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Food Standards Australia New Zealand Amendment Bill 2007

CHAIR —Welcome. Thank you for being here today to help us with this inquiry. I understand information on the protection of witnesses and parliamentary privilege has been provided to you. We have the submission you have made to us in front of us, No. 5—thank you for that. We have questions to ask you but we might kick off with an opening statement if you wish to make a short one of no more than 10 minutes. If you could keep it to within that time it would be appreciated. Dr Yong, do you wish to lead off?

Dr Yong —Firstly, the AMA appreciates the opportunity to comment on the proposed amendment bill and to be able to present evidence for the committee today. We appreciate the intention of the bill is to streamline process and balance the needs of industry in the public, but from the AMA’s point of view, our major concern around food regulation is about public safety. We view the function of FSANZ in terms of food regulation as an essential public health activity and, from that basis, we will make some comment.

In looking at the amendment bill, we support the alignment of the policy setting process of the ministerial council and the standard development and approval process of FSANZ. The bringing together of that we feel will help to streamline the process. We also support the ability for the council to request a second review while maintaining appropriate oversight standards by the council. In looking at these things we were guided by our current policies on public health and health protection and the fact that we feel that needs to be paramount and enshrined in any bills governing food regulations in this country. As part of that, we would support the precautionary principle as we outlined in our submission to the committee being enshrined in any such legislation.

We were mostly guided by the existing Food Standards Australia New Zealand Act 1991 which has as its principles: the protection of public health and safety; the provision of adequate information relating to food to enable consumers to make informed choices; and the prevention of misleading and deceptive conduct. As we said in our submission, we were somewhat disappointed that perhaps those particular principles appear to have taken somewhat of a step backwards in preference to improving processes for industry and looking at innovation and food.

We think that the new legislation will be strengthened by having some definition of public health in it which would serve to emphasise the needs for the safety of the public being a primary consideration. What we would like to do is send you some information about the precautionary principle and our position statement of public health which outline the need for a considered approach when undertaking any activity, and food regulation will be one that affects the health of the public.

We would also like to emphasise that from the precautionary principle we believe this is a principle that would help to emphasise some of the concerns around new activities or inactivity even which has potential for harm to the environment and human health. Clearly food regulation falls into this sort of category. We only need to see the effect of the increases in obesity in Australia and the long-term health and economic consequences of that, the relationship of what is available in terms of food and food advertising and information to the public, and the public making those sorts of wise choices about the food they will eat.

The precautionary principle allows for these sorts of relationships to be examined even when the evidence—as is often the case in terms of food regulation—is not fully established. I will explain that a little bit. The precautionary principle really tries to ensure that all planning decisions that may impact on the environment or human health are transparent, participatory, democratic and informed by the best available independent science. Where the risk cannot be determined with sufficient certainty, it tries to emphasise proper precautions, to ensure that the full range of alternatives to the proposed action are identified and examined and that the alternative with the least potential impact on human health is the one chosen.

It is also to ensure that full and accurate information, the risks and benefits, on potential human and environmental impacts is provided to all parties, including the community, before a decision is taken. Important information must not be withheld using a commercial-in-confidence argument. The examination of these alternatives should include the costs in the assessment process. Things like manufacturing, transportation, clean-up and disposal costs should be included in health and environmental costs. They need to be reflected, obviously, in the retail price of new products.

Also, there should be a regular review of new evidence as it comes to hand—particularly where the evidence initially is somewhat weak—to ensure that, if new evidence comes to show that new decisions can be made regarding an activity or food process, this is incorporated so that innovation is not stifled. This would ensure that the precautionary principle did not stymie progress but was in fact a guide to risk assessment. Where risk is unknown or limited information is available, data should be collected as the action proceeds so that later review can be made available. As you can see, what we would like to see in a food regulation regime is something approaching this sort of precautionary principle. Certainly in other jurisdictions we are seeing, in terms of regulation of environmental hazards and of food processes, these principles are starting to be adopted.

I have some other, smaller points. In looking at this amendment bill, we have some concerns regarding the negative impact on trade being a reason to develop an urgent standard. We would like to see health placed before trade in looking at food regulation. We would also like to see any sort of food innovation aimed at having a beneficial impact on public health and food consumption patterns so that we would be making some efforts in this instance to combat the problems of being overweight and obesity. While some food innovations can have a positive impact on food supply and health, this is not necessarily guaranteed. We will need some examination. We want to make sure that Food Standards Australia New Zealand is strengthened to be able to undertake that role.

