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Review Committee Digest

Report on the Complaint Relating to the New Zealand Food
Standard 1996, Amendment No.11

14 June 1999, AJHR I16Q

_____________________________________________________________________

Note: The headnote that appears below does not
form part of the Committee’s report. It is provided as a summary only.
Before citing the contents of the report, users are advised to view the
report as it appears in the Appendices to the Journal of the House of
Representatives.

Standing Order 382(2)(a), (c), (d), (h), (i) - food standards made
under the Food Act 1981 - labelling requirements on bee products - extent
of obligations under Australia New Zealand Food Authority Act 1991 -
insufficient scientific and technical evidence on which to base decision -
failure to produce risk/benefit analysis - proper exercise of discretion
-  unusual use of regulation-making power given voluntary use of
labels by industry and international practice - predetermination - extent
of consultation - amendment be revoked despite impending review.

A 1996 amendment to the Food Act 1981 provided the Minister of Health
with the authority to issue food standards, concerning, among other
things, “food safety and information about food, including labelling”.
Under the Australia New Zealand Food Authority Act 1991, New Zealand was
obliged to adopt standards recommended by ANZFA unless there was good
reason for not doing so. In December 1997, ANZFA introduced a revised
warning for products containing royal jelly following an Australian
coroner’s finding that royal jelly was the cause of a death. The revised
warning adopted by ANZFA could not be implemented immediately in New
Zealand because of the requirement to consult before the Minister could
issue a food standard as required by the Food Act 1981. After an initial
investigation, the ministry proposed mandatory labelling of products
containing royal jelly, bee pollen, or propolis. A consultation process
was carried out by the Ministry, which then made recommendations to the
Minister. The Minister then signed the Amendment and it was gazetted in
December of 1998.

The complainants considered the mandatory labelling of royal jelly, bee
pollen, and propolis to be an unjustifiable use of the regulation-making
power. It opposed mandatory regulations at a time when it considered 95%
of the industry voluntarily used warning labels. It also disagreed with
the severity of the warning required on labels.

SO 382(2)(a) - general objects and intentions of the
Act: Concern was expressed at the alleged insufficient scientific
and technical evidence to support the safety concerns the amendment
purported to address. The complainants also considered it unfair to make
warning labelling compulsory given that approximately 200 cases of serious
adverse reaction in a 3-year period were to common foods and basic drugs
such as paracetamol. The Committee found the process used by the ministry
to determine whether there was a risk to public health was open to
challenge. In particular, the failure to produce a substantive
risk-assessment for each of the three bee products as well as the lack of
a comparative risk analysis was crucial. As a result it was not possible
to satisfy the pre-conditions in section 11E of the Food Act 1981. While
the Minister had a discretion in deciding the weight to be given to
different considerations there must be evidence available to support the
decision. Ground breached.

SO 382(2)(c) - unusual or unexpected use of the
powers: Ground breached. The amendment was an unusual or
unexpected use of powers in the Act on the basis that:

warning labels to be used on bee products are harsher than those
applying to pharmaceutical products or food products that contain
allergens. This is despite the fact that the later may pose a greater
health risk than products such as royal jelly;

it is unusual given that the Ministry agreed that voluntary use of
labels in the industry is at least 75%;

Australia is the only other country that requires mandatory
labelling on bee products;

it was unfair to single out the bee industry for regulation given
the impending review by ANZFA of food allergens, labelling, and
international practice;

the seemingly overwhelming desire to conform with Australian
standards.

SO 382(2)(d) - independent review of rights and
liberties: Ground not breached.

SO 382(2)(h) - non-compliance with notification and
consultation procedures: The complainants contended that the
amendment was made without the requisite consultation. It was argued that
as the driving force behind the proposed amendment was alignment with
Australia, the outcome had been predetermined. It was further alleged that
the information provided to those consulted was inadequate. The Committee
was satisfied that the consultation process was adequate. Ground not
breached.

SO 382(2)(i) - form or purport calls for elucidation:
The complainants submitted that because the warning labels were contrary
to established international practice the amendment required elucidation.
Ground not breached.

Recommendations: The Associate Minister announced a review of
the mandatory wording requirements for bee products. Notwithstanding, a
majority of the Committee recommended the amendment be revoked.

Full_Report
(167kb)

Government_Response
(2.00mb)

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