Who is answerable for a pack of acai?

What the pack must carry

Standard 1.2.1 says when a food for sale must bear a label, and what that label must carry. The rule is a list, and its exceptions are worth reading first, because they say which packs are not in it. A food in a package must bear a label unless it is made and packaged on the premises it is sold from; or packaged in the presence of the purchaser; or whole or cut fresh fruit and vegetables in a package that does not obscure the nature or quality of the food; or delivered packaged and ready for consumption at the express order of the purchaser, other than from a vending machine; or sold at a fund raising event; or displayed in an assisted service display cabinet. A whole fruit in a plastic punnet and a bag of dried powder are on opposite sides of that line, and the pulp in a sealed tub is on the label side of it.

Where the label is required, the information it must carry includes: the name of the food; the lot identification; the name and address of the supplier; advisory statements, warning statements and declarations; a statement of ingredients; date marking information; storage conditions and directions for use; information relating to nutrition, health and related claims; nutrition information; and information about characterising ingredients and components. The Standard’s list goes on for particular foods, among them genetically modified, irradiated and cell-cultured food, juice blends and minced meat. The table below sets out the items above with the Standard each one is taken from.

Four details of that list are easy to state, and they are the ones a buyer can check in a shop. The supplier is a person with a name and business address in either Australia or New Zealand, and the Code defines those words rather than leaving them to habit. The reasons for that are on FSANZ’s own labelling pages: all food must be labelled with the contact details of the food supplier in New Zealand or Australia so consumers can contact the supplier and request further details about the food. A date mark is the use-by date where there is one, and otherwise a best-before date; a food must not be sold after its use-by date; and the date must be written with the words “Best Before” or “Use By” and the date itself, or a reference to where on the label the date is. A best-before date is the date up to which the food will remain fully marketable and retain any specific qualities for which express or implied claims have been made, if it stays in an intact package and is stored as the Code’s storage Standard requires, and a use-by date is the date after which it is estimated that the food should not be consumed because of health or safety reasons. A small package needs only the use-by date, if there is one.

Storage is the other half of the date. The Code requires a statement of the specific storage conditions where they are needed to ensure the food keeps until its use-by or best-before date, and directions for use where the food must be used or stored in a certain way for health or safety reasons, with two particular statements named for raw bamboo shoots and raw sweet cassava. Whether a pack needs that statement turns on whether specific storage conditions are needed for it to keep until its date.

Two rules make the whole label readable and enforceable. Words required on a label must be in English, legible, prominent and contrasting distinctly with the background, and a second language may be used so long as it does not negate or contradict the English. A warning statement has its own size: at least 1.5 mm of type in a small package, and at least 3 mm otherwise. And a label that turns out to be wrong can be fixed in one narrow way: a person who sells the packaged food, or deals with it before sale, may place a new label over the incorrect one, so long as the new label cannot be removed and the incorrect information is not visible.

The origin words

The country of origin words come from a different instrument, and from a different regulator. The Australian Government introduced a country of origin food labelling system under the Australian Consumer Law on 1 July 2016, in the Country of Origin Food Labelling Information Standard 2016 under the Competition and Consumer Act 2010. The standard commenced on 1 July 2016, and its requirements became mandatory on 1 July 2018, when the Food Standards Code was amended to remove country of origin labelling requirements from the Code. Its purpose is to provide for country of origin labelling requirements for food for human consumption sold in Australia, and under it most food for retail sale in Australia must be labelled with a country of origin.

What that means for an imported pack is specific. For most imported food, the country of origin statement has to be in a clearly defined box, and the ACCC states it the same way: imported priority foods must carry the country of origin statement in a clearly defined box, though the box is not required if the food is unpackaged. The statement itself is either the country of origin, or, where the food was packaged using food from more than one country, a statement that identifies the country where the food was packaged and indicates that the food is of multiple origins or is comprised of imported ingredients.

Whether a box is compulsory turns on a category. Foods that require country of origin labelling are priority foods unless they fall into one of the non-priority categories: seasonings, confectionery, tea and coffee, biscuits and snack food, bottled water, soft drinks and sports drinks, and alcohol. All foods other than non-priority foods are priority foods, and the ACCC lists fruit and vegetables, meat, seafood, bread, milk, juice, sauces, honey, nuts and cereal among them. The priority side of the line gets the box, and the non-priority side does not: for non-priority foods, the requirements for standard marks and the placement of the origin statement in a box are voluntary rather than mandatory, and those foods need only a text statement about where the food was grown, produced, made or packed.

Three further rules keep the words honest. Whether or not a business has to follow the standard, its country of origin claims about food must be true, accurate and based on reasonable grounds, and the ACCC and other Australian Consumer Law regulators can call on a business to substantiate the claims on its labels. A business that has complied with the standard can rely on an automatic defence, known as a safe harbour, if an allegation is made that it breached the Australian Consumer Law with a country of origin claim, but the defence has a limit: if the package displays extra images or representations that create an overall misleading impression, the business may still be at risk of breaching the Australian Consumer Law, and penalties may apply. And the terms have definitions: a food can be described as grown or produced in a country only if virtually all of its content is from, and virtually all of the processing is undertaken in, that country, though any food that can be described as grown or produced in a country can also be described as made in it. Under the Competition and Consumer Act, goods were substantially transformed in a country if, as a result of processes undertaken there, they are fundamentally different in identity, nature or essential character from all of their ingredients or components imported into that country.

The party the label names

The line on the label a buyer can use is the supplier’s name and address. It is not decorative. A label carries the name and business address in Australia or New Zealand of a person who is a supplier, and FSANZ puts the reason plainly: consumers can contact the supplier and request further details about the food. For a pack of imported food, that is the party in this country who answers for it.

The Food Standards Code puts the same duty on the business rather than on the label, and it reaches further than supply. A food business must provide, to the reasonable satisfaction of an authorised officer on request, the name and business address in Australia of the vendor, manufacturer or packer or, for food imported into Australia, the name and business address in Australia of the importer, together with the prescribed name or, if there is none, a name or description of the food sufficient to indicate its true nature. A business engaged in the wholesale supply, manufacture or importation of food has a further duty: it must keep a system to ensure the recall of unsafe food, put the system in writing, make the document available to an authorised officer on request, and comply with it when recalling unsafe food.

Origin information has a record duty of its own. Where a person makes a sale of food, other than a sale of unpackaged single ingredient food from a single country of origin, and provides country of origin information that the standard requires or permits, the person must keep the records they relied on, for one year after the sale. The seller must also provide the purchaser, on request, with information about the origins of the food or its ingredients that the purchaser needs to on-sell the food or to sell another food that uses it as an ingredient.

The capsule’s other register

A capsule sold as a therapeutic good carries the obligations that come with supplying therapeutic goods in Australia, and the register to check is the Australian Register of Therapeutic Goods: the TGA keeps it as a public register of the therapeutic goods that may be supplied here, and it can be searched for the goods that have been approved for supply.

At the line, a capsule is a good containing, or made of, plants, which puts it in the classes the Biosecurity (Conditionally Non-prohibited Goods) Determination 2021 applies to, and so under the same biosecurity choice as the other forms: a permit, or the alternative conditions the instrument sets for it, with further conditions for some goods. Even goods that pose no biosecurity risk may be restricted under other laws, and the department names the Therapeutic Goods Administration among the agencies to check. Past the line the two routes divide: the pack of a food is read against the Food Standards Code and the country of origin standard, and the pack of a therapeutic good against the obligations of supplying therapeutic goods and the ARTG.