i) in substitution for that agreement; or (ii) in substitution for a prior substituted agreement. Food Regulation Standing Committee means the Committee established under the Food Regulation Agreement. food regulatory measure means a standard or a code of practice. former Council means: (a) the Council of Commonwealth, State and Territory Ministers that was established in 1986 by agreement between the Commonwealth, the States and the Northern Territory and is known as the National Food Standards Council; or (b) if that Council was reconstituted but continued in existence under that name by agreement between the Commonwealth, the States, the Northern Territory and the Australian Capital Territory, whether entered into before or after this Act commences—that Council as so reconstituted and continued in existence; or (c) if that Council was reconstituted but continued in existence under the name Australia New Zealand Food Standards Council by agreement between the Commonwealth, the States, the Northern Territory and the Australian Capital Territory—that Council as so reconstituted and continued in existence. Forum on Food Regulation means the Australia and New Zealand Ministerial Forum on Food Regulation established by the Food Regulation Agreement. general procedure means: (a) in relation to the consideration of an application—the procedure set out in Subdivision D of Division 1 of Part 3; and (b) in relation to the consideration of a proposal—the procedure set out in Subdivision D of Division 2 of Part 3. High Level Health Claims Committee means a committee established under subsection 118(1A) to give advice on applications or proposals to make a high level health claims variation. high level health claims variation means a variation, the only effect of which is to make a change to the list of high level health claims, as defined for the purposes of the Nutrition, Health and Related Claims Standard, that may be made under that standard. Maximum Residue Limits Standard means the Maximum Residue Limits Standard as in force from time to time, or any standard in force in substitution for that standard. member means a member of the Board and includes the Chairperson and the Chief Executive Officer. New Zealand authority means a body (whether corporate or not) established by New Zealand, or by or under a law of New Zealand. New Zealand lead Minister on the Forum on Food Regulation means the Minister of the government of New Zealand who is: (a) a member of the Forum on Food Regulation; and (b) nominated by the government of New Zealand to be the New Zealand lead Minister on the Forum on Food Regulation. Nutrition, Health and Related Claims Standard means the Nutrition, Health and Related Claims Standard as in force from time to time, or any standard in force in substitution for that standard. policy guideline means a guideline formulated by the Forum on Food Regulation for the purposes of paragraph 18(2)(e). prepare includes process, manufacture and treat. produce includes prepare. public notice has the meaning given by section 7. standard means: (aa) a standard made under this Act after the commencement of Part 1 of Schedule 1 to the Australia New Zealand Food Authority Amendment Act 2001; or (a) a standard that has been adopted, or taken to have been adopted, by a former Council under this Act before the commencement of Part 1 of Schedule 1 to the Australia New Zealand Food Authority Amendment Act 2001; or (b) a standard that is included in the Australia New Zealand Food Standards Code. However, neither of the following is taken to be part of a standard: (c) text identified as an editorial note; (d) text identified as an example. State or Territory authority means a body, whether corporate or not, established by a State or Territory, or by or under a law of a State or Territory. Territory means the Australian Capital Territory and the Northern Territory. trust money means money received or held by the Authority on trust. (3) A reference in the definition of Australia New Zealand Food Standards Code in subsection (1) to the amendment of the standards in that code includes, and is taken always to have included, a reference to an amendment by way of the insertion, revocation or substitution of a standard in that code. (4) A reference in this Act to the variation of a food regulatory measure includes, and is taken always to have included, a reference to the revocation of a food regulatory measure. 5 Meaning of food (1) Food includes: (a) any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and (b) any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and (c) any substance used in preparing a substance or thing referred to in paragraph (a); and (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and (e) any substance or thing declared to be a food under a declaration in force under section 6. (It does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption.) (2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989. (3) To avoid doubt, food may include live animals and plants. 6 Declaration of what is food (1) After consulting the Authority, the Minister may, by legislative instrument, declare that a substance or thing is food for the purposes of this Act. Note 1: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration: see subsection 44(1) of that Act. Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the declaration: see subsection 54(1) of that Act. (2) The Minister must cause a copy of the declaration to be published in the New Zealand Gazette. (3) A declaration takes effect on the day specified in the declaration. That day must not be a day before the declaration is published. 