EXPLANATORY NOTES

Imported Food Control Amendment (Risk Foods) Order 2017

These Explanatory Notes provide an explanation of the proposed legislative amendments in the Imported Food Control Amendment (Risk Foods) Order 2017 (the Amendment Order). These notes are to be read with the Proposals for changes to the inspection and analysis of imported foods – May 2017.

Purpose

The purpose of the Amendment Order would be to:

 classify or reclassify particular kinds of food as risk foods, so that these foods can be inspected and analysed for relevant hazards at a rate that is consistent with the risk to public health; and  identify bivalve molluscs and bivalve mollusc products (foods containing bivalve molluscs) as kinds of risk food that must be covered by a recognised foreign government certificate, so that evidence of hygienic production controls is provided for these foods.

The Amendment Order would also include some technical legislative amendments to improve the operation of the Imported Food Control Order 2001.

Background

As specified in paragraph 13(1)(l) of the Food Standards Australia New Zealand Act 1991, it is a function of Food Standards Australia New Zealand (FSANZ) to develop assessment policies in relation to imported food. FSANZ has published risk statements identifying:

- certain foods as having the potential to pose a medium or high risk to public health; and - other foods as not having the potential to pose a medium or high risk to public health.

According to regulation 9 of the Imported Food Control Regulations 1993, the Minister may classify foods as risk foods if FSANZ has advised the Minister that these foods have the potential to pose a medium or high risk to public health. These foods can then be inspected and analysed for specified hazards at a rate that is consistent with their risk to public health.

The Minister may also reclassify foods that do not have the potential to pose a medium or high risk to public health so that these foods are not risk foods. This reclassification means these foods are not subjected to unnecessary inspection, analysis and delay costs as a risk food.

Impact and Effect

The Amendment Order would classify foods as risk foods so that these foods could be inspected and analysed for particular hazards at a rate that is consistent with the risk to public health.

The Amendment Order would only have a practical effect for some foods because most of the foods that would be classified as risk foods in the Amendment Order are already classified as risk foods.

The foods for which the Amendment Order would have a practical effect are: - dried coconut and cooked crustaceans (other than prawns). The Amendment Order would reclassify these foods so that they are not risk foods and would reduce their rate of inspection and analysis; and

- dried fruits of the Capsicum genus (for example, chilli and paprika), some foods containing either cooked prawns or bivalve molluscs and prohibited plants and fungi in Schedule 23 – Prohibited plants and fungi of the Australia New Zealand Food Standards Code. The Amendment Order would reclassify these foods so that they are risk foods and would increase their rate of inspection and analysis. This increase in the rate of inspection and analysis is expected to be minimal given existing inspection and analysis requirements that apply for these foods; and

- pepper, sesame seeds and sesame seed products. The Amendment Order would reclassify these foods so that only the ready-to-eat forms of these foods would be risk foods. This represents a decrease in the inspection and analysis of these foods to reflect the foods that have the potential to pose a medium or high risk to public health. However, the practical effect of the reclassification for sesame seeds and sesame seed products is expected to be minimal as the risk food classification reflects the food currently being inspected and analysed as a risk food.

The Amendment Order would also require recognised foreign government certification for bivalve molluscs (scallops, clams, oysters) and bivalve mollusc products. This measure would ensure imported bivalve molluscs must comply with the same through-chain food safety controls as domestically produced bivalve molluscs. The Amendment Order would provide that this certification would not apply until 12 months after the Amendment Order commences. From this date, exporting countries would need to provide government certification for these foods when they are imported into Australia. If this certification is not provided then these foods could not be imported into Australia.

Details of the Imported Food Control Amendment (Risk Foods) Order 2017

Section 1 – Name This section would provide that the name of the Amendment Order is the Imported Food Control Amendment (Risk Foods) Order 2017.

Section 2 – Commencement This section provides for the commencement of the schedules to the Amendment Order. The classification of risk foods in Schedule 1 to the Amendment Order would commence four weeks after registration. This is to allow the department to publish amended inspection and analysis requirements for foods, and so industry can be prepared for these new requirements when they commence.

