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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Food Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Food Act 2003 No 43 3
Schedule 2 Amendment of Food Regulation 2010 8
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2010
New South Wales
Food Amendment Bill 2010
Act No , 2010
An Act to amend the Food Act 2003 with respect to the display of nutritional
information by certain food businesses; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Food Amendment Bill 2010
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Food Amendment Act 2010.
2 Commencement
(1) This Act commences on the date of assent, except as provided by
subsections (2) and (3).
(2) Schedule 2 (other than Schedule 2 [2]) commences on 1 February 2011.
(3) Schedule 2 [2] commences on 1 February 2012.
Page 2
Food Amendment Bill 2010
Amendment of Food Act 2003 No 43 Schedule 1
Schedule 1 Amendment of Food Act 2003 No 43
[1] Section 43A
Insert after section 43:
43A Powers of authorised officers and food safety auditors may be
exercised concurrently
A person who is a food safety auditor and an authorised officer
and who is exercising the functions of a food safety auditor in
relation to any premises or food transport vehicle may also
exercise the functions of an authorised officer but only if the
person has first produced his or her certificate of authority issued
under section 115:
(a) to the proprietor of the food business that uses those
premises or food transport vehicle or to a person who is
apparently in charge of those premises or that vehicle, and
(b) to any person whom the authorised officer requires to
produce anything or to answer any question.
[2] Section 99 Obstructing or impersonating food safety auditors
Insert after section 99 (2):
(3) A person must not threaten, intimidate or assault a food safety
auditor in the exercise of the auditor's functions under this Act.
Maximum penalty: 500 penalty units.
[3] Part 8 Regulation of food businesses
Insert after Division 3:
Division 4 Requirements relating to display of
nutritional information for food
106K Definitions
In this Division:
menu means a menu, in printed or electronic form, that lists or
otherwise shows one or more items of food and that:
(a) is on a board, poster, leaflet or the like at the premises from
which the item or items of food in the menu are sold, or
(b) is distributed or available outside of the premises from
which the item or items of food in the menu are sold by
means of the internet or a printed leaflet.
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Food Amendment Bill 2010
Schedule 1 Amendment of Food Act 2003 No 43
ready-to-eat food means food that is in a state in which it is
ordinarily consumed, but does not include nuts in the shell or raw
fruit or vegetables that are intended to be hulled, peeled or
washed by the consumer.
sell means sell as defined in section 4 (1), but by retail only.
standard food item--see section 106L.
standard food outlet--see section 106M.
106L Meaning of "standard food item"
(1) In this Division, standard food item means an item of
ready-to-eat food for sale that is sold in servings that are
standardised for portion and content and that:
(a) is listed or otherwise shown on a menu, or
(b) is displayed for sale with a price tag or label or an
identifying tag or label,
and includes any item of ready-to-eat food for sale that is of a
kind, class or description prescribed by the regulations.
(2) If a number of standard food items are shown or displayed for
sale as referred to in subsection (1) as a combination, the
combination is to be treated for the purposes of this Division as a
single standard food item.
(3) If an item of food referred to in subsection (1) is shown or
displayed for sale in different standard sizes or portions (for
example, small, medium or large), each standard size or portion
of the item of food is to be treated as a separate standard food
item.
(4) Despite subsection (1), standard food item does not include an
item of food that is packaged in a way that is prescribed by the
regulations as prepackaged.
106M Meaning of "standard food outlet"
(1) In this Division, a standard food outlet means premises at which
standard food items are sold by a food business if:
(a) the food business sells standard food items at other
premises or while operating in a chain of food businesses
that sell standard food items, and
(b) at least one of the standard food items that are sold at the
premises has been standardised for portion and content so
as to be substantially the same as standard food items of
that type sold at those other premises or by the other food
businesses in the chain.
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Food Amendment Bill 2010
Amendment of Food Act 2003 No 43 Schedule 1
(2) For the purposes of this section, a food business is operating in a
chain of food businesses that sell standard food items if:
(a) it is operating as one of a group of food businesses that sell
standard food items under franchise arrangements with a
parent business or under common ownership or control, or
(b) it sells standard food items under the same trading name as
a group of other food businesses that sell standard food
items.
106N Requirement for certain standard food outlets to display
nutritional information
(1) This section applies to a standard food outlet that is of a kind,
class or description prescribed by the regulations.
(2) The proprietor of a standard food outlet to which this section
applies must ensure that:
(a) nutritional information of a kind prescribed by the
regulations is displayed in relation to standard food items
that are sold at the outlet, and
(b) the nutritional information is determined in accordance
with any requirements of the regulations for nutritional
information of that kind, and
(c) the nutritional information is displayed in the manner and
locations prescribed by the regulations for nutritional
information of that kind.
