On 1 July 2016, a new country of origin food labelling system commenced under the Australian Consumer Law (ACL).
Our frequently asked questions provide detailed information about aspects of the new system.
The Country of Origin Food Labelling Information Standard (Standard) commenced on 1 July 2016. The Standard establishes a new system for the country of origin labelling of food products sold in Australia. Businesses have up to two years to transition to the labelling requirements set out in the Standard. During the transition period, businesses may either:
- voluntarily adopt the requirements of the Standard or
- continue to comply with the requirements around country of origin labelling set out in the Food Standards Code.
From 1 July 2018, businesses must comply with the Standard’s country of origin labelling requirements.
The Standard requires certain foods offered or suitable for retail sale in Australia (e.g. food sold to the public in stores or markets, online or from vending machines) to carry country of origin labelling.
Food is defined broadly to include:
a) any substance or thing used, capable of being used, or represented as being for human consumption (whether it is live, raw, prepared or partly prepared)
b) any substance or thing used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a)
c) any substance used in preparing a substance or thing referred to in paragraph (a)
d) chewing gum (including its ingredients or additives, or any substance used in its preparation).
The Standard does not apply to food that is:
- unpackaged (other than unpackaged fish, certain meats, fruits and vegetables, nuts, herbs, spices, fungi, legumes and seeds, or a mix of any of these foods)
- only intended for export to overseas markets
- sold by restaurants, canteens, schools, caterers, self-catering institutions, prisons, hospitals, medical institutions or at fund-raising events (e.g. a cake stall at a school fete)
- made and packaged on the premises where it is sold (e.g. bread in a bakery)
- delivered, packaged and ready for consumption, as ordered by the consumer, other than when sold from a vending machine (e.g. home delivered pizza)
- for special medical purposes
- not for human consumption (e.g. pet food).
The Standard will also not apply to goods that fall within the definition of a ‘therapeutic good’ under the Therapeutic Goods Act 1989.
A packaged food is ‘suitable for retail sale’ if it could be sold by a business without any further processing, packaging or labelling. Determining whether a food is suitable for retail sale should be considered objectively, based on fact.
If a food is suitable for retail sale, it must comply with the Standard (unless an exemption applies) even if it is being sold at wholesale. Food that is sold in large quantities or labelled ‘not for retail sale’ may still be considered suitable for retail sale, as will foods sold to restaurants or cafes that can be sold without any further processing, packaging or labelling. These products need to be labelled in accordance with the requirements in the Standard.
Yes, protein powders and ready-made protein drinks are ‘food’ for the purposes of the Country of Origin Food Labelling Information Standard and will require country of origin labelling.
Goods that fall within the definition of a ‘therapeutic good’ under the Therapeutic Goods Act 1989 will not be classed as ‘food’ to which the Country of Origin Food Labelling Information Standard applies.
While protein powders and ready-made protein drinks may appear to have a ‘therapeutic use’ (e.g. as sports or general dietary supplements), the Therapeutic Goods Act provides that a good will not be a ‘therapeutic good’ if it is subject to a standard under the Food Standards Australia New Zealand Act 1991. This includes the standards within the Australia New Zealand Food Standards Code (Food Standards Code).
The ACCC considers that protein powders and many ready-made protein powder based drinks are likely to be subject to the following standards in the Food Standards Code:
- Standard 2.9.4 - Formulated Supplementary Sports Foods; and/or
- Standard 2.9.3 - Formulated Meal Replacements and Formulated Supplementary Foods
and would therefore be considered ‘food’ for the purposes of the Country of Origin Food Labelling Information Standard.
The ACCC is further of the view that these food products are not covered by the Country of Origin Food Labelling Information Standard’s ‘soft drinks and sports drinks’ non-priority food category and should therefore comply with the priority food labelling requirements.
In February 2017, the Government passed the Competition and Consumer Amendment (Country of Origin) Act 2017 amending the definition of ‘substantial transformation’.
Under the definition goods are substantially transformed in a country if:
- they were ‘grown’ or ‘produced’ in that country or
- as a result of one or more processes undertaken in that country, the goods are fundamentally different in identity, nature or essential character from all of their imported ingredients or components.