Dr Chirgwin —We had a specific issue with the proposal which I heard Clare talking about before of having three different processes and which of those three would be used for a particular proposal. We had severe concerns that things that really should have public consultation might end up without public consultation.

CHAIR —Thank you very much for that opening statement.

Senator MOORE —I am trying to look at the consultation process around this piece of legislation because we are being told how good it is and that always raises bells for me. When someone tells me how good a process is, I always like to find out about it. I would like to know what the AMA involvement was in that in terms of the years of consultation around these changes. Also, do you have any views about what should happen next in the consultative process? Whatever happens through this round of legislative change, there still seems to be some uncertainty about what the ongoing process will be—not about the consultation around a specific application, I think that is quite firmly regulated, but about how the departments will interrelate with everyone who has an interest in this area.

Dr Yong —I will get Dr Chirgwin to comment on that.

Dr Chirgwin —We met recently with the public health doctor from New Zealand who works with FSANZ. He was very much inviting a stronger role for public health in FSANZ and setting up a network of people with specific knowledge in the relevant areas. That seems a new possibility and certainly the AMA welcomes that possibility very strongly. On the more general interaction with FSANZ, the AMA until recently has had almost no interaction with FSANZ. This has been, I would say, mainly because we have not had particular resources to put into it, but also the documents that have come to us have been, on the whole, extremely technical and the AMA’s interest is in a broader area of protection of public health and implementation of the precautionary principle. Somehow there did not seem to be a way we could interact in that more global fashion. We would be keen to have a relationship with the department which is not so much at the level of individual applications but more at a general level. How are we protecting the public? Are we protecting it in the right way? Are we protecting it sufficiently? How are we monitoring the impact? Again, we understand that the issues of the role of the states and territories verses the role of the federal legislation is, as always, complex. The responsibility to ensure that what has been legislated, what has been agreed, and the standards are actually met is mostly held at the level of state and territory. We would be very keen on also being more involved in how that functions in a protective sense for the general public. We are not sure how that will progress.

Senator MOORE —Has that been part of any discussion you have already had with governments?

Dr Chirgwin —Only recently with the doctor from New Zealand.

Senator MOORE —Not with the Australian side?

Dr Chirgwin —No.

Senator MOORE —The AMA has strong consultative links with the government at so many levels. I was wondering whether this was one to be added to the list some time down the track.

Dr Yong —It will probably have to be. We have had a greater interest within the AMA in this area because of the links between metabolic diseases such as diabetes and so on and diet. The increasing scientific evidence is that regulation aspects around food, such as advertising, do have an impact, as do what information is available to the public and the public message coming out from government about what is healthy to eat, what kind of diets are healthy and so on. We can see huge public interest. For the first time we have clear evidence about the links between the impacts of regulation and advertising on food choices people make and their eventual health.

Senator MOORE —My other question—I am sure Senator Humphries will follow up on this—is about the definitional aspect. A number of submissions have suggested that the term ‘public health’ could benefit from some form of definition, particularly when legislation is defined to be looking at it. The aims of this legislation include the term ‘public health’ a lot. I did read with interest the AMA definition, and it is long.

Dr Chirgwin —It is one of the problems. If you want to make it clear, it tends to get long.

Senator MOORE —Do you see that as a problem in itself? There is the need to clarify exactly what we are seeking but these things just grow when you actually do it. You have obviously looked at it within the AMA because you have come up with the AMA definition, but do you see that as an issue for legislation? With most legislation the definition of terms takes quite a long chunk of the process. If we were to include a definition along the lines of the AMA, that would take a few more pages in terms of process. I would like to get some general discussion on record about that. Your submission to this group spent a considerable amount of time talking about the public health implications. You attached your definition and you also attached the wider recommendation in terms of ministerial responsibility, which is part of another debate. This legislation defines that two of its aims are to protect the public and to raise awareness of public health. What are the issues you see as an organisation in trying to grapple with that?

Dr Chirgwin —That is a big one.

Senator MOORE —Yes, it is a biggie.

Dr Chirgwin —If you actually read our document you see there is a two-line definition initially.

Senator MOORE —Yes, I saw that. I like that one.

Dr Chirgwin —One might feel that within the context of legislation you could use a fairly general short definition. I would be keen that the precautionary principle should also be defined. Again, that can get very long, but there are some short ones that would be appropriate for legislation.

Senator MOORE —Do you see this as the short version: ‘Public health is the organised response by society to minimise, illness, injury and disability and to protect and promote health’? That is in terms of a short catchy one.