(3) A person must not intentionally contravene subsection (2).
Maximum penalty: 500 penalty units in the case of an individual
and 2,500 penalty units in the case of a corporation.
(4) A person must not contravene subsection (2).
Maximum penalty: 100 penalty units in the case of an individual
and 500 penalty units in the case of a corporation.
(5) If, on the trial of a person charged with an offence against
subsection (3) the court is not satisfied that the person committed
the offence but is satisfied that the person committed an offence
against subsection (4), the court may find the person not guilty of
the offence charged but guilty of an offence against
subsection (4), and the person is liable to punishment
accordingly.
Page 5
Food Amendment Bill 2010
Schedule 1 Amendment of Food Act 2003 No 43
106O Voluntary display of nutritional information to meet certain
requirements
(1) This section applies to a standard food outlet other than a
standard food outlet to which section 106N applies.
(2) The proprietor of a standard food outlet to which this section
applies must not display nutritional information of a kind
prescribed by the regulations in relation to standard food items
that are sold at the outlet unless the nutritional information:
(a) is determined in accordance with any requirements of the
regulations for nutritional information of that kind, and
(b) is displayed in the manner and locations prescribed by the
regulations for nutritional information of that kind.
Maximum penalty: 100 penalty units in the case of an individual
and 500 penalty units in the case of a corporation.
106P Regulations relating to explanatory material about nutritional
information
The regulations may make provision for or with respect to
regulating or prohibiting the display or distribution by a standard
food outlet of explanatory material or any other material about
nutritional information for food or for any type or class of food.
106Q Exemptions from operation of Division
(1) The regulations may exempt, with or without conditions, any
class of persons, food businesses, premises, food or activities
from the operation of all or any of the provisions of this Division.
(2) Any such exemption has no effect during any period in which a
condition to which it is subject is not complied with.
106R Review of Division and regulations under the Division
(1) The Minister is to review this Division and any regulations made
under this Division to determine whether:
(a) the policy objectives of this Division and those regulations
remain valid, and
(b) the terms of this Division and those regulations remain
appropriate for securing those objectives, and
(c) the terms of this Division or those regulations, or both,
should be amended so that the nutritional information to be
displayed includes information relating to fat and salt.
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Food Amendment Bill 2010
Amendment of Food Act 2003 No 43 Schedule 1
(2) The review is to be undertaken as soon as possible after 1
February 2012.
(3) A report on the outcome of the review is to be tabled in each
House of Parliament within 12 months after that date.
[4] Section 119 Time for instituting proceedings
Omit section 119 (1). Insert instead:
(1) Proceedings for an offence against this Act or the regulations
may be instituted not later than 2 years after the date on which the
offence is alleged to have been committed.
[5] Section 128 Certificate evidence and evidence of analysts
Omit section 128 (3).
[6] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Food Amendment Act 2010
[7] Schedule 2, Part 8
Insert after Part 7:
Part 8 Provisions consequent on enactment of
Food Amendment Act 2010
25 Application of new offences relating to display of nutritional
information by standard food outlets
A person does not commit an offence against section 106N or
106O until on or after 1 February 2012.
Page 7
Food Amendment Bill 2010
Schedule 2 Amendment of Food Regulation 2010
Schedule 2 Amendment of Food Regulation 2010
[1] Part 2B
Insert after Part 2A:
Part 2B Requirements for display of nutritional
information
16P Definitions
In this Part, expressions defined for the purposes of Division 4 of
Part 8 of the Act have the same meanings as in that Division.
16Q Definition of "prepackaged food"
For the purposes of section 106L (4) of the Act, food is
prepackaged if the food:
(a) arrives at the premises from which it is sold in a container
or wrapper in or by which the food is wholly encased,
enclosed, contained or packaged (whether or not the food
is also in an outer container or wrapper that encases,
encloses, contains or packages multiple units of the food),
and
(b) is not removed from its container or wrapper (other than
any such outer container or wrapper) before its sale at
those premises.
16R Standard food outlets required to display nutritional information
The following standard food outlets are prescribed as standard
food outlets to which section 106N of the Act applies:
(a) a standard food outlet of a food business that sells standard
food items at 20 or more locations in New South Wales or
at 50 or more locations in Australia,
(b) a standard food outlet of a food business that is operating
in a chain of food businesses that sell standard food items
if together those businesses sell standard food items at 20
or more locations in New South Wales or at 50 or more
locations in Australia.