7 How is public notice given? The Authority satisfies a requirement under this Act to give public notice of a particular matter by: (a) publishing notice of the matter on the Authority's website; and (b) giving written notice of the matter to each appropriate government agency; and (c) if the requirement to give notice arises in the course of considering an application to develop or vary a food regulatory measure—giving written notice of the matter to the applicant; and (d) if the Authority has called for submissions in the course of considering an application or proposal for the development or variation of a food regulatory measure—giving written notice of the matter to each of the persons invited to make a submission who made a submission within the relevant submission period; and (e) giving written notice to any other person or body whom the Authority considers appropriate. 8 When is an exclusive capturable commercial benefit conferred on an applicant? An exclusive capturable commercial benefit is conferred upon a person who applies for the development of a food regulatory measure or the variation of a food regulatory measure under section 22 if: (a) the applicant can be identified as a person or body that may derive a financial gain from the coming into effect of the draft standard or draft variation of the standard that would be prepared in relation to the application; and (b) any other unrelated persons or bodies, including unrelated commercial entities, would require the agreement of the applicant in order to benefit financially from the approval of the application. 9 Operation of Act (1) Without prejudice to its effect apart from this section, this Act has effect for any or all of the following purposes: (a) for purposes connected with fixing: (i) the standard of food sold by corporations; or (ii) standards in relation to activities undertaken by corporations in respect of food before, or in connection with, its sale, where, in the case of trading corporations, those activities are undertaken for the purpose of the trading activities of the corporations; (b) for the purpose of ensuring, to the extent that the Constitution permits, that trade and commerce in food: (i) between Australia and places outside Australia; or (ii) among the States; is carried on in an efficient and profitable manner; (c) for purposes connected with the regulation of food and food standards in the Territories; (d) for purposes connected with controlling the standards of all food supplied to the Commonwealth, its authorities and its instrumentalities; (e) for purposes connected with the fixing of weights and measures in respect of food. (2) In subsection (1): corporation means any corporation to which paragraph 51(xx) of the Constitution is applicable. trading corporation means a trading corporation to which paragraph 51(xx) of the Constitution is applicable. 10 Act to bind Crown This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory but nothing in this Act renders the Crown liable to be prosecuted for an offence. 11 Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Part 2—The Authority Division 1—Establishment, functions and powers of the Authority 12 Establishment of Authority (1) The body known immediately before the commencement of this subsection as the Australia New Zealand Food Authority is continued in existence as Food Standards Australia New Zealand. Note: See also section 25B of the Acts Interpretation Act 1901. (2) The Authority: (a) is a body corporate with perpetual succession; and (b) must have a seal; and (c) may sue and be sued in its corporate name. Note: The Public Governance, Performance and Accountability Act 2013 applies to the Authority. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources. (3) All courts, judges and persons acting judicially must take judicial notice of the imprint of the seal of the Authority appearing on a document and are to presume that the document was duly sealed. 13 Functions (1) The functions of the Authority are: (a) in accordance with this Act, to develop standards and variations of standards, and to review standards and variations of standards; and (b) in accordance with this Act, to develop codes of practice and variations of codes of practice for industry and to review codes of practice; and (c) to develop guidelines to assist the interpretation of the Australia New Zealand Food Standards Code on its own initiative or in consultation with the States, the Territories and any other body or person that the Authority considers appropriate; and (d) to promote consistency between standards in Australia and New Zealand with those used internationally, based on the best available scientific evidence; and (e) in consultation with the States and Territories, or on its own initiative, to facilitate the harmonisation of State and Territory laws relating to food; and (f) in consultation with the States and Territories, or on its own initiative, to co‑ordinate the development of procedures required to implement requirements set out in standards; and (g) in consultation with the States and Territories, to co‑ordinate the monitoring, surveillance and enforcement of activities relating to food available in Australia; and (h) in consultation with the States and Territories, or on its own initiative, to conduct research and surveys in relation to any of the matters that may be included in a standard; and (i) in co‑operation with the States and Territories, to develop food education initiatives, including the publication of information to increase public awareness of food standards and food labels; and (ia) to provide information, on request by a member of the public, about the Australia New Zealand Food Standards Code; and (j) in co‑operation with the Department administered by the Minister administering Part 3‑3 of Schedule 2 to the Competition and Consumer Act 2010, as that Part applies as a law of the Commonwealth, to co‑ordinate the recall of food under that Part; and (k) at the request of the States and Territories, to co‑ordinate action by the States and Territories to recall food under State and Territory laws; and (l) to develop assessment policies in relation to food imported into Australia; and (m) to provide advice to the Minister on matters relating to food; and (n) to participate in international, regional and bilateral negotiations on