Processes that only change the form or appearance of imported ingredients or components no longer qualify as a ‘substantial transformation.’
This new definition has immediate effect. Businesses that currently make ‘made in’ claims about their products should reassess whether they are still able to make these claims.
Will turning industrial chocolate into chocolate products satisfy the ‘substantial transformation’ test?
The process of melting, conching and tempering imported industrial chocolate to make chocolate is, without more, unlikely to amount to a ‘substantial transformation’. Whilst the finished chocolate may be a more desirable form of chocolate with improved qualities, the ACCC does not consider it to be fundamentally different to the imported chocolate, which would have already acquired the basic distinctive qualities of chocolate in the country where the raw ingredients were combined.
However, chocolates or chocolate bars that are filled with raw local and/or imported ingredients that have been mixed or processed to create the filling in Australia and then coated in tempered imported chocolate would be more likely to satisfy the substantial transformation test.
Whether individual products will satisfy this test (and be able to make a ‘made in’ claim) will depend on the other ingredients that are used to make the food product and the processes involved.
A food will be a priority food item unless it belongs to one of the following non-priority food categories:
- seasoning (e.g. salt, spices and herbs but excluding mustards, sauces and chutneys)
- confectionery (e.g. chocolate, lollies, ice cream, popcorn but excluding sugar and sugar mixes, jams, honey and other non-chocolate based spreads)
- tea and coffee (in dry, or ready to drink, form)
- biscuits and snack food (e.g. chips, crackers and ready to eat savoury snacks but excluding cakes, muesli bars and processed nuts)
- bottled water
- soft drinks and sports drinks (excluding non-carbonated fruit or vegetable drinks, milk and milk substitute drinks)
- alcoholic beverages.
The Dictionary in the Standard provides further information about what foods these categories do and do not include.
Non-priority foods will only be required to carry a country of origin text statement identifying where the food was grown, produced, made or packaged. If the food is packaged using food from more than one country, the label must indicate that the food contains imported ingredients or has multiple origins. The statement need not be in a box.
Coffee plants are grown and later processed in Australia to make roasted coffee beans for retail sale. The coffee packaging need only carry a legible text statement such as ‘Grown in Australia’ or ‘Produced in Australia’ as it is a non-priority food.
For more extensive information about non-priority food labelling requirements, refer to the ACCC Country of Origin Food Labelling publication.
If businesses are in any doubt about whether their product is a priority or non-priority food, they should seek legal advice or err on the side of caution and employ the higher standard of labelling. Businesses that sell non-priority foods are free to adopt the more comprehensive labelling requirements for their products if they wish to do so. However, if businesses do adopt the higher standard then they should be fully compliant with the relevant requirements to avoid potentially misleading consumers.
Priority foods are all foods that are not captured by the Standard’s non-priority food categories.
While all foods covered by the Standard must carry country of origin labelling, priority foods have additional graphic and information labelling requirements:
- in most instances, priority foods grown, produced or made in Australia will be required to carry a three component label with the kangaroo logo, a bar chart, and explanatory text stating whether the food was grown, produced or made in Australia and identifying the percentage of Australian ingredients in the food
- in most instances, priority foods packed in Australia will be required to carry a two component label with a bar chart and explanatory text identifying that the food was packed in Australia and the percentage of Australian ingredients
- at a minimum, imported priority foods will be required to carry a country of origin text statement in a clearly defined box.
For more extensive information about priority food labelling requirements, refer to the ACCC Country of Origin Food Labelling publication.
If businesses are in any doubt about whether their product is a priority or non-priority food, they should seek legal advice or err on the side of caution and employ the higher standard of labelling.
The ACCC considers that most nut-based bars would be subject to the Standard’s priority food labelling requirements. In the ACCC’s view, such products would not fall within the 'biscuits and snack foods' non-priority category.
The ACCC is also of the view that protein bars, which are subject to:
- Standard 2.9.4 - Formulated Supplementary Sports Foods; and/or
- Standard 2.9.3 - Formulated Meal Replacements and Formulated Supplementary Foods
would also not be covered by the 'biscuits and snack foods' category and should therefore comply with the Standard’s priority food labelling requirements.
