THE DEVELOPMENT OF NATIONAL FOOD STANDARDS
Within Australia’s federal system, the regulation of food standards has been the responsibility of the states and territories. This resulted in significant differences between jurisdictions with associated compliance costs for producers and manufacturers of food. Since 1908 both federal and state governments have perceived the lack of uniform food safety laws as a policy problem and have, since that time, been attempting to develop a system of uniform Australian food laws. Between 1910 and 1927 there were four Australian conferences that commenced the work of developing uniform food standards (Cumpston 1989 p 422). Eventually, the National Health and Medical Research Council (NHMRC) became responsible for developing national food standards (Reynolds 2004 p 89). However, the adoption of these standards, in part or in whole, by the states was discretionary.
In 1991 a significant step was taken in the process of developing uniform laws in the form of the Commonwealth National Food Authority Act. This legislation established a statutory authority, the National Food Authority (NFA) and gave effect to the National Food Standards Agreement. The NFA, subsequently renamed the Australia New Zealand Food Authority (ANZFA) and now the called Food Standards Australia New Zealand (FSANZ), was established as an independent and expert organisation and it had responsibility for the development, variation and review of food standards. The role of the NFA was made possible through the National Food Standards Agreement under which the Australian, state and territory governments accepted that the states and territories would adopt, without variation, food standards that had been recommended by the NFA and ratified by the National Food Standards Council, now called the Australia New Zealand Food Standards Council (ANZFSC). Further, under the agreement there was also an acceptance that no food standard would be developed or amended unless in accordance with the agreement (NFA 1993 p 1, 1994 p 4).
The policy objectives of new arrangements were to:
- consolidate responsibility for domestic food standards development with a minimum number of decision making layers
- ensure uniformity between jurisdictions
- establish objectives for the development of food standards
- promote the coordination of domestic and international standards
- ensure an open and publicly accountable arrangement to allow input by all interested parties and provide for public hearings where appropriate
- retain the involvement of the states and territories in standards development and administration.
- ensure uniformity between jurisdictions
The national food standards are embodied in the Australian Food Standards Code (now the Australia New Zealand Food Standards Code), the primary national legislative instrument, and are automatically adopted by reference into state and territory legislation (NFA 1994 p 5, Industry Commission 1995 p 7). The Code contains requirements on food manufacturers and importers pertaining to food description, composition, ingredients, additives, labelling and packaging.
The significance of this achievement is better understood when it is considered that the regulatory framework for food and food safety in Australia:
… is complex and fragmented and involves a large number of agencies and legislation spread across three spheres of government. Approximately 150 Acts and associated regulations control food or agrifood businesses in Australia … In addition, there are over 90 separate national food product standards. These laws and standards are developed, administered and/or enforced by numerous Commonwealth departments and statutory bodies, over 40 State and Territory agencies and departments and over 700 local governments.
THE PROBLEM OF NON-UNIFORM FOOD HYGIENE REGULATION
In 1994 the NFA’s attention turned to food hygiene; that is, the standards associated with food handling, processing, food premises standards and related environmental hygiene factors. It was seen as important to ensure that there was a consistent approach by government in its food safety initiatives across the entire food chain from producer to consumer (ANZFA 1996 p 3) and is often referred to as ‘paddock to plate’ (other similar policy catchphrases include ‘farm to fork’ and ‘boat to belly’). As was explained in Chapter 1, differences in regulatory requirements between jurisdictions are often perceived by policy makers as a problem and this was evident in food regulation. The lack of uniform food hygiene standards was seen to be a problem from both the economic and public health perspectives. From the economic perspective there were concerns that varying hygiene standards could affect the potential of Australian and New Zealand food exports and the image, or marketing, of export food:
The food industry is one of the largest industry sectors in Australia and New Zealand. Both countries have high expectations of their industries export potential, especially into the Asian region. The main emphasis of export initiatives is the image of Australian and New Zealand food products as ‘clean and green’.
The public health concerns related to the risks posed by microbiological contamination and other environmental contaminants including pesticide residues (NFA 1994 p 3). Food poisoning in particular was identified:
The incidence of food poisoning is increasing rapidly worldwide and is a significant public health issue for Australia and New Zealand. This is not an apparent increase in food poisoning due to improved reporting, but a real increase resulting from recent significant changes in population and food consumption patterns.
The ANZFA stated that 11,500 consumers contracted food-borne illnesses daily in Australia which cost the community over $2.6 billion. It argued that by reducing the incidence of food-borne illness by 20% would save the Australian community $500 million (ANZFA 1999 p 3). There were also concerns about the incidence of food-related illness and its potential to harm food exports. ANZFA observed that the increasing incidence of food-borne illness was occurring as one of Australia’s largest industry sectors was ‘… poised to sell significantly increasing amounts of value-added food into the Asian region’ (ANZFA 1996 p 1). The cost to government of the then food hygiene regulatory system, where each state and territory developed and implemented its own hygiene standards, was estimated to be a net $18.6 million, while $337 million went in compliance costs for small business (ANZFA 1999 p 3).