matters that may be included in standards; and (o) to make the Authority's knowledge, expertise, equipment, facilities and intellectual property available to other persons on a commercial basis; and (p) at the request of New Zealand, to perform functions for New Zealand similar to the functions that the Authority may perform in relation to the States and Territories; and (q) at the request of New Zealand, to perform functions for New Zealand similar to the other functions that the Authority may perform; and (qa) such other functions as are conferred on the Authority by this Act; and (r) any functions incidental to any of the foregoing functions. (2) The function conferred by paragraph (1)(o): (a) can only be exercised: (i) for a purpose for which the Parliament has power to make laws; or (ii) to utilise the Authority's spare capacity; and (b) does not authorise the Authority to do something that would impede the Authority's capacity to perform its other functions. 14 Powers (1) The Authority has power to do all things necessary or convenient to be done in connection with the performance of its functions and, in particular, may: (a) enter into contracts; and (b) acquire, hold and dispose of real or personal property; and (c) occupy, use and control any land or building owned, or held under lease, by the Commonwealth and made available for the purposes of the Authority; and (d) engage persons to perform services for the Authority; and (e) provide assistance to bodies or persons to prepare submissions: (i) relating to the development or consideration of draft food regulatory measures or draft variations of food regulatory measures; or (ii) relating to the performance of any other function of the Authority; if the Authority determines that such assistance will advance the development or consideration of that draft or the performance of that other function; and (f) accept gifts, grants, bequests and advances made to the Authority (whether on trust or otherwise) and act as trustee of money or other property vested in the Authority on trust; and (fa) form, or participate in the formation of, companies; and (fb) subscribe for or purchase shares in, or debentures and other securities of, companies; and (fc) participate in partnerships, trusts and unincorporated joint ventures; and (g) do anything incidental to any of its powers. (2) The powers of the Authority may be exercised within or outside Australia. 15 Minister may give directions (1) Subject to subsection (3), the Minister may give written directions to the Authority as to the performance of its functions and the exercise of its powers and the Authority must comply with those directions. (2) The Minister must cause: (a) a copy of a direction given under subsection (1); and (b) a written statement of the reasons for giving the direction; to be laid before each House of the Parliament within 15 sitting days of that House after the direction is given. (3) The Minister must consult with the Forum on Food Regulation before he or she gives a direction under subsection (1). (4) This section does not affect the application of section 22 of the Public Governance, Performance and Accountability Act 2013 (which deals with the application of government policy to corporate Commonwealth entities) in relation to the Authority. (5) A direction given under subsection (1) is not a legislative instrument. Division 2—Food regulatory measures 16 Matters that may be included in standards and variations of standards (1) Standards, and variations of standards, developed by the Authority may relate to any of the following: (a) the composition of food, including: (i) the maximum amounts of contaminants or residues that may be present in the food; and (ia) the maximum or minimum amounts of additives that must or may be present in the food; and (ii) its microbiological status and safety; and (iii) the method of sampling and testing the food to determine its composition; (b) the production of food; (c) the handling of food; (ca) the prohibition of the sale of food: (i) either in all circumstances or in specified circumstances; and (ii) either unconditionally or subject to specified conditions; (d) any information about food including labelling, promotion and advertising; (e) the knowledge, skill, health and hygiene requirements for people handling food; (f) the responsibilities of businesses that are handling food relating to any hygiene requirements in force under paragraph (e) for people involved in the business who are handling food; (g) the responsibilities of businesses that are handling food to ensure that information in connection with hygiene requirements in force under paragraph (e) that is provided by individuals involved in the business and who are handling food remains confidential except in specified circumstances; (h) the use of devices of a particular standard to measure the temperature of food; (i) the design, construction, maintenance and cleanliness of: (i) premises (including fittings and fixtures) at which food is handled; or (ii) equipment (including single use items) used to handle food; or (iii) vehicles used to transport food; (j) the information that a business that handles food may be required to give about the business to State or Territory authorities; (k) restrictions on the premises at which, and the persons by whom, particular food may be sold or otherwise supplied; (l) restrictions on the publications that may contain advertisements for particular food; (m) requirements relating to animals and pests at premises in which food is handled, or in vehicles in which food is transported; (n) the interpretation of other standards; (o) the application of standards; (p) such other public health matters relating to food as are prescribed. (2) Without limiting subsection (1), a standard may relate to: (a) a class of food generally; or (b) a particular brand of food. (2A) To avoid doubt, subparagraphs (1)(ca)(i) and (ii) do not, by implication, limit any other paragraph of subsection (1). (2B) The matters to which standards, and variations of standards, may relate, are taken always to have included the matter mentioned in paragraph (1)(ca). (2C) To avoid doubt, paragraph (2)(a), as in force before the commencement of this subsection, is taken always to have had effect as if the reference in that paragraph to type were a reference to class. (3) In this section: handle, in relation to food, includes produce, collect, receive, store, serve, display, package, transport, dispose of or recall food. Note: See also the definitions of produce and prepare in subsection 4(1). 