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Food Amendment (Kilojoule Labelling
Scheme and Other Matters) Bill 2016
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purpose of the Bill, which is to amend the
Food Act 1984--
• to provide for a kilojoule labelling scheme; and
• to make miscellaneous and technical amendments.
Clause 2 is the commencement provision. It provides that the Bill,
except Parts 2 and 3, comes into operation on the day after Royal
Assent. Parts 2 and 3, which provide for the kilojoule labelling
scheme, come into operation on a day to be proclaimed or, if a
provision of those Parts does not come into operation before
1 July 2018, it comes into operation on that day.
Clause 3 states that in the Bill, the Food Act 1984 is called the Principal
Act.
Part 2--New Part IIA--Kilojoule labelling scheme
Clause 4 inserts new Part IIA--Kilojoule labelling scheme into the
Principal Act.
581243 1 BILL LA INTRODUCTION 13/9/2016
Division 1--Definitions
New section 18 sets out definitions of terms used in Part IIA.
Key definitions include--
Floor area, in relation to a supermarket premises, means
the continuous internal floor area that is used to display
items available for sale and excludes any part available for
consumption of food. For example, a cold storage area not
accessible to consumers or an in-store café would be excluded
in the calculation of floor area. This definition is key because
the proprietor of an individual supermarket is only required to
comply with the kilojoule labelling scheme if its premises has a
floor area of over 1000 square metres (see section 18B(1)(b)).
Menu means a list or other depiction of at least one standard
food item (together with its name or price) that is printed or in
electronic form, which may appear at the food premises where
the food item is sold, or is visible at or before the point of sale at
a drive-through facility, or is distributed or available other than
at the food premises. For example, a menu which is available
online or is distributed to letter boxes, which a customer may use
to make a purchase electronically, by telephone or in person is
included. However, an advertising board outside a food premises
that is a general promotion for food items available inside
without specifically naming or depicting a standard food item
or its price (such as "pies sold here") is not a menu.
Supermarket business means a food business which involves the
sale of all of the 12 listed food items.
Supermarket premises means a food premises at which a
supermarket business operates, other than those parts that are a
chain food premises. That means that if a chain food premises
(within the meaning of section 18A) such as a coffee shop or
sushi bar is located within a supermarket, the chain food premises
is not considered part of the supermarket premises, and is not
included in the floor area. However, the coffee shop or sushi bar
will itself be required to comply with the kilojoule labelling
scheme as applicable to chain food premises.
New section 18A defines chain food premises for the purposes
of Part IIA. Pursuant to subsection 18A(1), a chain food
premises means a food premises (other than a supermarket
premises) at which a food business sells at least one standard
food item, and operates as part of a chain of food businesses.
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Section 18A(2) sets out that a food business operates as part of a
chain of food businesses if--
(a) the chain comprises of at least 20 food premises in
Victoria, or 50 food premises in Australia, including at
least one in Victoria; and
(b) at least 2 of those premises sell the same standard food
item; and
(c) the food businesses operate under franchise agreements,
the same trading name or brand or trademark, or are
under common ownership or control.
This is a key definition as a proprietor of a chain food premises
is required to comply with the kilojoule labelling scheme.
New section 18B defines chain supermarket for the purposes
of Part IIA. Pursuant to section 18B(1), a chain supermarket
means a supermarket premises at which a supermarket business
sells at least one standard food item, operates as part of a chain of
supermarket businesses and has a floor area of over 1000 square
metres.
Convenience-style stores (which often operate 24 hours a day and
which may predominantly sell packaged food) will usually not be
a chain supermarket for the purposes of the kilojoule labelling
scheme. This may be because a particular convenience-style
store does not sell all of the 12 items of food listed in the
definition of supermarket business, or does not have a floor
area of over 1000 square metres.
Section 18B(2) sets out that a supermarket business operates as
part of a chain of supermarket businesses if--
(a) the chain comprises of at least 20 supermarket premises
in Victoria, or 50 supermarket premises in Australia,
including at least one in Victoria; and
(b) at least 2 of those premises sell the same standard food
item; and
(c) the supermarket businesses operate under franchise
agreements, the same trading name or brand or
trademark, or are under common ownership or control.