The ANZFA was also concerned about the impact of the new food safety standards incorporating food hygiene standards on the small-business sector in Australia which consisted of 131,500 businesses and turnover of $52 billion in 1996–97 (ANZFA 1999 p 3). However, the ANZFA stated that the adoption of its proposed national standard would remove the failings of the state and territory hygiene regulations, which lacked national consistency, relied on inspections and did not promote a preventative approach. Moreover, the regulations needed to be brought up to date in some states and territories, and were not consistent with international best practice or the standards of Australia’s major trading partners (ANZFA 1999 p 3). Importantly, the Authority stated that:
The Australian community, including consumers, industry and government, will benefit from a reduction in the incidence of food-borne illness through lower healthcare costs, less absenteeism, improved business productivity, increased competitiveness on world markets and a reduction in business failure and associated costs, including civil litigation.
THE POLICY RESPONSE
Initial proposals to reform food hygiene regulations in Australia focused on developing a package comprising a nationally consistent food hygiene standard supported by codes of practice and guidelines (NFA 1994 p 5, ANZFA 1996 p 6). The aim of the reform was to remove unnecessary prescriptiveness and, instead, follow international trends using a preventative approach based on risk analysis (ANZFA 1996 p 6). In practice, the preventative approach involved the development of food safety plans by food businesses, ensuring that food handlers receive appropriate training (NFA 1994 pp 18–19). The development of a food safety plan requires:
… the systematic identification of hazard points in the production, processing, and sale of food, and the implementation of risk avoidance, risk minimisation and risk management strategies in respect of these identified hazards.
Regulators would have to be satisfied that food business owners had identified all possible hazards and the means of control for these hazards and not simply require compliance with end-product standards (ANFA 1996 p 6). The NFA argued that there would be a subsequent improvement in food handling practices within the food industry and the reform would be consistent with:
- current government policy which is seeking to increase high value added exports by identifying and removing impediments at government and industry level, encouraging best practice in the food industry and enhancing the clean food image of Australian products
- the need for reduction of the reported incidence of food-borne illness in Australia
- trends in food hygiene reform in the EU [European Union], the United Kingdom and Canada.
- the need for reduction of the reported incidence of food-borne illness in Australia
Subsequently, it was argued that the new approach to food hygiene regulation would remove ‘over regulation’, which took responsibility away from industry and often created a culture of meeting bare minimum requirements in food safety, and increase consumer confidence in food safety (ANZFA 1996 pp 5–6). In July 2000, the ANZFSC agreed to the adoption of three food safety standards into the Australia New Zealand Food Standards Code to replace existing state and territory hygiene regulations:
These standards were subsequently gazetted, with a commencement date of 6 months before commencement, and it was stated by the Authority that consistent implementation of the standards across Australia would remove existing regulatory duplication and overlap between the states and territories. Significantly, Standard 3.2.1 (Food Safety Programs) was held in abeyance by the ANZFSC and a study was undertaken to assess the cost and feasibility of a mandatory food safety program requirement (ANZFA 2000 p 2). This action was consistent with the Council of Australian Governments (COAG) guidelines adopted in 1995 for standard setting, the objectives of which were to ensure that new standards do not impose excessive requirements on business.
The aim of any national standards setting process should be to achieve minimum necessary standards, taking into account economic, environmental, health and safety concerns.
Significantly, one objective of ANZFA’s reform of food hygiene regulation was to remove ‘a culture of meeting bare minimum requirements in food safety’ whereas COAG required that national standards ‘should achieve minimum necessary standards’. The COAG guidelines also require regulators to ‘… identify the need for regulation and to quantify the potential benefits and costs of regulation …’ (FSANZ 2006a).
The Australia and New Zealand Food Regulation Ministerial Council (ANZFRMC), chaired by the Parliamentary Secretary for Health and Ageing, is the body that oversees the food regulatory system in Australia and New Zealand. The ANZFRMC comprises health and food ministers from the Australian and New Zealand governments and the governments of the Australian states and territories (however, it must be remembered that the food safety standards do not apply to New Zealand). In relation to food safety management and specifically food safety programs, there are ministerial policy guidelines. These guidelines contain a set of five policy principles in which the management of risk seems to be paramount, although the third principle introduces the notion of benefits and costs (see Box 21.1).