In general, all substances that go into making a food (including food additives and water) are to be counted as ‘ingredients’ when determining the proportion of Australian ingredients in the food.
The calculation is to be based on the ingoing weight of all of the ingredients prior to any processing. It is important to note that the following are not to be counted as ingredients, when calculating the percentage of Australian content in a food:
- processing aids
- water when it is used as a ‘liquid packing medium’ for a food and that medium is generally not consumed as part of the food (e.g. brine in a tin of tuna)
- water that is used in the preparation of a food but does not form part of the finished food (e.g. the excess water that is used to cook pasta or rice).
There are rules around when water can be used to calculate the proportion of Australian ingredients in a food (discussed below).
How do I know if water is an ingredient or whether it is being used to reconstitute dehydrated or concentrated ingredients?
In general, where water is being used as an ingredient in a food product, that water will have as its origin the country in which it was collected or harvested.
However, if water is being used in a food to reconstitute dehydrated or concentrated ingredients or other components of food (e.g. additives), the water will have the country of origin of that ingredient or component.
The Standard does not define what ‘reconstitute’ means, so it is necessary to consider the ordinary meaning of the word. The Macquarie Dictionary defines 'reconstitute' as ‘to constitute again; reconstruct; recompose’ and gives the example of reconstituted milk. Therefore, for reconstitution to occur, the water added to the food would need to restore the dehydrated or concentrated food back to its original state.
Fruit juice concentrate + water
A fruit juice drink is manufactured in Australia using an imported fruit juice concentrate and water harvested in Australia. The water is being added for the purposes of reconstituting the concentrate and will be considered to be imported water.
Dry batter pre-mix + water
An imported dry batter pre-mix (made from salt, sugar, herbs, spices, dried vegetables, flavouring and food additives, such as mineral salts and thickeners) is combined with water collected in Australia to make a meat marinade. In this instance, the water is being used to make something new (a marinade/batter) rather than to recompose or reconstitute the pre-mix (or its ingredients). The water added to the pre-mix would be taken to have the country of origin in which the water was collected or harvested (in this instance Australia).
Dried pasta cooked in water
Whilst uncooked dried pasta is a type of dehydrated food, the water used to cook the pasta is not being used for the purposes of reconstitution. Rather than returning the food to its original state, the water serves to produce a food that is fundamentally different from that which existed prior to drying (i.e. raw pasta unsuitable for consumption). The water that is absorbed by the pasta during the cooking process would be regarded as an ingredient in the food and would have the origin of the country in which it was collected or harvested.
A ‘processing aid’ is a substance that performs a technological purpose in the processing of raw materials, foods or ingredients, but which does not perform a technological purpose in the final food product for sale e.g. a yeast enzyme that is used to make bread dough rise prior to baking.
By comparison, a ‘food additive’ is a substance that does perform a technological function in the final food e.g. an anti-caking agent that is added to grated cheese to reduce the tendency of individual food particles to adhere.
If you are unsure whether a substance is an additive or a processing aid, you should be able to source information from the supplier/manufacturer about whether the substance performs a technological function in the final food.
Australian content: Dairy and salt (98%)
Imported content: Rennet (2%)
Rennet is used in the making of cheese to separate curds and whey, but performs no technological purpose in the final food for sale. It, therefore, would be considered a processing aid, and the proportion by weight of the Australian ingredients in the cheese would be 100% (as the Rennet is not included in the calculation).
Australian content: Pork, salt and water (that has been absorbed into the meat in the curing process) (96%)
Imported content: Brine mix (absorbed into the meat in the curing process) (4%)
The addition of brine to raw pork as a curing agent does not qualify as a processing aid as it has a continuing technological function in the final product. Therefore, the proportion by weight of the Australian ingredients in the ham would be 96% (the pork and water) as the imported brine mix would be counted as an ingredient when working out the calculation.
Under the Standard, businesses are required to make an assessment as to the weight of Australian-grown or produced ingredients in certain foods. The percentage of Australian content must be expressed on the label as the minimum proportion of Australian content unless the food has the option of instead relying on an average content claim.
Businesses cannot merely guess what the approximate percentage of Australian content is; the percentage must be calculated as per the method outlined in the Standard.
