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5 October 2001 Symposium: Food Safety and Security The Australian food regulatory system: Troubling times ahead?On 31 July 2001, the newly constituted Australia New Zealand Food Standards Council (ANZFSC) met for the first time. The ANZFSC emerged from the signing in November 2000 of an Inter-Governmental Agreement to implement a new food regulatory system in Australia (ANZFA-ANZFSC 2001). The food regulatory system provides a rich setting for analysing directions in food policy. All food sold in Australia must comply with food regulations. Because food is a health, commercial, social and cultural commodity, its regulation often engages competing values, beliefs, and interests. Consequently, making food regulations is an intensely political activity, and the food regulatory system is frequently required to address complex and vexing policy matters. Items on the agenda items at the first meeting of the ANZFSC, for example, included the review of health claims on food labels, the approval of five genetically modified foods, and the regulation of previously deferred Maximum Residue Limits for 12 antibiotics used in animals. The amended arrangements may have introduced efficiencies into the food regulatory system, but the benefits for public health and consumers are less apparent.
The New Food Regulatory System
Implementation of the Inter-Governmental Agreement required amendment of the ANZFA Act 1991 to establish the mechanisms for the new food regulatory system. The key institutions of the new system are:
In setting food standards, ANZFA is required by the ANZFA Act 1991 to protect public health and safety. Legislation also requires that food standards are based on risk analysis using the best available scientific evidence, and that the Authority seeks public comment on any application for a new standard or variation to an existing standard. When the ANZFSC adopts an amendment put forward by ANZFA, it automatically becomes law in Australian States and Territories and in New Zealand (with a few exceptions that fall outside the Treaty arrangements). The Health Claims ReviewA health claim is a statement linking consumption of a food, or a component of a food to a disease or health-related condition. Food regulators prohibited health claims on food labels and in advertising when so-called ‘snake oil’ salespeople were making fraudulent claims about the health enhancing properties of certain food products. Recently, this prohibition has been reviewed under the new arrangements for food regulation in Australia. The process and outcome of the health claims review shows up some disturbing flaws in the new system of food regulation. The review of health claims policy considered at the first meeting of the ANZFSC demonstrates the deficiencies of the new food regulatory system. During the review, concerned that health claims were primarily a marketing strategy that would undermine nutrition education principles and foster a ‘medicalisation’ of the food supply, the majority of public health and consumer groups making submissions to the Authority sought to have the prohibition maintained (ANZFA 2000). Conversely, the majority of the submissions came from the food industry. Most argued that health claims were a legitimate nutrition education strategy, so that exemptions to the prohibition should be permitted.
Differential access among stakeholders to the process has emerged as a significant weakness in the new food regulatory system. In the health claims review, consulting and participating with the food regulatory system did not occur on a level playing field. One multinational food company invested substantial resources advocating a review of the health claims policy in the first place. Once the review began, the company maintained intense pressure on the food regulatory system to remove the prohibition on health claims. It lobbied decision-makers directly, as well as building alliances with other stakeholders. The company also sponsored seminars aiming to redefine health claims as a public health rather than a marketing issue. Public health and consumer groups seeking maintenance of the prohibition on health claims had significantly fewer resources to participate in the review process. For example, they had less capacity to pay to attend meetings or to gain access to ANZFA’s public register in Canberra. These groups tend to rely on a small number of dedicated professionals to prepare submissions in addition to their ‘core’ work. Compared to stakeholders with vested interests in food trade, these groups faced significantly greater challenges in acquiring, analysing and presenting costs and benefits in accordance with the Authority’s assessment procedures. A second problem emerging from the health claims review is difficulty in interpreting and applying the objective to protect public health and safety in making policy in the new food regulatory system. Despite the priority accorded this objective, no food regulation agency either in Australia or internationally has explicitly defined the objective nor specified its application to the practical development and implementation of food regulation. In an innovative development, ANZFA has published a position paper on its role in health promotion (ANZFA 2001), but the paper does not explain how public health relates to the setting of food policy or individual food standards. When setting food policy