Dr Yong —That is our short definition and that implies things that go beyond some of the other definitions of public health which have been around surveillance of illness and disease. This is more about saying there is a very clear responsibility upon government to ensure that kind of health outcome through regulatory processes and other things. It is much wider in many ways than some other more traditional definitions of public health, but I think it is in keeping with what we know about the impacts of what happens in the environment on people’s health generally.

Senator MOORE —And that could translate across the various pieces of legislation that we have in looking at a wide range of issues.

Dr Yong —We are using this as a guiding principle on when the AMA should comment on public and government activities.

Senator SIEWERT —I want to go back to the question that I asked of Choice. It concerns this issue around editorial notes. I do not know if you heard some of the evidence earlier, but the Australian Beverages Council was suggesting that editorial notes be included as regulation rather than as editorial notes. Do you have an opinion on that?

Dr Chirgwin —I heard what Clare was saying. I think if they are important then putting them higher up—with them probably having a higher status—would be something that we would support.

Senator SIEWERT —I want to go to your submission where you were talking about the fact that the consultation process has not properly finished on—

Dr Chirgwin —the health claims.

Senator SIEWERT —Yes, and the fact that we are considering legislation and the consultation has not properly finished.

Dr Chirgwin —Yes.

Senator SIEWERT —Your recommendation is that that needs to be completed before the legislative changes are made.

Dr Chirgwin —It does seem somewhat presumptuous to legislate for something that is not yet agreed.

Senator SIEWERT —Yes. When are they likely to be finished?

Dr Chirgwin —You would have to ask FSANZ that one. It has been a long process. I would say that process has been over three or four years.

Senator SIEWERT —Okay, I will follow that up with the department.

Senator ADAMS —On page 2 of your submission you are suggesting that the Senate Standing Committee on Community Affairs ‘carefully considers the balance between public health and safety and the need for industry innovation’ and saying that is a ‘glaring omission in the bill’. Would you like to expand on that? I know you did so in your brief statement earlier, but I seek just a little bit more so we can have some more evidence.

Dr Yong —I will get Margaret to comment further, but, for an overview, what we are concerned about I suppose is that there may be a rebalancing at the moment whereby industry innovation is seen as the driving principle rather than public safety. Our championing of the precautionary principle, we believe, is a way of balancing that, so whilst we can embrace innovation it has to be compared to the evidence available on what other options or alternatives there are for that particular food process or that particular additive. The one that has, on the balance, the least dangerous outcome should be the one that is adopted.

That should have a review built in so that if there is more evidence that a new innovation can produce a safer, better process or food then that can be adopted later on. So it is a dynamic process rather than something that involves a once-only examination and then it is passed. There should be an opportunity for people to come up with the evidence that their innovations will in fact improve the safety and health aspects. If that is the case then they certainly should be adopted. I will let Margaret add to that.

Dr Chirgwin —I think we have significant concerns that there is a sort of an assumption that innovation in food is good and that because the public wants their bread to stay soft for three weeks we should allow chemicals to be added to that food so that is the case. We do know that there is something going wrong with the nutrition of the general public. We are getting the end result, which is far too many people obese and overweight. At the moment I think it isn’t obvious to anyone what it is. We all debate if it is about exercise and whether it is just that they are grazing, but it might even be something that we are doing in the food chain, something that is in food that could be having some of these impacts. We simply do not know at the moment.

I think over the next few years we will begin to have more data in this area because people are collecting it. We know there are more oestrogens in the environment. We know that for quite a lot of these chemicals that are around the minimum residue limits may well mean that people are getting exposed to chemicals that additively are doing something to their control of their appetite. We do not really know. Our feeling after reading this bill is that it is encouraging innovation whereas at this point in time I do not know that I would be encouraging innovation, because we do not actually know that it is safe in the long run for the public. So it is a general sense that we are thinking innovation is good when I would say we have had quite a lot of innovation and it has not done the right thing. It is more that we think precaution is not strong enough here. We would suggest something is going wrong—we do not quite know what and it may not be the food chain—so let us be careful at this point as our role is to protect the public.

CHAIR —Can I follow that question up. You raise a reasonable point about the need for there to be a broader whole of population health perspective with respect to the foods that are brought onto the market, and, on the face of it, the idea of a definition of public health which embraces the health of everybody, not just in a sense as to whether a particular product is healthy, safe and properly labelled, is a reasonable concept. I am struggling with the concept of how it would actually work as to the public if it were part of the process that FSANZ had to consider. Take for example a manufacturer who develops a novel food which is high in sugar, high in fat, and has lots of salt—in all respects very unhealthy. It sounds like the sort of thing I would go for! It is something which is properly labelled, its additives are safe and in other respects conforms with the guidelines. You are saying that FSANZ ought to have that broader public health brief in front of it when it considers the manufacturer’s application. Should it say to the applicant, ‘Sorry, this meets our requirements but it is unhealthy. It is going to contribute to the obesity of the Australian community so we are going to say no.’ How does that principle work in those circumstances?