The government certification requirements for bivalve molluscs and bivalve mollusc products in Schedule 2 would commence 12 months after the Amendment Order commences. This is to allow sufficient time to negotiate certification arrangements with the governments of exporting countries, and therefore minimise impacts on existing trade in bivalve molluscs and bivalve mollusc products. Together, these commencement provisions would provide for an orderly introduction of new inspection and analysis requirements for imported foods. Section 3 – Authority This section would provide that the Amendment Order is made under Part 3 of the Imported Food Control Regulations 1993. This part of the regulations includes specific regulations that allow the Minister to make orders about foods.

Section 4 – Schedules This section would provide that the Imported Food Control Order 2001 (the Principal Order) is amended as set out in Schedules 1 and 2.

Schedule 1 – Amendments

Item 1 would amend the definition of beef to provide that it extends to all animals of the subfamily Bovinae (not just cattle) and therefore includes buffaloes and bison. This amendment aligns the Principal Order with Standard 2.2.1 Meat and meat products of the Australia New Zealand Food Standards Code. While the definition extends the definition of beef to include buffaloes and bison, the amendment is not expected to affect existing trade in beef products.

Item 2 would insert a note to provide further information about the animals in the subfamily Bovinae.

Item 3 would insert new definitions of pepper, processed meat, prohibited plants and fungi and raw milk cheese. This item also inserts provisions referring to the new definitions of retorted and shelf stable (see Amending item 5 below). These definitions clarify the foods classified as risk foods and are consistent with the risk advice provided by FSANZ for these foods. The definitions of pepper, processed meat and raw milk cheese are also consistent with the kinds of foods the department already inspects and analyses as risk foods. The definition of prohibited plants and fungi is included because this would be a new risk food. The new definition specifies these prohibited plants and fungi are the same as those listed in Schedule 23 –Prohibited plants and fungi of the Australia New Zealand Food Standards Code, and which are currently prohibited from sale for human consumption.

Item 4 would amend the current definition of ‘ready-to-eat’ in suborder 3(2) to clarify that a ready-to-eat food is a food that will not be further processed to reduce any pathogenic microorganisms that may be present in the food to safe levels. It is unnecessary to inspect and analyse foods for pathogenic microorganisms if they are going to be further processed and this processing will reduce the levels of the microorganism to a safe level.

Item 5 would insert new definitions of ‘retorted’ and ‘shelf stable’. These expressions have the same meaning as in the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016. The new definitions would align imported food legislation with biosecurity legislation by providing for the expressions ‘retorted’ and ‘shelf stable’ to replace the current ambiguous term of ‘canned’ in the Principal Order. Food can be packaged in a ‘can’ but may not have been retorted and may not be shelf stable. In addition, food can also be ‘retorted’ and ‘shelf stable’ but not be in a ‘can’, for example food in a retort pouch. Risk foods sometimes exclude food that is both retorted and shelf stable. This is because FSANZ has advised that these foods do not pose a medium or high risk to public health. The use of the same expressions to describe retorted and shelf stable food under both imported food and biosecurity legislation would simplify the inspection and analysis of these foods.

3 Item 6 would amend suborder 4(1) and 4(3) to more clearly classify those foods that are risk foods.

Item 7 would insert a new suborder 4(6) to classify those foods that are surveillance foods. This amendment would not have any practical effect on the inspection and analysis of foods but is necessary to specifically classify these kinds of foods for the authorities in the Imported Food Control Regulations 1993.

Item 8 would be a consequential amendment to suborder 5(1) to reflect the new numbering of risk foods in the new table in Schedule 1 to the Principal Order (see amending item 10 below).

Item 9 would be an editorial amendment to include the existing note in the correct drafting format.

Item 10 would replace the entire table in Schedule 1 of the Principal Order. Consistent with regulation 9 of the Imported Food Control Regulations 1993 the foods classified as risk foods in the new table would reflect the foods that FSANZ has advised have the potential to pose a medium or high risk to public health. The new table includes foods that are currently classified as risk foods and foods that have been reclassified.

