On 3 December 2018 the Federal Court ruled that encapsulation in Australia of imported fish oil (from Chile) and Vitamin D (from China) did not qualify for the ‘Made in Australia’ logo.
The ACCC welcomed the Federal Court ruling that Nature’s Care Fish Oil 1000 + Vitamin D3 soft gel capsule (branded as Healthy care) will not be allowed to be labelled ‘Made in Australia’ under the Australian Consumer Law’s (ACL) Country of Origin labeling provisions. The ACCC said it provided evidence to support its view, consistent with its published guidance, that encapsulation and the addition of a vitamin should not be considered a ‘substantial transformation’ of imported ingredients.
Complementary Medicines Australia (CMA) CEO Carl Gibson said the government needed to act immediately to protect the billion export market which was now under threat. The ‘Made in Australia’ logo is a key marketing element for many territories, particularly China, with some estimates that complementary medicines have an export value of $5 billion per year. “We are one of the few manufacturing sectors in the country actually growing – and yet Australia is about to shoot itself in the foot and give away our competitive export advantage,” he said, saying the case outcome underlined “how Australian companies are being negatively impacted by the new ACCC guidelines”.
My own view is that CMA are essentially saying they will lose money if they stop misleading consumers about their labeling and obey Australian Consumer Law. Which would also happen if they stopped misleading consumers about the claims made for their products and obeyed the Therapeutic Goods Advertising Code!
On 5 December 2018 the Minister for Industry, Science and Technology, Karen Andrews, announced the Complementary Medicine Taskforce to review the impact of recent consumer law changes on the complementary healthcare sector. “The Morrison Government is committed to helping local industry tap into our export markets, and ensuring our business community has opportunities to sell more products overseas,” Minister Andrews said.
The Taskforce will consider and assess reported impacts on the Sector of the changes to the substantial transformation test under the ACL. Both industry and consumer interests will be considered in this process. The Department of Industry will provide the Chair and Secretariat for the Taskforce. The Terms of Reference are available. The Taskforce will provide advice to Government by the end of February 2019.
For more information, contact Graeme Wolff, Manager, Trade Facilitation Section, Strategic Policy Division, Department of Industry, Innovation and Science,
Phone: +61 2 6213 7357 Email: email@example.com
- Justice Perram’s Judgment on substantial transformation of complementary medicines
- The Complementary Medicine Taskforce: A Homeopathic Consultation?
- ‘Burp-back’ highlighted in fish oil case
17/02/2019: I was asked to present a consumer perspective (on behalf of Choice) and other perspectives (PHAA, HAIAP & FSM) to the Taskforce in Canberra on 31 January 2019. My presentation is now available. Then they wanted a written submission!
The Consumers Health Forum also presented to the Taskforce and made a written submission. We both said that research showed that consumers wanted to know the origin of ingredients in products they were considering purchasing.
05/04/2019: Media Release by Minister for Industry, Science and Technology Karen Andrews: Backing the complementary healthcare industry. The Coalition Government has supported the complementary medicines industry and agreed to water down the ACCC’s “Made in Australia” criteria for country of origin labeling.
The same day I submitted a FOI application (62651) to obtain a copy of the Task Force report. I was interested in whether the expressed consumer views had been accurately conveyed to the government.
24/07/2019: After requests for an extension of time by FOI officers, and a payment of $335.79, the report requested finally arrived with the sections of interest redacted under subsection 47C(1) of the FOI Act. Kate Stewart, A/g General Counsel, Legal, Audit and Assurance Branch said
“While I consider that disclosure of these documents would inform scrutiny of the Government’s activities and provide some benefit to the public through informing debate, I do not consider that these factors outweigh the factors against disclosure of such deliberative material in the circumstances. I therefore find that certain content on the relevant pages as indicated in the Schedule are exempt from disclosure under subsection 47C(1) of the FOI Act”.
26/07/2019: I requested an internal review of this decision to redact the options provided by the Task Force on the grounds that it was in the public interest to see if the views of consumers sought by the Taskforce had been accurately conveyed to government in the options presented.
I accepted that it was the government’s prerogative to make a policy decision based on the options provided. The government did this on 5 April 2019 in a Media Release by Minister for Industry, Science and Technology Karen Andrews which stated that, to support of the complementary medicines industry, the Coalition Government had agreed to allow complementary medicines manufactured in Australia, in production facilities regulated by the Therapeutic Goods Administration, to use the Australian Made logo regardless of where the ingredients were sourced.
This was clearly not the position put by consumer organisations, nor was it in accord with research on consumer views commissioned by the Task Force and presented in their report. Consumers agreed that products that are ‘Made in Australia’, even with imported ingredients, should be able to use the AMAG logo, however it must be accompanied by the origin of ingredients and proportion as depicted below.
[From: Country of Origin Labelling Complementary Healthcare Taskforce Report; DIIS – Released under the FOI Act]
This highlighted the need to see if consumers views sought by the Taskforce had been accurately conveyed to government in the options presented.
22/08/2019: The internal review confirmed the initial decision; the redacted material continues to be exempt under section 47C of the FOI Act, on the grounds that the material is deliberative in nature and giving access would, on balance, be contrary to the public interest.
The internal reviewer argued that, “taskforce members remain actively involved in ongoing communications and deliberations to progress policy options for reform stemming from the Taskforce’s report. As such, I am of the view that the material continues to be deliberative”.
This is not in accord with information I have obtained from an industry colleague. In an update send to industry stakeholders but not consumer organisations the DIIS reaffirmed the Government’s 5 April 2019 commitment. The “update” noted that to meet this policy commitment, the department is progressing changes to the Australian Consumer Law (ACL), related regulations are being drafted and a Consultation Regulation Impact Statement (RIS) is being prepared.
In short, the policy decision has been made, the law is being changed and I can see no reason to redact the options provided by the Task Force. This information would clearly be useful to consumer organisations wishing to comment on the soon to be released consultation RIS. I am also disappointed that DIIS officers have failed to keep consumer organisations informed about the progression of this matter.
4/09/2019: I believe the DIIS decision makers are wrong in their interpretation of the law and in their assessment of the public interest. I have requested a review of their decisons by the Australian Information Commissioner. I also suggest that DIIS officers should read a recently published Op-ed by Sven Bluemmel, Victorian Information Commissioner, “Access to information builds trust in government”.
3/10/2019: Department of Industry, Innovation and Science. Eligibility for Country of Origin claims in the Complementary Medicines Sector – Regulatory Impact Staement Consultation
4/11/2019: MR19/00603 “The Information Commissioner has decided to commence review of the Department’s decision of 19 August 2019. At this stage, your matter is awaiting allocation to a review officer. Due to the number of IC review applications on hand, this may take up to 6 to 12 months. Once allocated, the review officer will review any documentation or submissions provided by the Department in support of its decision of 19 August 2019. The review officer will then contact you to advise you of their view on the next appropriate steps in the matter.”by