Dr Chirgwin —There has to have been something novel in it, because if is just high in salt, high in sugar or high in whatever they do not have to come to you.

CHAIR —Let us assume there is something novel about it.

Dr Yong —I think the issue would be something around the novel aspect of it. It would be around a novel ingredient and the manufacturer having to say, ‘We have all this evidence to show that it is safe, that it has been examined in other ways and that it is safe. We have also looked at the alternatives.’ I think part of that will also be adequate public consultation so that other groups can put in the results of research or studies that they have done to confirm that particular claim or otherwise. It is not about the existing sort of unhealthiness of that food, be it high in salt or sugar. I do not think we are suggesting that FSANZ should be looking into those aspects of it, because those are established risks. I think that it will be more a case of adequate labelling and information for consumers so that they are able to make that choice.

At another level—not quite at the FSANZ level but, I guess, at another government level—it is about having agreement on what we tell the public they should be looking for in terms of nutritious food choices. So, from the precautionary principle point of view, it is more about the novel aspect of the food—whether there is a novel ingredient or a novel process with which they are making the food—and saying, ‘If you want this to be approved, you need to show that it is safe and that other alternatives are not as safe as this one,’ so that the there is some improvement in health from this process.

Dr Chirgwin —We have some concerns about nanotechnology. You can have a food of a different colour and a different temperature because of a nanoparticle you have put in it. Isn’t that nice? You have ice-cream that changes colour or something or it might melt in the freezer, and therefore you should not eat it because it has changed colour. But you have put a chemical in it, and we really do not know at the moment what impact that might have on health. We might see that Australia could have a huge market for that product because it is the new thing, but we would expect a strong amount of research into what that nanotechnology might do to the human body. We do know that a food colouring is coming in that is in the nanotechnology area. We simply do not know what nanotechnology will do in the long run to people, and we suggest precaution be very strong in thinking about it.

CHAIR —Are you suggesting that the present arrangements or the proposals in this bill do not give FSANZ the brief to consider those sorts of issues? Surely it would have to consider whether the nanoparticles in the ice-cream would be harmful to health. That would be part of its brief at the moment and under the new legislation as well.

Dr Chirgwin —It would. Within the context of this bill we do not think you strongly state the fact that the role of FSANZ is about protecting the public. It seems that a lot of the language is about encouraging innovation. ‘Encouraging innovation’ are words that are used in every other phrase in one section of the bill but there are no words about the protection of the general public and the population.

CHAIR —I am trying to pin down a practical example of the point you are making in the paragraph that Senator Adams quoted. Your submission says:

The AMA suggests that the Senate Community Affairs Standing committee carefully considers the balance between public health and safety and the need for industry innovation.

Can you point to an example where you think that, at the moment, a certain outcome would result, whereas if the balance were better, as you suggested, a different outcome would come about?

Dr Chirgwin —The comment I have heard is that we often accept the data provided by industry, who wish that the safety of the product be accepted. It is quite costly for FSANZ to go off and get any of its own data. But we would suggest very strongly, particularly in novel food areas where new chemicals might be used inside the veterinary industry which will end up as maximum residue levels, that more than industry based data needs to be used to make the decision as to whether or not a product will be safe. We also feel there is not very much strength in the other issue I talked about, which is to follow-up when we have introduced something novel. How do we collect the data to know whether that is having a long-term impact on the population’s health? The front end and the back end perhaps need some strengthening to emphasise the public good.

Dr Yong —The analogy might be in pharmaceutical regulations, where evidence from the drug manufacturers is not accepted on face value without some independent examination of data or looking for other results. I am sure you are aware that there have been more and more calls for that to be strengthened even in the drug regulation area. We are calling for a similar aspect to that. I think that FSANZ are very aware that rather than the main emphasis of their functioning being about streamlining innovation it should be about preserving health, so there needs to be a very high bar for novel foods to come in if they can provide that sort of information.

Senator SIEWERT —It seems to me that GMOs would fall into that category, because as I understand it GMOs rely, essentially, on industry based information. Would they fall into that category?

Dr Chirgwin —Yes.

