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Food-Packaging Regulations Down Under: Change on the Horizon

October 1, 2002

A new regulatory scheme in Australia and New Zealand, scheduled to become effective in December 2002, will shift the regulatory focus from the current prescriptive, commodity-based regulation to broader, more general regulations. The joint Australia/New Zealand Food Standards Code (the "Joint Code"), which succeeds the Australian Food Standards Code, will regulate materials in contact with food in general terms.

Standard 1.4.3 of the Joint Code ("Articles and Materials in Contact with Food") basically requires that food-contact articles should not cause bodily harm or discomfort and that packaging must be safe and suitable for the intended use. "Safe and suitable" is defined in Standard 3.1.1,1 Clause 2(4), which states that a food-contact substance is not suitable if, among other things, it contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.

The Joint Code does not specify those materials that may be added to food packaging;2 rather, it makes it the responsibility of the food manufacturers and retailers to ensure that their products are safe and that they comply with all relevant legislation.3 Therefore, a safety assessment should include an evaluation of the packaging of the products as well as the products themselves. The Joint Code refers to both the Australian standard for plastics materials for food-contact use, developed by the Standards Association of Australia (discussed below), and the U.S. packaging regulations, for further guidance regarding details of materials to be added to or used to produce food-packaging materials or articles intended to be in contact with food.

The Standards Association has published standards regarding the manufacture, composition, and testing of a number of plastic materials intended for use in contact with food. These "Australian Standards" are not literally part of the Joint Code, but are widely followed in Australia and are, as stated above, referenced in the Joint Code. Under Australian Standard (AS)2070, "Plastics Materials for Food Contact Use," the Standards Association has adopted standards specific to a number of polymers and for certain additives.

The Joint Code will replace the Australian Food Standards Code, originally issued by the National Health and Medical Research Council.4 Established under The Australia New Zealand Food Authority Act of 1991, the Food Standards Australia New Zealand (FSANZ) (formerly known as the Australian New Zealand Food Authority (ANZFA)), in consultation with the States and Territories of Australia, was responsible for developing food standards under the Australian Food Standards Code, and for coordinating the food surveillance activities of government agencies in Australia.

While the Australian Food Standards Code, much like the Joint Code, does not contain a specific standard applicable to food packaging, Standard A13, "Foreign Objects in Food or Packages of Food," indicates that food-packaging materials must not adulterate food. This section provides that substances are permitted for use in food-packaging applications if, among other things, they are "composed of materials that will not contaminate or migrate into the food."5 Under the Australian Food Standards Code, it has been generally recognized that food-packaging materials that comply with U.S. and EU regulations are also permitted for use in packaging food in Australia, so long as the materials do not adulterate food.6

In summary, while the regulatory system is soon to change in Australia and New Zealand from a more specific regulatory control under the Australian Food Standards Code to safety-based regulation under the Joint Code, manufacturers of food packaging and food-packaging components should act similarly under both regulatory systems by considering the safety and suitability of the packaging for contact with food and using existing, more detailed guidance for making these safety assessments.

FOOTNOTES

1Chapter 3 of the Joint Code is applicable only to businesses in Australia, not New Zealand.

2While the Joint Code is general in nature, it does specify maximum levels for some contaminants, under Standard 1.4.1. However, as a general overarching principle, the levels of contaminants and natural toxicants in food should be kept as low as reasonably possible.

3See Editorial Note of Standard 1.4.3 of the Joint Code.

4See Food Standards Code, P27 Commonwealth of Australia Gazette (Aug. 27, 1987, as amended).

5See Food Standards Code, A13(3)(b).

6See Australian Standard A2070-1999, Plastics materials for food contact use, Section 4 "General Requirements for New Plastics Materials and Rework Materials" (Mar. 5, 1999, rec'd Oct. 17, 2000).

"New plastics materials used in the manufacture of plastics items for food contact use shall comply with the following: (a) The relevant regulations in the United States of America Food and Drugs Administration as set out in the Code of Federal Regulations 21 C.F.R. Parts 170 to 199 and any subsequent amendments and revisions; (b) the relevant European Commission directives for materials and articles intended to come into contact with foodstuffs as set out by Commission Directives 89/109/EEC (Framework Directive) and 2002/72/EEC (Plastics Directive)."