The Amendment Order does not include dried coconut as a risk food in the new table. This would result in this food no longer being classified as a risk food and its rate of inspection and analysis being reduced. This reclassification reflects that this food does not have the potential to pose a medium or high risk to public health.

Replacing the entire table would result in the following impacts for the foods listed in the new table.

Table 1: Impacts of risk food classifications in the Amendment Order

Table Food Effect item 1 and Beef and beef The classification of beef and beef products as risk foods would 2 products have no impact as these foods are currently classified as risk foods. The extended definition of ‘beef’ (amending item 1) now means all animals of the subfamily Bovinae are risk foods. This change would not result in any impact on the foods that are currently inspected and analysed as risk foods.

3 Cassava chips This classification would have no impact as this food is currently classified as risk food.

4 Cheese in which The classification now clarifies that the cheese must be ready- growth of to-eat to be a risk food and may be either frozen or chilled Listeria when imported. This classification is consistent with the food monocytogenes that is currently inspected and analysed as risk food. can occur 5 Raw milk This classification would have no impact as this food is cheese currently classified as risk food. The new definition of raw milk cheese (amending item 3) clarifies the raw milk cheese that is Table Food Effect item currently considered a risk food and aligns with the kinds of raw milk cheese that are currently inspected and analysed as risk food. 6 Cooked chicken This classification would have no impact as this food is meat currently classified as risk food. The current exclusion of ‘canned’ cooked chicken meat has been replaced with excluding cooked chicken meat that is both retorted and shelf stable. 7 Cooked prawns The effect of this classification is to reclassify other cooked crustaceans so that they are not risk foods and to classify cooked prawns as risk foods only if they are ready-to-eat and only if they are neither retorted and shelf stable nor dried. This represents a decrease in the inspection and analysis of these foods to reflect the foods that have the potential to pose a medium or high risk to public health. 8 Cooked prawn The effect of this classification is to classify foods containing products cooked prawns as risk foods but only if they are ready-to-eat and only if they are neither retorted and shelf stable nor dried. This represents an increase in the inspection and analysis of these foods to reflect that these foods have the potential to pose a medium or high risk to public health. 9 and Certain fish and This classification would have no impact as these foods are 10 foods containing currently classified as risk foods. these fish 11 Ready-to-eat This classification would have no impact as these foods are finfish currently classified as risk foods. The classification more specifically describes the kind of finfish that is risk food by specifying the finfish must be cooked, cured or smoked and must be ready-to-eat. In addition, the classification clarifies that the risk food does not include finfish that are dried, salted, pickled, fermented or both retorted and shelf stable. The classification more accurately reflects the ready-to-eat finfish that is currently inspected and analysed as a risk food and is more consistent with the kind of finfish that has the potential to pose a medium or high risk to public health. 12 Processed meat This classification would have no impact as this food is currently classified as risk food. The classification along with the new definition of ‘processed meat’ (amending item 3) clarifies the kinds of meat that are risk food and reflects the processed meat that is currently inspected and analysed as a risk food. In addition, the classification more accurately reflects the processed meat that has the potential to pose a medium or high risk to public health.

13 Uncooked meat This classification would have no impact as this food is currently classified as risk food. 14 Marinara mix This classification would have no impact as this food is currently classified as risk food.