17 Codes of practice Codes of practice, and variations of codes of practice, may deal only with matters that may be included in standards. 18 Objectives of the Authority in developing or reviewing food regulatory measures and variations of food regulatory measures (1) The objectives (in descending priority order) of the Authority in developing or reviewing food regulatory measures and variations of food regulatory measures are: (a) the protection of public health and safety; and (b) the provision of adequate information relating to food to enable consumers to make informed choices; and (c) the prevention of misleading or deceptive conduct. (2) In developing or reviewing food regulatory measures and variations of food regulatory measures, the Authority must also have regard to the following: (a) the need for standards to be based on risk analysis using the best available scientific evidence; (b) the promotion of consistency between domestic and international food standards; (c) the desirability of an efficient and internationally competitive food industry; (d) the promotion of fair trading in food; (e) any written policy guidelines formulated by the Forum on Food Regulation for the purposes of this paragraph and notified to the Authority. (3) If any policy guidelines formulated by the Forum on Food Regulation for the purposes of paragraph (2)(e) are notified to the Authority, the Authority must publish the guidelines on the Authority's website. (3A) Policy guidelines formulated by the Forum on Food Regulation for the purposes of paragraph (2)(e) must not be inconsistent with the objectives set out in subsection (1). (4) Where the Authority considers that the best available scientific evidence referred to in paragraph (2)(a) is insufficient, the Authority may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent scientific information. In such cases, the Authority must take all reasonable steps to obtain the information necessary for a more objective risk analysis and a review of the sanitary or phytosanitary measures, to be undertaken within a reasonable period of time. (5) For the purposes of this section, a sanitary or phytosanitary measure means any measure applied: (a) to protect animal or plant life or health from risks arising from the entry, establishment or spread of pests, diseases, disease‑carrying organisms or disease‑causing organisms; or (b) to protect human or animal life or health from risks arising from additives, contaminants, toxins or disease‑causing organisms in foods, beverages or feedstuffs; or (c) to protect human life or health from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage from the entry, establishment or spread of pests; and includes: (e) any relevant law, decree, regulation, requirement or procedure, including end product criteria; and (f) processes and production methods; and (g) testing, inspection, certification and approval procedures; and (h) quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; and (i) provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and (j) packaging and labelling requirements directly related to food safety. (6) A policy guideline formulated by the Forum on Food Regulation for the purposes of paragraph (2)(e) is not a legislative instrument. Division 3—Forward planning 20 Authority to develop three year plan (1) Not later than 30 June in each year, the Authority must develop and publish a three year forward plan for applications, proposals and types of applications and proposals on which it intends to develop standards or variations to standards. (2) In developing a three year forward plan, the Authority must consult interested persons. (3) The Authority must review and update the plan at least every 3 months. Part 3—Food regulatory measures Division 1—Applications for the development or variation of food regulatory measures Subdivision A—Overview 21 Steps in the consideration of an application The following is a simplified outline of the procedure for considering an application for the development of a food regulatory measure, or the variation of a food regulatory measure, other than a high level health claims variation. Step 1. An application is made. Step 2. The Authority decides whether to accept or reject the application. If the application is accepted, the Authority proceeds to step 3. Step 3. The Authority notifies the applicant of acceptance. Step 4. The Authority gives public notice of the application, indicating when the Authority proposes to undertake key steps in considering it. Step 5. The Authority assesses the application. The Authority may, after assessing the application, either reject it or proceed to the next step. If the application is for a new food regulatory measure or a major variation of a food regulatory measure, the next step is step 6. In any other case, it is step 7. Step 6. The Authority calls for public submissions. Step 7. The Authority prepares a draft food regulatory measure or a draft variation of a food regulatory measure, as the case requires. If the Authority has called for submissions under step 6, the Authority must have regard to the submissions in doing so. Step 8. If the application is for a minor variation, the Authority calls for submissions from the applicant and appropriate government agencies. In any other case, the Authority calls for public submissions. Step 9. If the draft is a draft standard or a draft variation of a standard, the Authority