for food standards, what is the difference between protecting public health and promoting public health? What is the difference between protecting public health and protecting safety? The response to these questions is critical in determining the type of scientific evidence to be assessed in formulating food regulatory policy. For example, should policy considerations be confined to technical information regarding the immediate safety of individuals or should they also take into account the longer term population-wide impacts of change? And should policy considerations be inclusive of broad public health principles related to ecological and social dimensions of the food supply as a whole? The use of health claims signals a profound transition in the development of the food supply. However, the food regulatory system has no guiding public health principles for this issue, nor has it stipulated the necessary requirements for scientific evidence to inform its policy-making process. The health claims review also exposed a lack of openness and transparency in the food regulatory system. Following its review, ANZFA made recommendations consistent with those sought by the majority of the food industry submissions, albeit with firm criteria for substantiating health claims. This policy decision disappointed most public health and consumer groups. Representatives from these groups are now asking what are the procedures for reviewing submissions against policy objectives? Is it the number of submissions? The quality of submissions? Who is submitting? However, public health and consumer groups were to raise even more serious concerns about the (lack of) openness and transparency of the system when the ANZFSC did not accept ANZFA’s recommendations. The Ministers directed the Food Regulation Standing Committee, rather than ANZFA, to develop the policy framework for health claims. Many public health practitioners fear that the Minister’s peculiar decision was a response to food manufacturers’ intense lobbying for the ‘watering down’ of ANZFA’s recommendations.
The accountability of the decision-making process at the Ministerial Council has been questioned before. For example, following the Council’s recommendation for liberalisation of the addition of vitamins and minerals to food products, Wright (1998: 33) observed that: The actions of the Council and some of the Ministers have undermined the procedure for open and transparent consultation laid down in the Act. Given the lack of transparency in the Australian New Zealand Food Standards Council operations and the loss of parliamentary surveillance, it would be reasonable to require the Council to give reasons and disclose voting patterns when it fails to adopt a Australia New Zealand Food Authority draft standard. This would go some way to providing safeguards against abuse of power. Food Regulation and Competition Policy: Conflicting Objectives?These deficiencies in the new food regulatory system can be explained by the impact of the amended food regulation arrangements on the system’s structure, capacity and corporate governance. The amended arrangements represent the culmination of a series of reviews and reforms into the food regulatory system throughout the 1990s. The most notable review during this period was the Food Regulation Review (FRR). The FRR commenced in 1997 as part of the reform statement ‘More Time for Business’ announced by the Prime Minister that was itself prepared in response to the Commonwealth Government’s Competition Principles Agreement. Although recognising the need to protect public health and safety, the FRR had as its key objectives to:
The FRR coincided with the review for and subsequent gazettal of the Joint Australia New Zealand Food Standards Code, in December 2000. The new Code aims to reduce and simplify existing regulations covering food manufacture and handling. New regulations are intended to enhance industry innovation, competition, and trade. The policy environment within which the food regulatory system operates has become increasingly influenced by an ideology of deregulation and focused on fostering the export competitiveness of Australian food products. Many countries, including Australia, have entered into international agreements that impose obligations on them with respect to how they trade in food in the global marketplace and seek harmonisation of standards internationally. Legge has described this globalisation in the governance of food regulation as a shift in power and control of world trade away from the sovereignty of the ‘nation-state’, where “democratic accountability is being superseded by new mediations of power” (1998: 158). Food Policy-making Institutions: Winners and LosersThe new institutional framework for food policy-making has changed the composition, roles, and relative power of the institutions involved. Health Ministers remain the lead ministers within the reconstituted ANZFSC structure. However, Ministers from other portfolios now join them. The newly created Standing Committee is the big winner in the new arrangements, empowered to exert influence in food regulation policy through its advisory role to the Ministerial Council meetings, and its role in setting policy direction for the ANZFA. Interestingly, many of the public servants who prepared the Inter-Governmental Agreement establishing the new regulatory arrangements are those now working in the new Standing Committee.
