The Board of Food Standards Australia New Zealand gives notice of the making of this standard under section 92 of the Food Standards Australia New Zealand Act 1991.

The Standard commences on 1 March 2016.

Dated 25 March 2015

Standards Management Officer, Delegate of the Board of Food Standards Australia New Zealand.

Note 1 This instrument is a standard under the Food Standards Australia New Zealand Act 1991 (Cth). The standards together make up the Australia New Zealand Food Standards Code. See also section 1.1.1—3.

Note 2 The provisions of the Code that apply in New Zealand are incorporated in, or adopted under, the Food Act 2014 (NZ). See also section 1.1.1—3.

Division 1 Preliminary

1.1.1—1 Name

This Standard is Australia New Zealand Food Standards Code – Standard 1.1.1 – Structure of the Code and general provisions.

Note Commencement: This Standard commences on 1 March 2016, being the date specified as the commencement date in notices in the Gazette and the New Zealand Gazette under section 92 of the Food Standards Australia New Zealand Act 1991 (Cth). See also section 93 of that Act.

1.1.1—2 Structure of the Code

(1) All the standards of the Code are read together as a single instrument.

(2) The standards of the Code are arranged into Chapters, Parts and a set of Schedules as shown below:

Note The Chapters cover the following material:

(a) Chapter 1:

(i) preliminary material; and

(ii) provisions that apply to all foods;

(b) Chapter 2—provisions that apply only to particular foods;

(c) Chapter 3—food hygiene (applies in Australia only);

(d) Chapter 4—the primary production and processing of food (applies in Australia only);

(e) Chapter 5—revocation of previous versions of Standards 1.1.1 to 2.10.3 and transitional matters.

Schedules 1 to 30 follow Chapter 5.

Division 2 Application and interpretation

Note Definitions that are used throughout the Code are contained in Standard 1.1.2.

1.1.1—3 Application of Code

(1) Unless this Code provides otherwise, this Code applies to food that is:

(a) sold, processed or handled for sale in Australia or New Zealand; or

(b) imported into Australia or New Zealand.

Note 1 The following provisions have not been incorporated by reference into a food standard under the Food Act 2014 (NZ):

(i) sections 1.2.1—7 and 1.2.1—14, and Standard 1.2.11 (country of origin labelling requirements);

(ii) Standard 1.4.2 (agvet chemicals);

(iii) Standard 1.6.2 (processing requirements for meat);

(iv) section 2.1.1—5 (requirement for folic acid and thiamin in bread);

(v) section 2.2.1—12 (bovine must be free from bovine spongiform encephalopathy);

(vi) Standard 2.2.2 (eggs);

(vii) subsection 2.4.2—3(2) and subsection 2.4.2—3(4) (requirement for food sold as table edible oil spreads and table margarine);

(viii) Chapter 3 (food safety standards) and Chapter 4 (primary production and processing standards).

Note 2 Standard 2.9.6 (Transitional standard for special purpose foods (including amino acid modified foods)) does not apply in Australia.

(2) Subsection (1) does not apply to wine that:

(a) has a shelf life of more than 12 months; and

(b) was bottled before 20 December 2002; and

(c) complies with all food standards in the case of Australia and all food standards in the case of New Zealand that would have applied on the date of bottling; and

(d) is labelled with a 2002 vintage date or earlier.

1.1.1—4 Application of interpretation legislation

This Code is to be interpreted in accordance with the rules of interpretation:

(a) in Australia—the Acts Interpretation Act 1901 (Cth); and

(b) in New Zealand—the Interpretation Act 1999 (NZ).

1.1.1—5 References to other instruments

(1) In this Code:

(a) a reference to an Act, including an Act of a State or Territory or of New Zealand, includes any instruments made under that Act; and

(b) a reference to the Code of Federal Regulations, or CFR, is a reference to the 2014 compilation of the United States Code of Federal Regulations.

Note In this Code, the Code of Federal Regulations is cited in the following format:
[title number] CFR § [section number]

(2) Guidelines developed by FSANZ in accordance with paragraph 13(1)(c) of the FSANZ Act are to assist in the interpretation of this Code and are not legally binding.

1.1.1—6 How average quantity is to be calculated

(1) This section applies where this Code requires an average quantity of a substance to be declared in the labelling of a food for sale, whether as a percentage or as the amount of the substance in a serving or other amount of the food.

Note The term average quantity is defined in section 1.1.2—2.

Example The Code requires the ‘average quantity’ of a variety of substances to be listed in the nutrition information about a food for sale, for example protein, carbohydrate and sugars.