The use of an estimate (without calculating the actual percentage) risks breaching not only the Standard but also the ACL’s key provisions against false or misleading representations and/or misleading or deceptive conduct if the business:
- overestimates the percentage of Australian content in a food
- fails to account for instances where ingredient sources vary.
A food product made from 68% Australian ingredients may be labelled as containing ‘at least 60% Australian ingredients’, even though the Standard would allow the text on the label to state 68%.
However, if the percentage of Australian content decreased below 60% due to a change in supplier and the business continued using the ‘at least 60%’ label, the business would be at risk of breaching the ACL, in addition to the Standard.
The labelling requirements under the Standard will vary depending on the type of food product and whether it was grown, produced, packed, or made in Australia or another country.
To help businesses select the right labels for their products, the Government has developed an online decision tool, which is available at business.gov.au The Country of Origin Food Labelling Style Guide v1.0 ( PDF 2.21 MB ) is available to assist businesses to design their packaging and marketing material.
Businesses are encouraged to seek legal advice prior to changing their labels to ensure they are meeting the requirements of the Standard.
For packaged products, country of origin labels must be placed on each individual product. Country of origin labels can be placed anywhere on the packaging, but the words contained in the label must be legible and prominent from the background colour.
Unpackaged foods must have a label displayed on, or close to, the product e.g. on a shelf talker, hanging sign or display card. This means that loose fruit or vegetables will not need to be individually labelled; it will be sufficient that the country of origin label is displayed close to the product.
Fresh fruit and vegetables in transparent packaging (e.g. plastic wrap, netting or citrus bags) can be labelled as either packaged or unpackaged.
The Standard provides that priority foods sold in small packages are exempt from displaying the graphical elements (i.e. logo and/or bar chart) that may otherwise be required for a food.
To understand what qualifies as a ‘small package’ businesses must consider the meaning of the term under the Food Standards Code. A small package is defined as ‘a package with a surface area of less than 100cm2’. In the ACCC’s view, the surface area is a reference to the external or exposed face of the assembled package.
Priority foods in small packages must still display the explanatory text of the relevant label in a clearly defined box on the label attached to the package but will not be required to display the graphical elements of the applicable label (i.e. the logo and/or bar chart).
If your food product does not qualify for the small package exception you will be required to display the full standard mark on your package in compliance with the Standard.
The Standard only applies to food items offered for sale in Australia. Accordingly, food products exported overseas (and not reimported into Australia) will not be required to comply with the Standard.
Food imported into Australia will be required to carry a country of origin text statement that identifies the country of origin of the product. If ingredients are from more than one country and packaged in a different country, the label must say that food is of multiple origins, or from imported ingredients.
- Maple syrup made from Canadian ingredients and manufactured in Canada could be labelled as ‘produced in Canada’ or ‘made in Canada’.
- Mixed nuts and fruit from multiple countries are combined and packaged for sale in a factory in Mexico. As the ingredients were not substantially transformed in Mexico, a ‘made in’ claim could not be made. The fruit and nut mix could be labelled as either ‘packed in Mexico from imported ingredients’ or ‘packed in Mexico from multiple origins’.
If a business wishes to indicate the presence of Australian ingredients in an imported food, it may adopt the bar chart and include text about the proportion of Australian ingredients.
An apple and pear fruit juice is manufactured in New Zealand from 22% Australian ingredients (pears) and 78% New Zealand ingredients (apples). As an alternative to a simple text statement such as ‘made in New Zealand’, the manufacturer could use a bar chart label (coloured 20%) with the text statement ‘made in New Zealand with at least 22% Australian ingredients’.
Yes. If you make a country of origin claim you should be able to substantiate it.
The Standard requires that businesses keep records supporting a country of origin claim for 12 months after the sale of the food item. This obligation does not apply to an unpackaged single ingredient food from a single country (e.g. fish or cuts of meat).
Records could include information regarding the proportion of Australian ingredients, traceability information, contact details of who you received food products from or who products were supplied to, dates of transactions, batch or lot identification, volume or quantity of products and relevant production records.
You will be required to provide this information to the ACCC or another Australian Consumer Law regulator upon request.