must decide whether to approve or reject it and prepare a report, having regard to any submissions made. If approved, the Authority notifies the Forum on Food Regulation and the public of the approval and proceeds to step 10. If the draft is a draft code of practice or a draft variation of a code of practice, the Authority must revoke or vary any existing code or practice and give public notice of its decision. No further steps are taken in relation to measures of this kind. Step 10. The standard or variation comes into effect after it has been considered by the Forum on Food Regulation and published. Subdivision B—Applications 22 Applications (1) A body or person may apply to the Authority for the development of a food regulatory measure or the variation of a food regulatory measure. (2) The application must: (a) be in writing; and (b) if the form in which the application is to be made is specified in guidelines made under section 23—be in the form specified; and (c) include all of the information that, under guidelines made under section 23, is to be included with the application; and (d) include each thing that, under guidelines made under section 23, is to be included with the application; and (e) identify the procedure that, in the applicant's view, applies to the consideration of the application. 23 Application guidelines Authority may make guidelines (1) The Authority may, by legislative instrument, make guidelines: (a) specifying the form in which applications for the development of a food regulatory measure, or the variation of a food regulatory measure, are to be made; and (b) specifying the information, or the kinds of information, to be included with such applications; and (c) specifying any thing, or kind of thing, to be included with such applications. Note 1: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the guidelines: see subsection 44(1) of that Act. Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the guidelines: see subsection 54(1) of that Act. (2) The Authority may only specify information, or kinds of information, under paragraph (1)(b) in relation to an application if the inclusion of that information, or information of those kinds: (a) would enable the Authority to assess the application and develop the relevant food regulatory measure, or the relevant variation of a food regulatory measure; or (b) would enable the Authority to determine whether a charge under section 146 is payable to the Authority in relation to the application. (3) The Authority may only specify a thing, or a kind of thing, under paragraph (1)(c) in relation to an application, if the inclusion of that thing, or things of those kinds, would enable the Authority to assess the application and develop the relevant food regulatory measure, or the relevant variation of a food regulatory measure. 24 Withdrawal of applications (1) An applicant may withdraw the applicant's application by giving written notice of the withdrawal to the Authority at any time before: (a) the Authority approves a draft food regulatory measure, or a draft variation of a food regulatory measure, as a result of the application; or (b) the Authority notifies the applicant that the Authority has rejected the application. (2) If the Authority receives notice of the withdrawal of an application after the applicant pays a charge under section 146, the Authority must refund to the applicant so much of the charge as is equivalent to the sum paid by the applicant but not expended from the charge, calculated in accordance with the regulations. (3) If the Authority receives notice of the withdrawal of an application after public notice of the application has been given under section 28 or 51, the Authority must give public notice that the application has been withdrawn. Subdivision C—Procedures for considering applications 25 Which procedure is appropriate? (1) The Authority must adopt the general procedure in considering an application for the development of a food regulatory measure or the variation of a food regulatory measure, unless: (a) the application is one to which Subdivision E applies (application for a minor variation of a food regulatory measure); or (b) the application is one to which Subdivision F applies (application for the development of a new food regulatory measure or a major variation of a food regulatory measure); or (c) the application is one to which Subdivision G applies (application for a high level health claims variation); or (d) the application is declared to be an urgent application for the purposes of this Part under section 95. Where an application for a high level health claims variation is included in an application for a variation of another kind (2) If a person applies for a high level health claims variation and a variation of another kind in a single application, then, for the purposes of this Act, the person is taken to have made an application for a high level health claims variation and a separate application for the other kind of variation. Subdivision D—General procedure 26 Accepting an application (1) The Authority must, within 15 business days after an application is given to the Authority: (a) accept the application; or (b) reject the application. (2) In determining whether to accept or reject the application, the Authority must have regard to the following matters: (a) whether the application complies with subsection 22(2); (b) whether the application relates to a matter that may be developed as a food regulatory measure, or that warrants the variation of a food regulatory measure; (c) whether the application is so similar to a previous application or proposal for the development or variation of a food regulatory measure that it ought to be rejected; (d) any other relevant matter. (3) If an application is rejected because it does not comply with subsection 22(2), the application must be disregarded for the purposes of determining whether a later application or proposal for the development or variation of a food regulatory measure is so similar to a previous application that the later application or proposal ought to be rejected. 