Food Law Update | Australia 29 May 2019 Pregnancy warning labels expected to become mandatory for packaged alcoholic beverages

What you need to know

• A new mandatory labelling standard, requiring packaged alcoholic beverages to be labelled with pregnancy warning and advisory statements, is likely to come into effect around late 2019.
• The mandatory warning label will reflect Australian and New Zealand government advice that pregnant women should not consume any alcohol, and will include a pictogram and warning statement.
• The new standard will apply only to packaged alcoholic beverages (eg not to glasses of wine served in restaurants).
• A transition period of 2 to 3 years is expected, as well as stock-in-trade exemptions to mitigate the cost to industry for compliance.

What you need to do

• If you are an alcoholic beverage manufacturer or packaging producer, start planning for these new mandatory labelling requirements.

Australia's current labelling requirements

Since December 2011, Australia has implemented a voluntary labelling system for pregnancy warnings on packaged alcoholic beverages. The labelling system was introduced to raise awareness of the risks of consuming alcohol while pregnant, such as the risk of fetal alcohol spectrum disorder (FASD). FASD describes a range of physical, cognitive, behavioural and neurodevelopmental disabilities that can result from alcohol exposure during pregnancy.

Despite most of the alcohol industry holding a positive view about the current regime, the Legislative and Government Forum on Food Regulation (which is a council comprised of relevant Australian and New Zealand Ministers) has expressed concerns about the current labelling system, particularly regarding:

• a lack of participation – less than half (48%) of packaged alcoholic beverages in Australia carry a pregnancy warning label;
• inconsistencies between current labels and government advice;
• consumer misunderstanding – particularly as a result of the placement of labels, for example, when located next to messages such as "enjoy in moderation"; and
• the high rates of consumption during pregnancy – Australia has one of the highest rates of alcohol consumption during pregnancy in the world.

By comparison, 28 other countries have mandated pregnancy warning labels, including France, the United States, South Africa, Mexico and Turkey.

Recent developments and upcoming changes

In October 2018, the Food Regulation Standing Committee (FRSC) released a Decision Impact Regulation Statement (DRIS) recommending:

• the application of mandatory labelling for both domestic and imported alcoholic beverages;
• a 2 to 3 year transition period;
• stock-in-trade exemptions, meaning products already packaged and labelled before the end of the transition period are exempt from the mandate;
• the design of a label that includes both a warning message and pictogram;
• text that is readable and the same size as all other information on the product label; and
• the use of short warning messages, such as "warning" or "health warning".

In response to the DRIS, the Legislative and Government Forum on Food Regulation requested Food Standards Australia New Zealand (FSANZ) to develop a mandatory labelling standard for packaged alcoholic beverages.

Proposed timeline for mandatory labelling standard

Following a period of consultation from January to February 2019, FSANZ released an updated timeline for the proposed changes:

The current phase: consumer testing

In the coming months, FSANZ will continue reviewing the considerable amount of evidence that exists on the design of warning labels. FSANZ also plans to design a study that tests consumer understandings of warning statements presented with a pictogram. This study will involve an online survey conducted within both Australia and New Zealand, targeting women of child-bearing age. The call for submissions report, due August 2019, will include all results from the study.

What will the final changes look like?

Parts of the Australia New Zealand Food Standards Code that are likely to change include:

• 1.2.3 – information requirements – warning statements, advisory statements and declarations; and
• 2.7.1 – labelling of alcoholic beverages and food containing alcohol.

The proposed changes would bring packaged alcoholic beverages in line with the mandatory warning label requirements for other products, such as formulated caffeinated beverages, supplementary sports foods and tobacco.

The DRIS has also recommended penalties for non-compliance.

Authors:  Stuart D'Aloisio, Partner; Mel Kitchin, Lawyer; and Tristan Hocking, Graduate.