(2) The average quantity is to be calculated by the manufacturer or producer using whichever of the methods in subsection (3) the manufacturer or producer considers to best represent the average quantity, taking into account any factors that would cause the actual amount of the substance in the food to vary from lot to lot, including seasonal variability.

(3) The methods are:

(a) the amount that the manufacturer or producer of the food determines, based on an analysis, to be the average amount of the substance in a serving or other amount of the food; or

(b) the calculation of the actual amount of the substance, or the calculation of the average amount of the substance, in the ingredients used for the food; or

(c) the calculation from generally accepted data relevant to that food.

1.1.1—7 Units of measurement

(1) A symbol of measurement used in this Code has the meaning assigned to it by the table in Schedule 2.

(2) If a symbol is not assigned a meaning by the table, it has the meaning assigned to it:

(a) in Australia—by the National Measurement Act 1960 (Cth); or

(b) in New Zealand—by the Weights and Measures Act 1987 (NZ).

(3) If a symbol is not assigned a meaning by the table or subsection (2), it has the meaning assigned to the symbol by the Systeme Internationale d’Unités.

(4) Where a unit of measurement is referred to in the heading of a table in this Code, the amounts specified in the table are to be measured according to those units unless a different unit of measurement is specified in relation to a particular item in the table.

1.1.1—8 Compliance with requirements for mandatory statements or words

(1) If a provision of this Code requires a warning statement or specific words to be used, the warning statement or words must be expressed in the words set out in this Code without modification.

(2) If a provision of this Code requires a statement other than a warning statement to be used:

(a) that statement may be modified; and

(b) any modification must not contradict or detract from the effect of the statement.

Division 3 Effect of variations to Code

1.1.1—9 Effect of variations to Code

(1) Unless this Code, or an instrument varying this Code, provides otherwise, if:

(a) this Code is varied; and

(b) a food was compliant for a kind of sale immediately before the variation commenced;

the food is taken to be compliant for that kind of sale for a period of 12 months beginning on the date of the variation.

(2) In this section, a food is compliant for a kind of sale if:

(a) when a labelling requirement of this Code applies to the kind of sale—the labelling of the food complies with the requirement; and

(b) when a packaging requirement of this Code applies to the kind of sale—the packaging of the food complies with the requirement; and

(c) the food complies with any provisions of this Code relating to the composition of food of that kind.

Division 4 Basic requirements

Note 1 In Australia, the Code is enforced under application Acts in each State and Territory, and under Commonwealth legislation dealing with imported food. In outline, this scheme operates as follows:

(1) The application Acts comprise a uniform legislative scheme based on Model Food Provisions that are annexed to the Food Regulation Agreement, an agreement between the Commonwealth, States and Territories. Under those Acts, a person:

(a) must comply with any requirement imposed on the person by a provision of this Code in relation to:

(i) the conduct of a food business; or

(ii) food intended for sale; or

(iii) food for sale; and

(b) must not sell any food that does not comply with any requirement of this Code that relates to the food; and

(c) must not sell or advertise any food that is packaged or labelled in a manner that contravenes a provision of this Code; and

(d) must not sell or advertise for sale any food in a manner that contravenes a provision of this Code; and

(e) must not, for the purpose of effecting or promoting the sale of any food in the course of carrying on a food business, cause the food to be advertised, packaged or labelled in a way that falsely describes the food.

(2) For paragraph (1)(e), food is falsely described if:

(a) it is represented as being of a particular nature or substance; and

(b) the Code provides a prescribed standard for such food; and

(c) the food does not comply with the prescribed standard.

(3) The relevant Acts are:

(a) Food Act 2003 (New South Wales)

(b) Food Act 1984 (Victoria)

(c) Food Act 2006 (Queensland)

(d) Food Act 2008 (Western Australia)

(e) Food Act 2001 (South Australia)

(f) Food Act 2003 (Tasmania)

(g) Food Act 2001 (Australian Capital Territory)

(h) Food Act 2004 (Northern Territory).

(4) Under the Imported Food Control Act 1992 (Cth), a person is prohibited from:

(a) importing into Australia food that does not meet applicable standards of this Code, other than those relating to information on labels of packaged food; and

(b) dealing with imported food that does not meet applicable standards relating to information on labels of packaged food.

Note 2 In New Zealand, under the Food Act 2014 (NZ) a person commits an offence if the person breaches or fails to comply with:

(a) a requirement in an adopted joint food standard or a domestic food standard;

(b) …

1.1.1—10 Requirements relating to food for sale

(1) This section applies in relation to food for sale.