27 Notice of acceptance If the Authority accepts an application, the Authority must notify the applicant immediately in writing: (a) that the application has been accepted; and (b) of the procedure the Authority will adopt in considering the application; and (c) in the case of an applicant who has applied for the development or variation of a standard and on whom an exclusive capturable commercial benefit would be conferred if the standard were made or varied in the manner sought in the application: (i) that the applicant must pay the charge under section 146 in relation to the application or, if the charge is payable in instalments, the first instalment of the charge, within 20 business days after the notification is given; and (ii) that the application will be rejected if the charge, or the first instalment of the charge, is not paid within that period; and (d) in any other case—that the applicant may, if the applicant elects to have the consideration of the application expedited, pay the charge under section 146 in relation to the application or, if the charge is payable in instalments, the first instalment of the charge. 28 Public notice of the application (1) If the Authority accepts an application, the Authority must also give public notice of the matters mentioned in subsection (2). Content of notice (2) The notice must: (a) state that the Authority has received an application for the development of a food regulatory measure or the variation of a food regulatory measure, as the case requires; and (b) state the date on which the application was received by the Authority; and (c) state the name of the applicant; and (d) give a summary of the application; and (e) state that the Authority has accepted the application; and (f) identify the procedure that the Authority will adopt in considering the application; and (g) indicate when the Authority proposes to undertake the key steps in that procedure; and (h) state how to obtain further information about the application. Period within which notice must be given (3) The notice must be given: (a) if the applicant pays a charge, or the first instalment of a charge, mentioned in subparagraph 27(c)(i) within the period mentioned in that paragraph—within 5 business days after that payment; or (b) if the applicant pays a charge, or the first instalment of a charge, mentioned in paragraph 27(d) within 20 business days after notice is given to the applicant under section 27 (the early payment period)—within 5 business days after that payment; or (c) in any other case—within 25 business days after notice is given to the applicant under section 27. Exclusive capturable commercial benefit—fee not paid (4) If an applicant: (a) who applies for the development or variation of a standard; and (b) on whom an exclusive capturable commercial benefit would be conferred if the standard were made or varied in the manner sought in the application; does not pay the charge, or the first instalment of the charge, mentioned in subparagraph 27(c)(i) within the period mentioned in that subparagraph: (c) the Authority must reject the application; and (d) the Authority need not give notice under this section. Fee to expedite consideration paid after early payment period (5) If an applicant pays a charge, or the first instalment of a charge, mentioned in paragraph 27(d) after the end of the early payment period, the Authority must, within 5 business days after that payment, again give public notice of the matters mentioned in subsection (2), including an update on when the Authority now proposes to undertake the key steps in the procedure. 29 Assessing the application (1) If the Authority accepts an application, the Authority must assess the application. (2) In assessing the application, the Authority must have regard to the following matters: (a) whether costs that would arise from a food regulatory measure developed or varied as a result of the application outweigh the direct and indirect benefits to the community, Government or industry that would arise from the development or variation of the food regulatory measure; (b) whether other measures (available to the Authority or not) would be more cost‑effective than a food regulatory measure developed or varied as a result of the application; (c) any relevant New Zealand standards; (d) any other relevant matters. Note: See also section 18, which sets out the objectives of the Authority in developing food regulatory measures and variations of those measures. 30 Preparing a draft variation (1) After assessing an application, the Authority must: (a) prepare in writing a draft food regulatory measure or a draft variation of a food regulatory measure; or (b) reject the application. (2) If: (a) the Authority prepares a draft food regulatory measure or a draft variation of a food regulatory measure as a result of an application; and (b) the draft measure or draft variation differs from that sought in the application, or was not sought in the application at all; the Authority must give the applicant notice in writing of that fact and state in the notice that the Authority will call for submissions for the purpose of assessing the draft measure or draft variation. (3) The Authority must not give public notice under section 31 within 10 business days immediately after notice is given to the applicant under subsection (2) of this section. 31 Calling for submissions (1) After preparing a draft food regulatory measure or a draft variation of a food regulatory measure as a result of an application, the Authority must give public notice of the matters mentioned in subsection (2). (2) The notice must: (a) state that the Authority has prepared a draft food regulatory measure or a draft variation of a food regulatory measure, as the case requires; and (b) include: (i) a copy of the draft food regulatory measure or draft variation; and (ii) a summary of the results of the Authority's assessment of the application; or state how a copy of those documents can be obtained; and (c) call for written submissions, for the purpose of the Authority's consideration of the draft measure or draft variation, to be given to the Authority within the period specified in the notice (the submission period). 