A Bill for an Act to amend the law relating to competition and consumers, and for other purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Competition and Consumer Amendment (Australian Food Labelling) Act 2012.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | |
| 2. Schedule 1 | 1 January 2014. | 1 January 2014 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Competition and Consumer Act 2010
1 Subsection 2(1) of Schedule 2
Insert:
country of origin labelling requirement: see section 137A(1).
2 Subsection 2(1) of Schedule 2
Insert:
food has the same meaning as in the Food Standards Australia New Zealand Act 1991.
3 After Part 3‑4 of Schedule 2
Insert:
Part 3‑4A—Country of origin labelling requirements for food
137A Country of origin labelling requirements
(1) The following table sets out the country of origin labelling requirements that apply to particular kinds of food.
Note 1: A particular kind of food may be covered by more than one item of the table.
Note 2: The country of origin labelling requirements are taken not to apply to wine goods in certain circumstances, see section 137B(2).
| Country of origin labelling requirements |
| Item | Food | Labelling requirements that apply |
| 1 | Food that is, or is comprised of ingredients or components that are, manufactured or produced wholly or partly in Australia | (a) a representation that the food is made in, or is a product of, Australia must not be made about the food, whether on the food’s packaging or otherwise |
| 2 | Packaged food, 90% or more of the total weight (excluding water) of which is comprised of ingredients or components that were grown in Australia | (a) there must be a statement on the package that the food is “made of Australian ingredients” |
| 3 | Packaged food, less than 90% of the total weight (excluding water) of which is comprised of ingredients or components that were grown in Australia | (a) a statement that the food is “made of Australian ingredients” must not appear on the package |
| 4 | Regulated fresh food that is displayed for retail sale other than in a package | (a) there must be a label on or in connection with the display; and (b) there must be a statement on the label that: (i) identifies the country or countries in which the food was grown; or (ii) indicates that the food is local food, imported food or a mix of local and imported food, as the case may be |
| 5 | Unpackaged food that: (a) was not grown in Australia; or (b) contains any ingredients or components that were not grown in Australia | (a) a representation that the food was grown in Australia must not be made about the food |
(2) For the purpose of item 1 of the table in subsection (1), a representation is a representation that food is a product of Australia whether the representation uses the words “product of”, “produce of” or any other grammatical variation of the word “product”.
(3) For the purpose of items 2 and 3 of the table in subsection (1), disregard the weight of packaging material in working out the total weight of the food.
(4) For the purpose of item 4 of the table in subsection (1), a reference to regulated fresh food is a reference to the following:
(a) fish, including:
(i) cut fish;
(ii) filleted fish;
(iii) fish that has been mixed or coated with one or more other foods;
(iv) fish that has been cooked, smoked, dried, pickled or that has undergone other processing;
(b) fresh pork, whole or cut (other than fresh pork that has been mixed with food that is not regulated fresh food);
(c) pork, whole or cut, that:
(i) has been preserved by curing, drying, smoking or other means; and
(ii) has not been mixed (other than for a purpose mentioned in subparagraph (c)(i)) with food that is not regulated fresh food;
(d) fresh fruit and vegetables, whole or cut;
(e) fresh fruit and vegetables, whole or cut, that:
(i) have been preserved, pickled, cooked, frozen or dehydrated; and
(ii) have not been mixed (other than for a purpose mentioned in subparagraph (e)(i)) with food that is not regulated fresh food.
(5) Food, or an ingredient or component of food, is grown in a country if the food, ingredient or component, as the case may be:
(a) is materially increased in size or materially altered in substance in the country by natural development; or
(b) germinated or otherwise arose in, or issued in, the country; or
(c) is harvested, extracted or otherwise derived from an organism that has been materially increased in size, or materially altered in substance, in the country by natural development.
137B Relationship with certain other labelling requirements
(1) The country of origin labelling requirements prevail over the following, to the extent of any inconsistency:
(a) the Australian New Zealand Food Standards Code (within the meaning of the Food Standards Australia New Zealand Act 1991);
(b) any rules, referred to in section 173 of the Trade Marks Act 1995, governing the use of a certification trade mark.
(2) If:
(a) a country of origin labelling requirement would, apart from this section, apply to wine goods (within the meaning of the Wine Australia Corporation Act 1980); and
(b) the country of origin labelling requirement is inconsistent with a requirement that applies to the wine goods under that Act;
the country of origin labelling requirement is taken not to apply to the wine goods to the extent of the inconsistency.
137C Supplying etc. food that does not comply with country of origin labelling requirements
(1) A person must not, in trade or commerce, supply food of a particular kind if:
(a) a country of origin labelling requirement applies to food of that kind; and
(b) the food does not comply with that requirement.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply food the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce, possess or have control of food the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(4) In a proceeding under Part 5‑2 in relation to a contravention of subsection (3), it is a defence if the defendant proves that the defendant’s possession or control of the food was not for the purpose of supplying the food.