Just as the Standing Committee is the winner in the new arrangements, ANZFA seems the loser. When reconstituted as FSANZ, its responsibilities will be restricted to food standards activities as distinct from the broader food regulation activities. Moreover, the roles of the Authority will be effectively downgraded to technical rather than policy matters. Responsibility for advising health ministers on public health policy has been removed from this statutory authority, which was initially established as the independent and scientific agency for this purpose. The critical issue to consider will be the nature of the relationship between the statutory authority and the Standing Committee and the extent of control exerted over the Authority’s independence. Experience with the review of health claims and other public health policy matters has increasingly led public health and consumer groups to see participating in the ANZFA’s food standard setting procedures as ineffective. They see that other stakeholders have had far greater success in achieving their interests by operating outside the formal consultative arrangements, advocating directly to ministers where the real power lies. The amended food regulation arrangements have exacerbated the political nature of this situation. For example, with the separation of policy and technical responsibilities, the openness and transparency of the food regulatory system has been diminished. Specifically, because only the procedures of the statutory authority are open to public scrutiny, and because the responsibilities of the Authority are now restricted to technical matters, logic dictates that only technical matters will be open and transparent. Policy matters that are addressed by the Standing Committee are not required to be released publicly. Clearly, the public release of the Standing Committee’s advice, and the ANZFSC deliberations, should also be required to support openness and transparency. Food Regulation into the FutureDespite the objectives and procedures prescribed by the legislative framework, the review of the health claims policy illustrates the unpredictable and political operation of the food regulatory system in Australia. As food production and processing technologies become more complex, the public health and safety challenges facing food regulators will also become more complex. As Miller comments, “Scientific knowledge is accumulating at such a rate that we know almost too much and understand too little about the substances we are attempting to evaluate and regulate.” (Miller and Taylor 1989: 23). At the same time, economic imperatives, particularly competition and trade concerns, are increasingly influential in food policy-making. Meanwhile, consumers continue to be interested in what is happening with the food supply. In spite of this consumer interest, the new food regulatory arrangements have entrenched barriers to consumer’s participation in the policy-making process to the extent that many consumers are increasingly removed, sceptical, and confused by the food regulatory system. The system needs to be more accessible to all stakeholders, clearer in the interpretation and application of its objectives and more open and transparent in its operation, if it is to enjoy the confidence of the Australian community. REFERENCESANZFA-ANZFC (2001) Joint Communique: First Meeting of New Food Standards Council: A Whole of Food Chain Approach to Food Safety Regulations, Australia New Zealand Food Authority - Australia New Zealand Food Standards Council, 31 July. Australia New Zealand Food Authority (2000) Review of Health and Related Claims Full Assessment Report Proposal P153, August. Australia New Zealand Food Authority (2001) ANZFA’s Role in Health Promotion: Position Paper Series No. 1, June. Food Regulation Review Committee (1998) The Report of the Food Regulation Review: Food: A Growth Industry, Commonwealth of Australia. Legge, David (1998) ‘Globalisation: What does ‘intersectoral collaboration’ mean?’ Australian and New Zealand Journal of Public Health, Vol 22, No. 1, pp. 158–162. Miller, Sanford and Taylor, Michael (1989) ‘Historical development of food regulation’, in Middlekauff, RD and Shubik, P (eds), International food regulation handbook, Policy-Science-Law, Marcel Dekker, Inc, New York, pp. 7–26. Wright, Joan (1998) Course Materials: Food Product Law—Protecting Public Health, Deakin University, Melbourne. Mark Lawrence is a Senior lecturer at the School of Health Sciences, Deakin University. He is currently completing a PhD thesis analysing folate fortification of staple food products as a case study of the public health policy-making process. View other articles in this symposium:
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