BOX 21.1 FOOD SAFETY POLICY PRINCIPLES
The ANZFRMC, seemingly consistent with the concept of basing food safety requirements to the risk posed, determined that a strong case existed for Food Safety Standard 3.2.1 Food Safety Programs to be modified to include the following sectors:
- food service, whereby potentially hazardous food is served to vulnerable populations;
- producing, harvesting, processing and distributing raw oysters and other bivalves;
- catering operations serving food to the general public; and
- producing manufactured and fermented meat.
- producing, harvesting, processing and distributing raw oysters and other bivalves;
These high-risk sectors are businesses in which potentially hazardous food is served to vulnerable populations. These include those people in care at hospitals and nursing homes, businesses catering to the general public, the supply chain connected with raw oysters and other bivalves, and producers and manufacturers of fermented meat. These standards were aimed at reducing the risk of food-borne illness by requiring food businesses to have food safety programs that identified the food hazards likely to occur within the business and the controls that would be put in place to manage these identified hazards (FSANZ 2006b p 42).
The Council also determined that where food businesses are required by law to have a food safety program, they could either implement the provisions of the standard or a food safety management system equivalent to that contained in the Standard. The FSANZ continued to work on the food safety program standard and in 2005–06 finalised standards for two of the four high-risk business sectors identified by the Ministerial Council in 2003.
On 5 October 2006 Standard 3.3.1 Food Safety Programs for Food Service to Vulnerable Persons was included into the Australia New Zealand Food Standards Code with a commencement date from 5 October 2008 at which time food safety programs will be mandatory for businesses providing food service to vulnerable people. It should be noted that this standard only applies to food intended for six or more vulnerable persons.
THE PROBLEMS OF UNIFORM APPLICATION AND IMPLEMENTATION
Most states and territories adopted by reference the three mandatory food safety standards over a period of time; however, in relation to the voluntary standard on food safety programs, some states wanted to implement the requirement for food safety programs in their jurisdictions whilst others wanted to await the outcome of the assessment and feasibility study. Significantly, this standard is the only one that is based on actively implementing a risk management approach; that is, risk-based food safety programs by food businesses. In an effort to minimise the fragmentation of food safety program requirements between jurisdictions, ANZFSC adopted Standard 3.2.1, in the form of a standard with voluntary implementation by jurisdictions (ANZFA 2000 p 2). In other words, if jurisdictions wished to proceed and introduce food safety programs then they could do so based on the provisions of the Standard 3.2.1 Food Safety Programs.
In some ways this decision came too late. By that time Victoria had already adopted food safety programs into legislation due to the outbreaks of food-borne illnesses in late 1996 and in early 1997. This resulted in the government initiating the Food (Amendment) Act 1997 (Vic) which required the development of food safety programs by all food business owners (Smith 2001 p 117). The Victorian Government’s actions are consistent with the way in which policy problems often come onto the agenda as a result of a focusing event (see Chapter 1). The government attempted to foreshadow the national standard for food safety programs and, in doing so, attempted to phase in the requirement for food safety programs so that by the end of 2000 all businesses would have a food safety program. There was also an attempt to categorise food businesses on the basis of public health risk. Class A food businesses were seen to be the highest risk category as they provided food to vulnerable groups such as the elderly and the very young. Consequently, these businesses were required to comply with the earliest timeline. The other classes (B, C and D) reflected risks associated with the type of food sold, whether it was potentially hazardous food, packaged or non-packaged and whether it would be cooked prior to consumption. Further, the legislation required local government to assess and approve the programs and ensure that programs implemented in each food business were adequate (Smith 2001 pp 117–18).
The legislation in Victoria requires that those businesses, categorised as Class A, providing food services in care facilities to vulnerable populations, must have a food safety program. On the surface it would seem that Standard 3.3.1 Food Safety Programs for Food Service to Vulnerable Persons is consistent with the Victorian requirements. However, as has been noted, the standard only applies to those businesses that process or serve potentially hazardous food to six or more vulnerable persons. In the FSANZ’s Final Assessment Report (2006c) for the proposed standard there is no explanation as to why the application of this standard is only to six or more vulnerable people despite the stated intent of the standard being to improve the safety of the food consumed by vulnerable people while they are being cared for in these facilities. FSANZ did state, however, that the quantity of food rather than the frequency of its preparation was the criterion (FSANZ 2006c pp 10, 12).
There are other limitations or qualifications placed on the application of the standard, including that it would:
- apply for food businesses only where the principal activity is to process food for service to vulnerable people in a care facility. The Standard is silent as to the definition of principal activity and who would establish the principal activity and confirm compliance with the legislation
- not apply to clients of drug and alcohol rehabilitation centres as the Ministerial Policy Guidelines were not ‘specific’ on whether clients of these types of facilities were considered vulnerable to food-borne illness or immuno-compromised
- not apply on occasions when the food business is providing food for vulnerable people at a fund raising event
- not apply to family day care refers to care for children in a person’s private home as the costs for businesses to implement a food safety program outweighed the benefits due to the small number of children being cared for in each facility.