(5) Subsections (1), (2) and (3) do not apply to food if it is supplied or is intended to be supplied:
(a) for immediate consumption; and
(b) by a person, facility or institution of one of the following kinds:
(i) a restaurant;
(ii) a school, including a school canteen;
(iii) a caterer;
(iv) a self‑catering institution;
(v) a prison;
(vi) a hospital or hospice;
(vii) an aged care facility;
(viii) a person, facility or institution of a kind prescribed by the regulations.
(6) Subsections (1), (2) and (3) also do not apply to food that is supplied, or intended to be supplied, in circumstances prescribed by the regulations.
4 After Part 4‑4 of Schedule 2
Insert:
Part 4‑4A—Offences relating to country of origin labelling requirements for food
204A Supplying etc. food that does not comply with country of origin labelling requirements
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies food of a particular kind; and
(b) a country of origin labelling requirement applies to food of that kind; and
(c) the food does not comply with the requirement.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply food of a particular kind; and
(b) a country of origin labelling requirement applies to food of that kind; and
(c) the food does not comply with the requirement.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce, possesses or has control of food of a particular kind; and
(b) a country of origin labelling requirement applies to food of that kind; and
(c) the food does not comply with the requirement.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(4) Subsection (3) does not apply if the person does not possess or control the food for the purpose of supplying the food.
(5) Subsections (1), (2) and (3) do not apply to food if it is supplied or is intended to be supplied:
(a) for immediate consumption; and
(b) by a person, facility or institution of one of the following kinds:
(i) a restaurant;
(ii) a school, including a school canteen;
(iii) a caterer;
(iv) a self‑catering institution;
(v) a prison;
(vi) a hospital or hospice;
(vii) an aged care facility;
(viii) a person, facility or institution of a kind prescribed by the regulations.
(6) Subsections (1), (2) and (3) also do not apply to food that is supplied, or intended to be supplied, in circumstances prescribed by the regulations.
5 Subsection 210(1) of Schedule 2
Omit “or 203”, substitute “, 203 or 204A”.
6 At the end of subsection 210(1) of Schedule 2
Add:
; and (e) in the case of a contravention of section 204A—the defendant:
(i) did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with the country of origin labelling requirement to which the contravention relates; or
(ii) relied in good faith on a representation by the person from whom the defendant acquired the goods that there were no country of origin labelling requirements for such goods.
7 Subsection 210(1) of Schedule 2 (note)
Repeal the note, substitute:
Note: Section 194 is about the supply of consumer goods that do not comply with safety standards, section 203 is about the supply of good that do not comply with information standards, and section 204A is about the supply of food that does not comply with country of origin labelling requirements.
8 After subparagraph 224(1)(a)(ix) of Schedule 2
Insert:
(ixa) section 137C(1), (2) or (3) (which are about country of origin labelling requirements for food);
9 Subsection 224(3) of Schedule 2 (after item 13 of the table)
Insert:
| 13A | section 137C(1), (2) or (3) | (a) if the person is a body corporate—$1.1 million; or (b) if the person is not a body corporate—$220,000. |
10 After subparagraph 248(1)(a)(v) of Schedule 2
Insert:
(va) section 137C(1), (2) or (3) (which are about country of origin labelling requirements for food);
11 Paragraph 252(1)(a) of Schedule 2
After “safety standard”, insert “or country of origin labelling requirement”.
12 At the end of subsection 252(1) of Schedule 2
Note: Country of origin labelling requirements only apply to consumer goods that are food, see Part 3‑4A.
13 Subparagraph 252(2)(c)(i) of Schedule 2
After “safety standard”, insert “or country of origin labelling requirement”.
14 Subparagraph 252(2)(c)(ii) of Schedule 2
After “safety standard”, insert “, country of origin labelling requirement”.
15 After subsection 255(1) of Schedule 2
Insert:
(1A) Subsection (1) does not apply in respect of a representation made about food.
Imported Food Control Act 1992
16 Subsection 3(1)
Insert:
country of origin labelling requirement has the same meaning as in Schedule 2 to the Competition and Consumer Act 2010.
17 Subsection 8A(1)
Repeal the subsection, substitute:
(1) A person may only deal with food imported into Australia if the food meets:
(a) applicable standards relating to information on labels for packages containing food; and
(b) country of origin labelling requirements that apply to the food.
Penalty: Imprisonment for 10 years.
18 Subsection 9(1B)
Repeal the subsection, substitute:
(1B) Subsection (1A) does not apply to a dealing with food for the purpose of altering or replacing the label on the package containing the food in order to meet:
(a) applicable standards relating to information on labels for packages containing food; or
(b) country of origin labelling requirements that apply to the food.
Note: A defendant bears an evidential burden in relation to a matter in this subsection. See subsection 13.3(3) of the Criminal Code.