This is a key definition as a proprietor of a chain supermarket is
required to comply with the kilojoule labelling scheme.
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New section 18C provides that a standard food item is an item of
ready-to-eat food that is standardised for size and content and is
for sale at either at least 2 chain food premises operating in the
same chain, or 2 chain supermarkets operating in the same chain.
Section 18C(2) sets out a list of foods which are not standard
food items for the purposes of the kilojoule labelling scheme.
These include certain nuts and fruit, alcoholic beverages, and
food available for sale in a package containing a nutrition
information panel. There is also an exception for a food item
that is available for a period of 60 days or less at not more than
5 chain food premises or chain supermarkets in the same chain,
and which has not been offered for sale previously. The purpose
of this exception is to allow for trials of new items.
Division 2--Requirement for proprietor of chain food premises to
display kilojoule information
Section 18D(1) requires a proprietor to display a statement
about the average adult daily energy intake, and the average
energy content of each standard food item sold at the chain
food premises. This is an offence provision, with a penalty of
20 penalty units in the case of an individual and 100 penalty units
in the case of a corporation.
Section 18D(2) sets out how the average energy content of a
standard food item is to be determined.
Section 18D(3) provides that in any proceedings for an offence
under this section, the defence of mistaken but reasonable belief
as to the facts that constituted the offence is not available. This is
consistent with the position in relation to the offences under
Division 2 of Part II of the Principal Act, pursuant to section 17F.
Section 18D(4) provides that, despite subsection (3), it is a
defence if it is proved that the proprietor exercised all due
diligence to prevent the commission of the offence. For example,
a proprietor may be able to demonstrate due diligence if the
proprietor displayed in good faith kilojoule labels provided by the
head office of the chain food business that were later found to be
incorrect.
New section 18E sets out the detail about the manner and
location of display of kilojoule information at a chain food
premises. It includes a requirement to display the information
in a prominent place in or on a display cabinet, stand or area.
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Division 3--Requirement for proprietor of chain supermarket to
display kilojoule information
New section 18F requires the proprietor of a chain supermarket
premises to display kilojoule information.
Section 18F(1) sets out that the proprietor must display a
statement about the average adult daily energy intake, and the
average energy content of each standard food item or of 100g of
the standard food item sold at the chain supermarket. This is an
offence provision, with a penalty of 20 penalty units in the case
of an individual and 100 penalty units in the case of a
corporation.
Section 18F(2) sets out how the average energy content of a
standard food item is to be determined.
Section 18F(3) provides that in any proceedings for an offence
under this section, the defence of mistaken but reasonable belief
as to the facts that constituted the offence is not available. This is
consistent with the position in relation to the offences under
Division 2 of Part II of the Principal Act, pursuant to section 17F.
Section 18F(4) provides that, despite subsection (3), it is a
defence if it is proved that the proprietor exercised all due
diligence to prevent the commission of the offence. For example,
a proprietor may be able to demonstrate due diligence if the
proprietor displayed in good faith kilojoule labels provided by
the head office of the chain supermarket business that were later
found to be incorrect.
New section 18G sets out the detail about the manner and
location of display of kilojoule information at a chain
supermarket. Chain supermarkets have the option of displaying
the average energy content of each standard food item or per
100g of each standard food item.
Division 4--Exemptions
New section 18H provides for exemptions from the kilojoule
labelling scheme. Standard food items sold by a cinema-run food
business, such as a candy bar, are not subject to the scheme.
Other exemptions include standard food items sold by catering
businesses, vending machines, or temporary or mobile food
premises such as a food van.
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Part 3--Consequential amendments
Clause 5 amends section 13 of the Principal Act. Section 13 prohibits
false descriptions of food on a food label or packaging or in
advertising during the course of promoting or selling the food.
The effect of the amendment is that nothing in new Part IIA
disturbs the operation of section 13. A proprietor who is subject
to the kilojoule labelling scheme remains subject to section 13.
A proprietor of a food premises who is not subject to the
kilojoule labelling scheme but voluntarily displays kilojoule
information also continues to be subject to section 13.