- not apply to clients of drug and alcohol rehabilitation centres as the Ministerial Policy Guidelines were not ‘specific’ on whether clients of these types of facilities were considered vulnerable to food-borne illness or immuno-compromised
Clearly, the application of the new standard has been limited and this has been further reinforced through the narrower definition of ‘vulnerable person’ as persons who are in care in a facility listed in the Schedule of the Standard, or are clients of a delivered meals organisation (FSANZ 2006c p 2). In their National Risk Validation Project, Food Science Australia and Minter Ellison Consulting (2002 p 2) confirmed that the high-risk food businesses ranked in order were:
1. food service for sensitive populations
2. producers, harvesters, processors and vendors of raw ready to eat seafood
3. catering operations serving food to the general population
In this project the term ‘sensitive populations’ was used and these populations included the aged, ill, immuno-compromised, and pre-school children (Food Science Australia & Minter Ellison Consulting 2002 p 44) which would include clients in drug and alcohol rehabilitation centres, children in family day care and the aged in a fund-raising event. Further, it was reported that there was an increased susceptibility of young children to some infections including rotavirus, and that a review of food-borne illness outbreaks showed more than half the total number, 65 outbreaks, occurred in a mass-catering setting. Of these 65, 41 were associated with commercial operations, 11 institutional, and 13 with non-commercial operations (Food Science Australia & Minter Ellison Consulting 2002 p 32). Further, for each of the high-risk food industries an analysis indicated that the costs of food safety programs were outweighed by the benefits and the community would be better off as a result of mandatory food safety programs (Food Science Australia & Minter Ellison Consulting 2002 p 8). These findings tend to indicate a need to broaden the application of food safety programs rather than work within what seems to be a narrow interpretation of the Ministerial Policy Guidelines.
FUTURE DIRECTIONS FOR POLICY DEVELOPMENT
The use of a risk management principle to underpin the development and approach to the food safety program standard will require the development of a number of guidelines which will outline the intent and the way in which the Standard is to be interpreted and enforced by both food authorities and their officers. The selective application of the standard has already demanded the development of guidelines to interpret application criteria and definitions within the Standard; for example, principle activity. If uniformity of regulatory requirements is one of the aims of the food safety standards then will the guidelines need to prescribe the requirements? Are guidelines prescriptive policy instruments, or is there a need for reworking the standards? Although the states and territories have agreed to adopt the food safety standards this does not extend to guidelines and advisory information. The reliance on guidelines will become increasingly important, particularly as the food safety standard is implemented into each state and territory, and there will be an increasing need for guidance and training of the officers who will be charged with its day-to-day implementation and enforcement. This training and professional development will need to be continuous.
CONCLUSION
The objectives of the food safety reforms are to provide nationally consistent, efficient and cost-effective regulatory arrangements for the safe production and handling of food. However, there is a tension between policy principles in government. Should there be a culture of commitment to food safety in the food industry that works above minimal standards set by legislation? Larger businesses with subsequent access to larger amounts of resources generally tend to aim for higher standards and seek accreditation under recognised international standards. These standards embrace principles of continuous improvement and have become important in competing in the global marketplace. In the case of small business the imperative is commercial survival and governments are attempting to reduce the burden of regulation, which means minimal legislative standards. The development of national food safety standards has required that a distinction is made between the relative capacities of larger and smaller food businesses, and between optimal standards and minimal standards. Despite the catch-cry of risk management, the development of the food safety program standard has shown that the scope of the standard has been narrowed. Subsequently, the standard has not been uniformly applied across the business sector. Some businesses must develop a food safety program and have it audited while others do not, despite providing services to the same population group deemed vulnerable, or in other words, at risk.
The development of food safety standards that are adopted by the states and territories is a policy problem when states ‘extend’ the requirements beyond the standard. An example of this is that Victoria and Queensland are the only states that have required food safety supervisors under their legislation. Should the concept of uniformity (or consistency) apply only to the developed food safety standards or should it also apply to regulatory requirements? Different regulatory requirements provide the potential for inconsistency as there will be individual perceptions of priority, and in emphasis, by those charged with enforcing regulatory requirements.
Although the development of the national food safety standards is to be applauded, there is still a policy problem in achieving consistency in the implementation and enforcement of standards and other regulatory requirements. There is a need for a level of prescription on the part of enforcement agencies so as to provide certainty for the food industry. However, there must also be a degree of discretion in risk assessment and in enforcement action.
