1 William Street Brisbane GPO Box 46 Brisbane Queensland 4001 Australia
Business Centre 13 25 23
Website www.daf.qld.gov.au
ABN 66 934 348 189
Department of
Agriculture and Fisheries Our ref: CTS 06055/22 Your ref: A847334
Mr Chris Whiting MP
Chair
State Development and Regional Industries Committee
sdric@parliament.qld.gov.au
Dear Mr Whiting
Thank you for your letter of 5 April 2022 regarding the Food (Labelling of Seafood)
Amendment Bill 2021 (the Private Member’s Bill).
Queensland Health and the Department of Agriculture and Fisheries (DAF) have agreed that
Queensland Health will, in consultation with DAF, provide the written briefing addressing the
Committee’s questions. This reflects the fact that Queensland Health is the agency
responsible for the Food Act 2006, which would be amended by the Private Member’s Bill.
DAF acknowledges that seafood (and other food) sold in retail outlets is already subject to
country-of-origin labelling requirements under Australian Consumer Law. While these
requirements do not apply to food sold “ready to eat”—such as in retail dining
establishments—businesses may choose to include this information on their menus, or to
provide the information to customers on request.
DAF recognises the importance of supporting local seafood producers and promoting and
adequately marketing the fact locally-caught seafood is available in food service outlets.
To this end—among other initiatives—DAF continues to support the seafood industry by
partnering in campaigns including: ‘Ask for Queensland seafood’; #eatqld; and ‘The Great
Australian Seafood – Queensland’. DAF also ensures Queensland seafood is harvested
sustainably via the implementation of the Sustainable Fisheries Strategy 2017-2027. These
measures help Queensland businesses attract a premium for their products as trusted
suppliers.
Department of Agriculture and Fisheries Page 2 of 2
It is noted food service is a diverse and important part of the seafood supply chain. It is
dominated by small businesses, many of which have been impacted by restrictions due to
the Novel Coronavirus (COVID-19) pandemic. Mandating seafood origin labelling in food
service will increase the regulatory burden on these entities, and compliance costs could be
significant. For example, menus would need to change continually to reflect changes in
seafood sources arising from seasonal availability constraints and other factors.
In addition to this increased regulatory burden, it is noted the potential for unintended
repercussions in terms of how food service retailers source their seafood needs to be
considered when assessing the Private Member’s Bill.
Yours sincerely
Robert Gee
Director-General
Department of Agriculture and Fisheries
Briefing on matter - Food (Labelling of Seafood) Amendment Bill 2021
Potential issues or complexities associated with provisions in the Bill
The proposed amendment of the Food Act 2006 by the Food (Labelling of Seafood) Amendment Bill 2021 (the Bill) may be inconsistent with the Food Regulation Agreement (FRA) as such amendments are only permitted for limited purposes and as a temporary measure.
The FRA is an inter-governmental document signed by all Australian governments in November 2000 committing to a national system of food regulation. One of the objectives of the FRA is to provide a consistent regulatory approach across Australia.
The inconsistency is discussed in more detail in the section below on How the Bill aligns with the existing legislative framework for food labelling and the regulation of that framework.
The proposed requirement, if introduced, would require compliance monitoring and enforcement by Queensland Health (Public Health Units in Hospital and Health Services) noting that labelling and compositional requirements in the Food Act 2006 is a matter for the State. This may potentially divert resources away from public health and safety priorities.
Information on work undertaken by the department on mandatory seafood labelling and the outcome of that work
The seafood industry has been lobbying for country of origin labelling (CoOL) of seafood in restaurants and takeaway food premises since the late 2000s. Other stakeholders, such as retailers and hospitality groups, have previously opposed similar changes regarding seafood labelling.
The Review of Food Labelling Law and Policy in 2011 (Blewett Review) recommended against extending CoOL to foods sold in restaurants. As a consumer values issue, the Blewett Review observed that such issues be self-regulated and industry initiated, sitting outside the current food regulatory system. Importantly, the Blewett Review also recommended the appropriate regulator for consumer values issues to be the Australian Competition and Consumer Commission (ACCC), and/or the state and territory Fair Trading bodies, relying on their ‘misleading or deceptive’ provisions.
In 2014, the Senate Rural and Regional Affairs and Transport References Committee Inquiry (the Senate Inquiry) into the labelling of seafood and seafood products, recommended that the exemption regarding CoOL for cooked or pre-prepared seafood, sold by the food services sector, be removed from the Australia New Zealand Food Standards Code (the Code).
Briefing on matter Food (Labelling of Seafood) Amendment Bill 2021
Briefing on matter - Food (Labelling of Seafood) Amendment Bill 2021 Page 2
A Federal Bill was introduced in 2015 that proposed amending the Food Standards Australia New Zealand Act 1991 to provide a standard which would require fish sold for immediate consumption to be labelled according to existing CoOL requirements. However, it was rejected by the Senate in August 2015.
