A food product that is legally sold in Europe, the United Kingdom, the United States or another overseas market is not automatically ready for sale in Australia.
Australia has its own rules covering food standards, ingredients, biosecurity, labelling, imported food inspection and product claims. Those rules need to be considered for each individual product you intend to sell here.
As an overseas business preparing to launch in Australia you have probably already spent considerable time and money on manufacturing, packaging, freight, distribution and marketing. Distributors are expecting stock. Customers are waiting. Launch dates have been agreed.
Finding out at that stage that the product, its label or its supporting documents do not meet Australian requirements creates an expensive and avoidable problem.
The best time to deal with Australian regulatory requirements is before the goods leave the country of export.
What Australian requirements apply to imported food?
There is no single approval process for importing food into Australia.
The Australia New Zealand Food Standards Code sets requirements for food sold in Australia, including ingredients, additives, composition, food safety, allergens, contaminants and labelling.
Imported food is also subject to Australia’s biosecurity requirements. The Department of Agriculture, Fisheries and Forestry uses its Biosecurity Import Conditions system, known as BICON, to set out the import conditions applying to particular goods.
Depending on the product, those requirements include documentation, treatment, permits, testing and inspection.
Country-of-origin labelling requirements also need to be considered.
The real work is identifying which requirements apply to each product you intend to import and working through them together.
Products that look similar on a supermarket shelf do not always receive the same regulatory treatment.
Tea is a good example. The requirements differ depending on whether the product is black tea, herbal tea, fruit tea or another formulation. An ingredient that appears insignificant from a marketing perspective might change the regulatory position.
For that reason, the review needs to start with each actual product rather than a broad description such as “tea”, “snack”, “supplement” or “beverage”.
My product is compliant overseas. Is that enough for Australia?
Not necessarily.
Overseas compliance is useful background information, but Australian requirements still need to be addressed.
Your review must take into account each actual product being imported, including its:
- ingredients and additives;
- formulation and composition;
- processing methods;
- packaging;
- labelling;
- intended use; and
- the claims made about it.
You must take extra care where a product contains unusual ingredients, botanical substances, vitamins or minerals, or where its composition differs from similar products already sold in Australia.
Health-related claims also need close attention.
A health or therapeutic claim does not automatically turn a food into a therapeutic good. The regulatory position depends on the product, its ingredients, the way it is presented and the claims being made.
Foods and therapeutic goods are regulated under different regimes, so you must establish the correct classification before the product is marketed in Australia.
A product that is lawful overseas still needs to be assessed in the form in which you propose to sell it here — with its Australian formulation, label and claims.
Wondering whether your product might be a therapeutic good and what registration process would apply? See our video on What products need TGA approval? and our article on the TGA approval process for foreign manufacturers.
What should I check before importing food into Australia?
Before committing stock to an Australian shipment, you should understand the regulatory position for each product you intend to import.
A pre-import review usually covers:
- The product itself. Its ingredients, additives, formulation, processing methods and intended use.
- Australian food standards. The provisions of the Food Standards Code that apply to the product.
- Biosecurity and import conditions. The relevant BICON requirements, including documentation, treatment, permit, inspection and testing requirements.
- The proposed Australian label, including mandatory information, allergen declarations and country-of-origin labelling.
- Marketing and claims. Claims appearing on packaging, websites, promotional material, social media and advertising, including whether those claims affect the regulatory treatment of the product.
- Supporting documentation. Product specifications, ingredient information, certificates, testing records and other documents needed to support the import.
Those headings provide a useful starting point. They are not a substitute for reviewing each actual product.
The important part is working out how the Australian requirements apply to your formulation, your label, your claims and your proposed import arrangements, and identifying anything that needs to change before the goods are shipped.
Why should this be done before shipment?
Before shipment, there is usually more room to fix a problem.
Labels can be revised. Additional documents can be obtained. Permit requirements can be addressed. Questions about ingredients, formulation or claims can be resolved before stock is committed to the Australian market.
Once the goods are in transit or held at the border, the commercial position is very different.
Freight has been paid. Customers are waiting. Storage costs start to accumulate. Perishable stock has a limited life. Launch dates come under pressure.
The business also has fewer practical options.
For that reason, reviewing the Australian requirements before shipment is as much a commercial risk-management exercise as a regulatory one.
What happens when imported food arrives in Australia?
Imported food is subject to Australia’s Imported Food Inspection Scheme.
The scheme uses a risk-based approach. High risk foods are inspected more frequently, while others are inspected under surveillance arrangements.
Where food is referred for inspection, a Food Control Certificate identifies the goods that need to remain on hold and any inspection or testing requirements that apply.
Food that is on hold must not be distributed until it has been released.
For a business with customers waiting for delivery, or with stock that has a limited shelf life, delays at this point have an immediate commercial impact.
What happens if my food fails inspection?
The next step depends on the reason for the failure.
The problem could involve labelling, ingredients, contamination, composition, documentation or another regulatory requirement.
The first task is to identify exactly what has failed and what the regulator requires.
Some problems are resolved through further documentation, testing, relabelling, treatment or another corrective step.
Others are not.
Where imported goods do not meet Australian import requirements and the problem cannot be rectified, the goods face re-export or destruction at the importer’s expense.
By then, the stock has already been manufactured and shipped and the business is dealing with the problem under time pressure.
Discovering the issue before shipment puts the business in a far better position.
Before you ship
Before sending a food product to Australia, you should be confident that the product has been assessed against the Australian requirements that apply to it.
That assessment needs to cover more than whether the goods will get through the border. It also needs to address whether the product is lawful to sell in Australia in the form in which you intend to sell it.
For businesses importing several products or formulations, each product needs its own review. An answer for one product should not be assumed to apply to another.
If something needs to change, it is far easier to deal with it before the stock has been shipped.
How Argyll Law helps overseas food businesses
Argyll Law assists international businesses entering and operating in Australia with regulatory and market-entry issues.
For food businesses, we review the product and the proposed Australian arrangements, identify the requirements that apply and advise on any issues that should be addressed before shipment.
We also assist where a shipment has already encountered a regulatory problem in Australia.
Our role is to give you a clear view of the Australian position so that you know what needs to be dealt with before you commit stock, freight and launch plans to the Australian market.
If you are planning to introduce a food product into Australia, dealing with regulatory questions before the goods are shipped is usually the cheaper and easier course.
We’re genuinely pleased if you’ve found this resource useful. However, reading it does not create a solicitor–client relationship between you and Argyll Law.
If you would like tailored legal advice about a particular food product or an Australian shipment, or you’d like to explore whether working together would be a good fit, we’d welcome a conversation.
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