5 Table Food Effect item 15 Bivalve The effect of the new classification is to continue to classify molluscs and bivalve molluscs as risk foods and provide that foods bivalve mollusc containing bivalve molluscs (bivalve mollusc products) are also products risk foods. This represents an increase in the inspection and analysis of bivalve mollusc products to reflect that these foods have the potential to pose a medium or high risk to public health. 16 Pepper This classification would continue to classify pepper as a risk food but only if the pepper is ready-to-eat and dried. This represents a decrease in the inspection and analysis of these foods to reflect the foods that have the potential to pose a medium or high risk to public health. 17 Fruits of the The effect of this classification is to continue to classify paprika Capsicum genus as a risk food and classify all fruits of the Capsicum genus as (paprika, chilli) risk foods but only if they are dried and ready-to-eat. The practical effect of this classification is expected to be minimal. This is because even though all fruits of the Capsicum genus are not currently classified as a risk food, the risk food classification reflects the food currently being inspected and analysed as risk food. 18 Spice mixes The effect of this classification is to classify spice mixes containing containing pepper or fruits of the Capsicum genus as risk foods pepper or fruits but only if they are dried and ready-to-eat. This reclassification of the Capsicum potentially increases the inspection and analysis of these foods. genus However, the practical effect of this classification is expected to be minimal as even though this food is not currently classified as a risk food, the risk food classification reflects the food currently being inspected and analysed as risk food. 19 Peanuts and This classification would have no impact as this food is pistachios and currently classified as risk food and the classification reflects their products the food that is currently inspected and analysed as risk food. 20 Food containing This classification would have no impact as the classification more than 300 reflects the food that is currently inspected and analysed as risk g/kg of foods in food. item 19 21 Cooked poultry This classification would have no impact as this food is paté and poultry currently classified as risk food. livers 22 Seaweed This classification would have no impact as this food is currently classified as risk food. The classification clarifies the scientific name of the kinds of seaweed currently inspected and analysed as risk food. 23 Sesame seeds This classification would continue to classify sesame seeds and and sesame seed sesame seed products as risk food but only if they are ready-to- products eat and are not sesame oil. This represents a decrease in the inspection and analysis of these foods to reflect the foods that have the potential to pose a medium or high risk to public health. However, the practical effect of this classification is Table Food Effect item expected to be minimal as the risk food classification reflects the food currently being inspected and analysed as risk food. 24 Prohibited The effect of this classification is to classify the prohibited plants and fungi plants and fungi in Schedule 23 of the Australia New Zealand Food Standard Code as risk foods. This classification represents an increase in the inspection and analysis of these foods to reflect that these foods have the potential to pose a medium or high risk to public health. These foods are not currently permitted for sale for human consumption under food legislation and so the only practical effect of the classification would be to improve the department’s ability to detect these foods when they are imported.

Item 11 would amend Schedule 2 of the Principal Order so that it aligns with the risk food in Schedule 1 and continues to provide that brown seaweed of the Phaeophyceae class from New Zealand is a risk food.

Schedule 2 – Amendments

Item 1 would amend suborder 5(1) to provide that bivalve molluscs and bivalve mollusc products are risk foods that require foreign government certification to be imported. Section 18 of the IFC Act provides for the Secretary to determine that a certificate issued by an instrumentality of a foreign government is a recognised foreign government certificate. This kind of certification is regularly used by importing countries to ensure certain requirements have been observed in the production of the food in an exporting country.

Subparagraph 7(a)(ii) of the IFC Regulations provides for the Minister to make orders identifying risk food of a particular kind that must be covered by a recognised foreign government certificate. For this authority, the amendment to suborder 5(1) would require recognised foreign government certification for bivalve molluscs and bivalve mollusc products. The amendment is necessary because:

1. FSANZ risk statements advise that bivalve molluscs are a medium or high risk to public health for the biotoxins, paralytic shellfish poison and domoic acid and for the microorganism Listeria monocytogenes; and 2. through-chain production controls, including assurances about the quality of water in production areas, are necessary to ensure that these hazards are effectively managed and that bivalve molluscs are safe for human consumption; 3. consistent regulation of imported and domestic bivalve molluscs production is required. The through-chain food safety controls specified in Standard 4.2.1 – Primary Production and Processing Standard for Seafood of the Australia New Zealand Food Standards Code are not currently being applied to imported bivalve molluscs.

The amendment to suborder 5(1) would mean that this certification does not apply to New Zealand product and so the requirement for recognised foreign government certification does not apply to bivalve molluscs or bivalve mollusc products produced in or imported into New Zealand.

7 The effect of the amendment would be to prevent bivalve molluscs and bivalve mollusc products being imported into Australia unless they were covered by certification that Australia had negotiated with the exporting country. The amendment to Schedule 2 would not apply until 12 months after commencement of the Amendment Order to minimise impacts on trade by allowing a period of time to negotiate certification with exporting countries. Exporting countries already certify exports of bivalve molluscs to other countries and it is expected that the requirement for certification can be implemented with minimal impact on existing trade.