Compositional requirements

(2) Subject to this section, food for sale may consist of, or have as an ingredient, any food.

(3) Food for sale must comply with any provisions of this Code relating to the composition of food of that kind (including provisions relating to the presence of other substances in food of that kind).

(4) Where a compositional requirement permits the use of ‘other foods’ or ‘other ingredients’ as ingredients, the permission does not extend to the addition of a food or a substance that is otherwise not permitted to be added to food, or to the specified food, under this Code.

(5) Unless expressly permitted by this Code, food for sale must not be any of the following:

(a) a *prohibited plant or fungus, a *restricted plant or fungus, or coca bush;

(b) if the food is for retail sale—a *novel food;

(c) a *food produced using gene technology;

(d) a food that has been irradiated;

(e) kava or any substance derived from kava.

(6) Unless expressly permitted by this Code, food for sale must not have as an ingredient or a component, any of the following:

(a) a substance that was *used as a food additive;

(b) a substance that was *used as a nutritive substance;

(c) a substance that was *used as a processing aid;

(d) in Australia—a detectable amount of:

(i) an *agvet chemical; or

(ii) a metabolite or degradation product of an agvet chemical;

(e) a *prohibited plant or fungus, a *restricted plant or fungus, or coca bush;

(f) if the food is for retail sale—a *novel food;

(g) a *food produced using gene technology;

(h) a food that has been irradiated;

(i) kava or any substance derived from kava.

Note 1 Relevant permissions for subsections (3) and (4) are contained in various standards. See in particular:

• food additives—Standard 1.3.1;
• nutritive substances—Standard 1.3.2, Standard 2.6.2, Standard 2.9.1, Standard 2.9.2, Standard 2.9.3, Standard 2.9.4, and Standard 2.9.5;
• processing aids—Standard 1.3.3;
• agvet chemical residues—Standard 1.4.2;
• prohibited plants and fungi—Standard 1.4.4;
• novel foods—Standard 1.5.1;
• food produced using gene technology—Standard 1.5.2;
• irradiated food—Standard 1.5.3;
• kava—Standard 2.6.3.

Note 2 There is an overlap between some of these categories. For example, some substances may be used as a food additive or as a nutritive substance. For such substances, there will be different provisions permitting use of the substance for different purposes.

Note 3 In some cases, a provision refers to the total amount of a substance added to a food. In these cases, the total amount applies irrespective of whether the substance was used as a food additive, used as a processing aid or used as a nutritive substance.

(7) Subsection (6) does not apply to a substance that is in a food for sale, or in an ingredient of a food for sale, by natural occurrence.

Labelling requirements

(8) If a labelling requirement of this Code applies to the sale of food, the labelling must comply with the requirement.

Information requirements

(9) If an information requirement of this Code applies to the sale of food, the information must be provided as required.

Packaging requirements

(10) If a packaging requirement of this Code applies to the sale of food, the packaging must comply with the requirement.

(11) Any packaging, and any article or material in the packaging or in contact with the food, must not, if taken into the mouth:

(a) be capable of being swallowed or obstructing any alimentary or respiratory passage; or

(b) be otherwise likely to cause bodily harm, distress or discomfort.

Example Articles or materials include any materials in contact with food, including packaging materials that contain other items such as moisture absorbers, mould inhibitors, oxygen absorbers, promotional materials, writing or other graphics.

1.1.1—11 Microbiological requirements for lot of a food

A lot of a food must not have an unacceptable level of microorganisms as determined in accordance with Standard 1.6.1.

Note For the meaning of lot, see section 1.1.2—2.

1.1.1—12 Applicable standards for importation of food

(1) The provisions of this Code relating to labelling are applicable to food that is imported with the labelling with which it is intended to be sold

(2) The provisions of this Code relating to packaging are applicable to food that is imported in the packaging in which it is intended to be sold.

(3) The provisions of this Code, other than those relating to packaging and labelling, are applicable to food that is imported.

Note This provision is relevant to the Imported Food Control Act 1992 (Cth), and the provisions of the Food Act 2014 (NZ) that relate to importation of food.

1.1.1—13 Food sold with a specified name or representation

(1) This section applies where a provision of this Code that provides that a food that is sold as a named food, whether or not the name is in quotation marks, must satisfy certain requirements (usually that the food being sold must satisfy the definition of the food in this Code).