32 Alternative steps to be followed (1) If an application results in the development or variation of a standard, the Authority must follow the steps set out in sections 33 and 34. (2) However, if an application results in the development or variation of a code of practice, the Authority must follow the steps set out in section 35. 33 Approving the draft standard or draft variation (1) After the submission period, the Authority must: (a) do one of the following: (i) approve the draft standard or draft variation; (ii) approve the draft standard or draft variation subject to such amendments as the Authority considers necessary; (iii) reject the draft standard or draft variation; and (b) prepare a report under this section. Note 1: The Board must not delegate its powers to act on behalf of the Authority under paragraph (a)—see section 150. Note 2: The draft does not take effect except in accordance with a notice under section 92—see section 93. (2) The Authority must have regard to all submissions made during the submission period in making a decision under subsection (1). (3) The report must include each of the following: (a) the reasons for initially accepting the application; (b) a summary of the results of the Authority's assessment of the application; (c) a summary of the submissions received by the Authority in relation to the draft standard or draft variation; (d) the Authority's response to the issues raised in those submissions; (e) whether the draft standard or draft variation was amended after submissions were made and, if so, the reasons for those amendments; (f) the Authority's reasons for approving or rejecting the draft standard or draft variation; (g) a copy of the draft standard or draft variation on which submissions were received; (h) if the draft standard or draft variation was amended after submissions were made—a copy of the draft standard or draft variation as amended; (i) if applicable—a Regulation Impact Statement. 34 Notifying the Forum on Food Regulation (1) If the Authority approves a draft standard or a draft variation of a standard, the Authority must, within 10 business days after the approval: (a) give the Forum on Food Regulation: (i) a written notification of the approval; and (ii) a copy of the report prepared by the Authority under section 33; and (b) give public notice of the approval, together with information about where further information about the draft standard or draft variation may be obtained; and (c) publish a notice on the Authority's website that states: (i) that the draft standard or draft variation has been approved; and (ii) that the Forum has been notified that the draft standard or draft variation has been approved; and (iii) that the Forum may request the Authority to review the draft standard or draft variation under Division 3; and (iv) where further information about the draft standard or draft variation may be obtained. (2) If the Authority has notified the Forum on Food Regulation under subsection (1), the Forum may direct the Authority to give the Forum such information as the Forum reasonably requires for the purpose of assisting the Forum to make a decision about the draft under Division 3. Note: The process followed by the Forum on Food Regulation after receiving notification under this section is set out in Division 3. 35 Alternative to steps set out in sections 33 and 34—approving the draft code of practice or draft variation (1) After the submission period, the Authority must: (a) approve the draft code of practice or draft variation; or (b) reject the draft code of practice or draft variation. Note: The Board must not delegate its powers to act on behalf of the Authority under this subsection—see section 150. (2) If another code of practice would be superseded, in whole or in part, by the Authority's decision under subsection (1), the Authority must: (a) revoke the other code of practice (if it would be wholly superseded); or (b) vary the other code of practice (if it would be partly superseded). (3) The Authority must give public notice of its decision. (4) The notice must: (a) specify the date of effect of the decision; and (b) state how to obtain further information about the decision and the reasons for it. (5) The Authority must also give written notice of its decision to the Forum on Food Regulation. Subdivision E—Modification of general procedure for minor variations 36 Application of Subdivision This Subdivision applies to an application for the variation of a food regulatory measure that, if made, would not directly or indirectly: (a) impose, vary or remove an obligation on any person; or (b) create, vary or remove a right of any person; or (c) otherwise alter the legal effect of the measure. Note: For example, a variation would fall within this class if its only effect would be: (a) to correct a typographical error; or (b) to update a reference to another document; or (c) to change a cross‑reference within a food regulatory measure; or (d) to omit provisions of a food regulatory measure that have ceased to have effect. 37 Adopt the general procedure with the modifications set out in this Subdivision The Authority must adopt the general procedure in considering the application, with the modifications set out in this Subdivision. 38 Modification of step set out in section 29 Paragraphs 29(2)(a) and (b) do not apply. Note: Paragraphs 29(2)(a) and (b) require the Authority to do a cost benefit analysis. This is unnecessary given the minor nature of the variation. 