A number of Australian jurisdictions have undertaken extensive work exploring CoOL by fish retailers, but only the Northern Territory Government has introduced legislation requiring CoOL on seafood prepared for immediate consumption. In the Northern Territory it is mandated as a condition of retail fish licences required under fisheries legislation.
Queensland does not license retail fish retailers under its fisheries legislation.
How the Bill aligns with the existing legislative framework for food labelling and the regulation of that framework
CoOL requirements are no longer the responsibility of food regulators in Australia. This approach reflects modern regulatory principles where the hierarchy of regulatory oversight for consumer values issues more appropriately sits with regulators such as the ACCC. This is illustrated in Appendix 1 – Figure 1 (Source: Labelling Logic – The Final Report of the Review of Food Labelling Law and Policy).
In 2016, the Australian Government introduced a new CoOL Framework. In this framework, CoOL requirements in the Code were removed and were included in the Australian Consumer Law (the ACL) through the introduction of the Country of Origin Food Labelling Information Standard 2016 (the ACL Information Standard).
The ACL Information Standard essentially replicates the former requirements of Standard 1.2.11 – Information requirements – Country of Origin Labelling of the Code (except for the specific requirement to provide CoOL for food for sale to caterers). Implementation of the new ACL Information Standard meant that the former Standard 1.2.11 and associated references to CoOL in two other standards were subsequently removed from the Code.
As a result, since 1 July 2018, the ACCC has been the agency responsible for the monitoring and enforcement of CoOL requirements in Australia. In addition to enforcement, the ACCC also produces a range of educative and support material on CoOL for industry.
There is some uncertainty about whether national food regulatory arrangements allow amendment to the Food Act 2006 as proposed by the Bill. In relation to any proposed amendments of the Food Act 2006, amendments which relate to non-public health and safety issues have special requirements, per the FRA. Where a state or territory introduces its own legislation that amends a nationally adopted food standard, the new state or territory requirement must only relate to public health and safety and only apply for a period no longer than 12 months. The State or Territory Government must also then immediately make an application to Food Standards Australia New Zealand to introduce the requirement nationally in the Code under an expedited National consultation and approval process.
Furthermore, the Bill proposes to change definitions, which may be in contravention of the FRA for consistent food regulation. Due to the complexities around the application of the FRA to any proposed amendments to the Food Act 2006, the Committee should consider the legal implications of those proposed changes.
Briefing on matter - Food (Labelling of Seafood) Amendment Bill 2021 Page 3
Queensland Health’s food safety regulatory approach is risk based and intelligence driven, supporting harm minimisation, without unnecessarily placing a compliance burden on industry or restricting flexibility within the health care workforce. A specific focus continues to be the implementation of activities to support the national Foodborne Illness Reduction Strategy 2018-2021+. In particular, activities will be undertaken to respond to elevated notifications for Salmonella and Campylobacter, as well as responding to foodborne illness outbreaks and other incidents. Labelling compliance, where there is a public health and safety aspect (e.g. allergen labelling), will continue to be the priority for labelling compliance and enforcement.
Consideration will need to be given to how definitions, proposed by the Bill, interact with existing definitions in the Food Act 2006 and definitions for proposed national point-of-sale nutrition information (menu boards) requirements, particularly the definitions of menu and dining outlet.
Any other information that may assist the committee with its examination
CoOL of seafood is not considered to be a public health and safety issue and is more appropriately considered a consumer values issue.
An overarching objective of the Food Act 2006 is to prevent misleading and deceptive conduct in relation to the broader food supply, rather than specific industry or commodity sectors. Provisions exist in the Food Act 2006 to prevent misleading or deceptive conduct, including the false description of food, however, these are normally only used in relation to food safety matters. It is open to a food business to voluntarily choose to promote Australian seafood on their menus or signage and consumers can ask for such information. In circumstances where a food business was alleged to have mis-labelled seafood a complaint could be made to the Queensland Office of Fair Trading for investigation.
It is noted, the proposed requirements may not be supported by all stakeholders, particularly the food service and catering sector, and in the absence of a cost benefit analysis
From a compliance perspective, it is understood testing of seafood, to determine the origin of the seafood, is not currently routinely available nor cost effective. Testing may also not be conclusive in its findings and not suitable for industry compliance purposes or government enforcement purposes.
Seafood retailers may potentially need to implement quality assurance requirements to effectively manage their due diligence obligations for ensuring the CoOL of seafood they sell is consistently accurate.
Briefing on matter - Food (Labelling of Seafood) Amendment Bill 2021 Page 4
Appendix 1.
Figure 1. Food Labelling Issues Hierarchy