Example The provisions in Chapter 2 headed ‘Requirement for food sold as …’, e.g.

2.1.1—3 Requirement for food sold as bread.
A food that is sold as bread must be bread.

In this example bread is the food and is not in quotation marks.

(2) If the provision specifies the name of the food in quotation marks, any requirement that must be satisfied applies only if that name is used in connection with the sale.

Note 1 The foods to which a requirement that must be satisfied applies only if the name of the food is used include: butter, chocolate, cider, cocoa, coffee, cream, decaffeinated coffee, decaffeinated instant coffee, decaffeinated instant tea, decaffeinated soluble tea, gelatine, ice cream, imitation vinegar, instant tea, iodised reduced sodium salt mixture, iodised salt, margarine, mead, milk, peanut butter, perry, processed cheese, salt, skim milk, soluble coffee, soluble tea, table margarine, tea, vinegar, white sugar, wholegrain, wholemeal and yoghurt. These are foods that are identified in quotation marks in provisions to which subsection (1) applies.

Example A cocoa-based confectionery that is not sold as a chocolate confectionery or a water-based beverage that contains fruit but is not sold as fruit juice, need not satisfy a requirement about chocolate or fruit juice.

(3) If the provision specifies the name of the food without quotation marks, any requirement that must be satisfied applies to any sale in which a purchaser is likely to assume that the food being sold was the food.

Note A requirement that must be satisfied applies to any sale in which a purchaser is likely to assume that the food being sold is, for example: ale, beer, brandy, bread, cheese, condensed skim milk, condensed whole milk, dried skim milk, dried whole milk, edible oil spread, electrolyte drink, electrolyte drink mix, evaporated skim milk, evaporated whole milk, fermented milk, fruit drink, fruit juice, fruit wine, fruit wine product, jam, lager, liqueur, meat pie, pilsener, porter, sausage, spirit, stout, table edible oil spread, vegetable juice, vegetable wine, vegetable wine product, wine and wine product. These are foods that are not identified in quotation marks in provisions to which subsection (1) applies. Use of the name could be an element of a representation about the identity of the food.

Example Bread sold as sourdough; a cheese or processed cheese sold as cheddar or processed cheddar; or a sausage sold as bratwurst. Jam may be sold as conserve.

Example 2 Steak pie or lamb pie must contain no less than 250g/kg of meat flesh.

(4) If a food name is used in connection with the sale of a food (for example in the labelling), the sale is taken to be a sale of the food as the named food unless the context makes it clear that this is not the intention.

Examples

Section 2.7.2—3, relating to beer, does not prevent the use of ‘ginger beer’ in relation to the soft drink. Such a product is not beer for the purposes of the Code.

Section 2.1.1—3, relating to ‘bread’, does not prevent the use of ‘shortbread’ or ‘crispbread’ in relation to those foods, or ‘unleavened bread’ to describe the food made without the yeast that would be required for it to be sold as ‘bread’. Those products are not bread for the purposes of the Code.

The context within which foods such as soy milk or soy ice cream are sold is indicated by use of the name soy; indicating that the product is not a dairy product to which a dairy standard applies.

1.1.1—14 Other requirements relating to food

Requirements for handling of food

(1) If this Code sets requirements for the handling of food, the food must be handled in accordance with those requirements.

Note This subsection relates to requirements in Chapter 3 and has application in Australia only.

Requirements for record-keeping

(2) If this Code sets requirements for record-keeping in relation to food, those requirements must be complied with.

1.1.1—15 Identity and purity

(1) This section applies to the following substances when added to food in accordance with this Code, or sold for use in food:

(a) a substance that is *used as a food additive;

(b) a substance that is *used as a processing aid;

(c) a substance that is *used as a nutritive substance;

(d) a *novel food.

(2) The substance must comply with any relevant specification set out in Schedule 3.

1.1.1—16 Use of asterisks to identify terms defined in subsection 1.1.2—2(3)

(1) Many of the terms in this Code are defined in subsection 1.1.2—2(3).

(2) Most of the terms that are defined in subsection 1.1.2—2(3) are identified by an asterisk appearing at the start of the term: as in ‘*carbohydrate’.

(3) An asterisk usually identifies the first occurrence of a term in a section (if not divided into subsections), subsection or definition. Later occurrences of the term in the same provision are not usually asterisked.

(4) Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.

(5) If a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision.

(6) The following basic terms used throughout the Code are not identified with an asterisk:

Terms defined in subsection 1.1.2—2(3) that are not identified with asterisks