39 Modification of step set out in section 30 Subsections 30(2) and (3) do not apply. Note: Subsections 30(2) and (3) deal with the case where the draft variation differs from that sought in the application, or was not sought at all. 40 Modification of step set out in section 31 (1) Section 31 does not apply. (2) However, after preparing a draft variation of the food regulatory measure as a result of an application, the Authority must give written notice to the applicant and appropriate government agencies: (a) stating that the Authority has prepared a draft variation of a food regulatory measure; and (b) including: (i) a copy of the draft variation; and (ii) a summary of the results of the Authority's assessment of the application; or stating how a copy of those documents can be obtained; and (c) calling for written submissions, for the purpose of the Authority's consideration of the draft variation, to be made to the Authority within the period specified in the notice (the submission period). 41 Modification of steps set out in sections 32, 33, 34 and 35 (1) Sections 32, 33, 34 and 35 do not apply. (2) However, after the submission period, the Authority must: (a) do one of the following: (i) approve the draft variation; (ii) approve the draft variation subject to such amendments as the Authority considers necessary; (iii) reject the draft variation; and (b) prepare a report under this section. Note: The Board must not delegate its powers to act on behalf of the Authority under paragraph (a)—see section 150. (3) The report must include each of the following: (a) the reasons for initially accepting the application; (b) a summary of the results of the Authority's assessment of the application; (c) the Authority's reasons for approving or rejecting the draft variation; (d) a copy of the draft variation. (4) If the draft variation is of a standard and the Authority approves the draft variation, the Authority must, within 10 business days after the approval: (a) give the Forum on Food Regulation: (i) a written notification of the approval; and (ii) a copy of the report prepared by the Authority under this section; and (b) give public notice of the approval, together with information about where further information about the draft variation may be obtained; and (c) publish a notice on the Authority's website that states: (i) that the draft variation has been approved; and (ii) that the Forum has been notified that the draft variation has been approved; and (iii) that the Forum may request the Authority to review the draft variation under Division 3; and (iv) where further information about the draft variation may be obtained. (5) If the Authority has notified the Forum on Food Regulation under subsection (4), the Forum may direct the Authority to give the Forum such information as the Forum reasonably requires for the purpose of assisting the Forum to make a decision about the draft under Division 3. Note: The process followed by the Forum on Food Regulation after receiving notification under this section is set out in Division 3. Subdivision F—Modification of general procedure for developing new food regulatory measures and major variations 42 Application of Subdivision This Subdivision applies to: (a) an application for the development of a new food regulatory measure; and (b) an application for the variation of a food regulatory measure that: (i) involves such scientific or technical complexity that it is necessary to adopt this procedure in considering it; or (ii) involves such a significant change to the scope of the food regulatory measure that it is necessary to adopt this procedure in considering it. 43 Adopt the general procedure with the modifications set out in this Subdivision The Authority must adopt the general procedure in considering the application, with the modifications set out in this Subdivision. 44 Additional step after step set out in section 29 (1) The Authority must, after assessing the application under section 29 but before undertaking the step set out in section 30, give public notice of the matters set out in subsection (2). (2) The notice must: (a) state that the Authority has assessed the application; and (b) include a summary of the results of the Authority's assessment of the application, or state how a copy of the summary can be obtained; and (c) call for written submissions on matters relevant to the application to be given to the Authority within the period specified in the notice (the submission period). 45 Matters to which Authority must have regard in making a decision under section 30 The Authority must have regard to all submissions made during the submission period in making a decision under section 30. Note: This does not limit the other matters to which the Authority must have regard in making a decision under section 30. Subdivision G—Procedure for certain variations of the Nutrition, Health and Related Claims Standard 46 Application of Subdivision This Subdivision applies to an application if: (a) the application is made for the variation of the Nutrition, Health and Related Claims Standard; and (b) the variation sought is a high level health claims variation. Note: If an application to vary the Nutrition, Health and Related Claims Standard would not involve a change to the list of high level health claims that may be made under the Standard, the general procedure applies—see Subdivisions D, E and F. 47 Accepting the application (1) The Authority must, within 15 business days after the application is given to the Authority: (a) accept the application; or (b) reject the application. (2) In determining whether to accept or reject the application, the Authority must have regard to the following matters: (a) whether the application complies with subsection 22(2); (b) whether the application is so similar to a previous application or proposal for a high level health claims variation that it ought to be rejected; (c) any other relevant matter. (3) If an application is rejected because it does not comply with subsection 22(2), the application must be disregarded for the purposes of determining whether a later application or proposal for the variation of the standard is so similar to a prev