Page 8
Food Amendment Bill 2010
Amendment of Food Regulation 2010 Schedule 2
16S Kinds of nutritional information required to be displayed
(1) For the purposes of section 106N of the Act, the following kinds
of nutritional information are prescribed:
(a) the average energy content of each standard food item for
sale by the standard food outlet concerned expressed in
kilojoules,
(b) the following statement:
The average adult daily energy intake is 8,700 kJ.
(2) The method of determining the nutritional information referred to
in subclause (1) (a) is to calculate the average energy content of
each standard food item in accordance with Standard 1.2.8 of the
Food Standards Code, making necessary adjustments to ensure
that the calculation is done in relation to the whole of the food
item rather than per 100g.
(3) The number of kilojoules calculated as referred to in
subclause (2) may be rounded to the nearest 10 kJ.
16T Kind of nutritional information voluntarily displayed that must
comply with requirements
For the purposes of section 106O of the Act:
(a) the kind of nutritional information that is prescribed is the
energy content of any standard food item for sale at the
standard food outlet concerned, and
(b) that nutritional information is to be determined in
kilojoules and in accordance with the method referred to in
clause 16S (2) and (3).
16U Locations for display of nutritional information
(1) For the purposes of sections 106N and 106O of the Act, the
locations where nutritional information referred to in
clauses 16S (1) (a) and 16T (a) must be displayed in relation to a
standard food item are:
(a) on each menu on which the name or price of the standard
food item is displayed and on each price tag or label or
identifying tag or label for the item, and
(b) if there are drive-through facilities, on the drive-through
menu board that displays the name or price of the standard
food item or on a separate adjacent board visible at or
before the point of ordering, and
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Food Amendment Bill 2010
Schedule 2 Amendment of Food Regulation 2010
(c) adjacent to or in close proximity to the name or price of the
standard food item so as to be clearly associated with the
item.
(2) The locations where nutritional information referred to in
subclause (1) is displayed in relation to a standard food item are
to be consistent with the locations where such nutritional
information is displayed for all of the other standard food items
that are displayed with that standard food item.
(3) For the purposes of section 106N of the Act, the locations where
the statement referred to in clause 16S (1) (b) must be displayed
are:
(a) in one location on each menu on which the name or price
of one or more standard food items is displayed and
adjacent to or in close proximity to the standard food item
or items so as to be clearly associated with the item or
items, and
(b) if there are drive-through facilities, in one location on the
drive-through menu board adjacent to or in close proximity
to the standard food item or items so as to be clearly
associated with the item or items, and
(c) in each area or display cabinet, or on each stand, where
standard food items with price tags or labels or identifying
tags or labels are displayed and adjacent to or in close
proximity to the item or items so as to be clearly associated
with the item or items and conspicuous to a person looking
at the item or items.
16V Manner of displaying nutritional information
(1) For the purposes of sections 106N and 106O of the Act, the
nutritional information referred to in clauses 16S (1) (a) and
16T (a) must:
(a) be clearly legible, and
(b) display the number of kilojoules in numerals and use the
abbreviation "kJ", and
(c) be in the same font, and at least the same font size, as the
price displayed for the standard food item concerned or, if
no price is displayed, as the name displayed for the item.
(2) For the purposes of section 106N of the Act, the statement
referred to in clause 16S (1) (b) must:
(a) be clearly legible, and
Page 10
Food Amendment Bill 2010
Amendment of Food Regulation 2010 Schedule 2
(b) in a case where only one standard food item is displayed
on a menu, be in the same font, and at least the same font
size, as the name of the item displayed or, if no name is
displayed, as the price displayed for the item, and
(c) in a case where a number of standard food items are listed
or displayed on a menu, be in the same font, and at least the
same font size, as the name of the standard food item with
the largest font size listed or displayed or, if no names are
listed or displayed, as the price of the standard food item
with the largest font size listed or displayed, and
(d) in the case of a standard food item or items displayed with
a price tag or label or identifying tag or label in any area,
display cabinet or stand, be in at least the same font size as
the largest font size on the tags or labels for the standard
food item or items in the area, display cabinet or stand.
16W Exemptions
(1) The following food businesses are exempt from the operation of
section 106N of the Act:
(a) convenience stores,
(b) service stations selling petrol or other fuel for motor
vehicles,
(c) food businesses that primarily provide food catering
services,
(d) food businesses that only sell food that is intended to be
consumed on the premises at which it is sold.
(2) Food sold by retail at a health care facility is exempt from the
operation of section 106N of the Act.
Page 11
Food Amendment Bill 2010
Schedule 2 Amendment of Food Regulation 2010
[2] Schedule 2 Penalty notices
Insert in Columns 1, 2 and 3 of Part 1 of Schedule 2 in appropriate order of
section number:
Section 106N (3) $880 $1760
Section 106N (4) $330 $660
Section 106O (2) $330 $660
Page 12
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