Clause 6 amends section 17A of the Principal Act. Section 17A sets out
instances of when food is falsely described. The effect of this
amendment is that nothing in the new Part IIA disturbs the
operation of section 17A.
Clause 7 amends section 45A of the Principal Act, which provides that
in any prosecution under the Act, the burden of proving the
correctness of certain statements regarding food is on the person
charged. The effect of the amendment is that section 45A does
not apply to the offences in new Part IIA.
Clause 8 inserts two new paragraphs into section 50AA of the Principal
Act. This allows for a certificate signed by the Secretary relating
to a matter which may be required to be proved in relation to the
offences in new sections 18D and 18F to be evidence of the
matter.
Clause 9 inserts two new paragraphs into section 50AB of the Principal
Act. This allows for a certificate signed by the Chief Executive
Officer of a council relating to a matter which may be required to
be proved in relation to the offences in new sections 18D and 18F
to be evidence of the matter.
Clause 10 amends section 51B of the Principal Act (which relates to the
criminal liability of officers of bodies corporate) so that the
section applies to new sections 18D and 18F. The effect of this
amendment is that, if a body corporate commits one of the new
offences, an officer of the body corporate also commits the
offence. Section 51B provides for a defence of due diligence
for an officer of a body corporate.
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Clause 11 amends section 53B of the Principal Act to add a reference to
new Part IIA in that section. The effect of this amendment is that
a court is able to order corrective advertising if a person is found
guilty of one of the new offences.
Clause 12 amends Schedule 1 by inserting references to the new offences.
The effect of this amendment is that the new offences are
infringement offences within the meaning of the Infringements
Act 2006, pursuant to section 56A of the Principal Act.
The infringement penalties for the new offences are 2 penalty
units for a natural person or 4 penalty units for a body corporate.
Part 4--Other amendments and statute law revision
Clause 13 amends section 20(5) of the Principal Act by removing the words
"by or on behalf of the Crown".
Section 20(5) currently prevents an authorised officer who is
an environmental health officer from exercising powers or
discharging functions under the Principal Act with respect to any
food premises being operated by or on behalf of the Crown or on
land that is not part of a municipal district, unless acting in
accordance with a delegation from the Secretary.
Since 2010, the Principal Act has provided that municipal
councils are responsible for registration and monitoring of food
premises operated by or on behalf of the Crown. The restriction
in section 20(5) relating to a food premises that is operated by
or on behalf of the Crown reflects the position prior to 2010,
whereby the Secretary was responsible for the registration of
such food premises. Clause 13 amends section 20(5) to reflect
the changed position.
Clause 14 corrects a cross-reference in section 28(b) of the Principal Act,
so that the section will refer to an article destroyed or otherwise
disposed of pursuant to section 26(5).
Clause 15 amends item 1 of Schedule 1--Infringements of the Principal
Act, to remove the reference to clause 24(1)(b) of Standard 3.2.2
of the Food Standards Code ("the Code").
Since Schedule 1 was inserted into the Principal Act, the Code
has been amended. Clause 24(1)(b) of Standard 3.2.2 used to
relate to assistance animals (such as guide dogs) and their
presence in certain areas of a premises on which a food business
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is in operation. It now refers to another matter that is not
intended to be an infringement for the purposes of the Principal
Act. The matters previously dealt with by clause 24(1)(b) of
Standard 3.2.2 are now dealt with in clause 24(1)(a) of
Standard 3.2.2, which is listed in column 2 of item 1 of the
Schedule.
Clause 16 makes amendments to the Principal Act to reflect recent changes
to Department names that took effect on 1 January 2015.
The effect of these changes is--
• "Department of Health and Human Services" is
substituted for "Department of Health"; and
• "Secretary DHHS" is substituted for "Secretary DH";
and
• "Department of Economic Development, Jobs,
Transport and Resources" is substituted for
"Department of Primary Industries"; and
• "Secretary DEDJTR" is substituted for "Secretary DPI".
Part 5--Repeal of amending Act
Clause 17 provides for the repeal of the amending Act on 1 July 2019.
The repeal of the Act does not affect the continuing operation
of the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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