Dr Yong —For instance, FSANZ ought to weigh up a claim that a new GMO keeps the food fresher for longer. You could argue that that is beneficial to health, but that has to be weighed up with the other unseen or unknown or unanticipated consequences from genetic manipulation in terms of the appearance of disease further along or having some influence in, say, increasing the rates of cancer and so on. They are the sorts of things the public worries about. I guess it would add to public confidence in FSANZ if they knew that was how FSANZ was weighing up these sorts of considerations.

CHAIR —But do you think that FSANZ gets that balance wrong at the moment? Are there any examples of foods that have been approved where you feel the analysis has not been rigorous enough on those questions at this stage?

Ms Robinson —With the GMOs, when FSANZ looks at safety, it is all very short-term stuff in terms of toxicity and allergic reactions, because that is all they have the capacity for. The information is provided by the manufacturers, as with the pharmaceutical situation. We would be keen on mechanisms that look at the long-term monitoring of the health effects, because we do not have that data. You were asking whether there are any examples. There was one a few weeks ago in the paper, relating to a cornmeal type that was done by Monsanto. It was allowed in America, and FSANZ was saying that we did not get any of that brand in Australia. But what they found in America was that some additional independent research had been done in looking at rats. Something had been done to the gut and intestines of the rats when they were fed just on this corn for a period of six weeks. A German court, I think, commanded that Monsanto got their research reviewed by French independent researchers, and they found some problems with the research. So there are some examples out there, but they are not coming to light particularly clearly. They are based on the problem of having manufacturer-only information.

CHAIR —They are overseas examples, though. Are there any examples in Australia of a food that you feel has been approved without that rigorous examination?

Ms Robinson —No, but I think there is potential there. Part of that comes down to the labelling of foods, because the Australian labelling system is fairly rigorous—much more so than America and Canada, which I think are both voluntary—but, when you compare it with European labelling, European labelling is much more stringent. They argue for labelling around—

CHAIR —So European labelling is more stringent than ours.

Ms Robinson —Yes. Around GMOs, the Europeans argue for labelling that also includes genetically modified elements that occur during the production. So they are there at the beginning but not at the end; whereas Australia has labelling only when they are still in the end product. Again, this is all stuff we do not know much about. We do not know the potential health impacts of something that has got lost in the processing. A few years ago the UK did quite a thorough look at mechanisms for monitoring of GMO problems down the track, and they found that at the time there were no systems to allow that. But we need to try to find those mechanisms, even if it takes time and effort.

CHAIR —Let me be clear about this: the AMA is arguing that the processes at the moment, particularly for innovative products like those using GMOs, need to slow down and that the examination processes need to have more evidence in general on the table about the long-term health impacts than is currently being required.

Dr Yong —Sometimes that may mean continual monitoring after you introduce a novel food. So I think that is where the balance has to be. It should not be a somewhat luddite philosophy of saying that anything new cannot come in, but sometimes the technology and the research methods that bring to light unseen consequences of novel foods may not come further down the track. I think our concern is that there is no regime at the moment to monitor the impact further down, even after approval of a food.

We suggest that is something that could be examined or encompassed within the bill which would make sure that new information that comes to light is actually considered in light of that particular food.

Dr Chirgwin —Trans fats would be an example. They have been approved for being in the diet here, but now we would suggest that the scientific evidence is pretty overwhelming that, really, we should not have the manufactured, man-made added trans fats. We do not mean the ones that turn up in meat and in ruminant products which we have eaten for a long time—and some seem beneficial—but those manufactured by mankind that need to be out of the food chain. It was not necessarily wrong that they were approved on the basis of the evidence that we had at the time, but we needed the monitoring and we now need a process to get them out. We are just keen on the kind of process that says that sometimes we do not know how safe something is when we let it into the food chain but we are going to keep a tight eye on it.

CHAIR —You used the example before about the nanoparticles in ice-cream. I assume those sorts of things, because they are a new sort of product and not just a new food, would need to be approved usually through a TGA type process. Have I understood that correctly?

Dr Chirgwin —FSANZ have a watching brief on it at the moment; we do not think they even have a process yet.

Dr Yong —I think it only comes under the TGA if there is a particular claim about it being therapeutic or if there is a health claim. I do not think it has to go to TGA if it is merely a food additive.

Dr Chirgwin —It will come through FSANZ.

Ms Robinson —My understanding is that, at least up until February, FSANZ only had a watching brief on the nanotechnology side; that it recognised that it was happening and being used in places like the UK but that it was not yet an issue here. Our argument is that we need those processes set up to be able to address it.

CHAIR —Thank you very much for the evidence you have given today. It has been very useful and we can take up some of those issues with the department and FSANZ in a moment. I thank the three of you for appearing and for the submission you made to the committee.

[11.53 am]