Discussion Paper - Review of the National Trade Measurement Regulations 2009
Discussion Paper
A review of the National Trade Measurement Regulations 2009, Part 4: Packaging
October 2015
Contents
Introduction
Have your say
Background
Purpose
History
Related International Standards
Related Australian Standards and Regulations
Current enforcement
Discussion of regulations
Overview
Division 4.1 (Regulation 4.1)
Division 4.2 (Regulations 4.3-4.6)
Division 4.3 (Regulations 4.7-4.8)
Division 4.4, Subdivision 1 (Regulations 4.9-4.16)
Regulation 4.10 General position of measurement marking
Industry Concerns with Regulation 4.10
Consumer group concerns with Regulation 4.10
Regulation 4.11 Set-out and form of measurement marking
Regulation 4.12 Size etc. of characters in measurement marking
Regulation 4.13 & Schedule 5 Expression of measurement marking
Division 4.4, Subdivision 2 (Regulations 4.17-4.22)
Division 4.4, Subdivision 3 (Regulations 4.23-4.25)
Division 4.4, Subdivision 4 (Regulation 4.26)
Division 4.5 (Regulation 4.27-4.29A)
Division 4.6 (Regulations 4.31-4.32)
Division 4.7 (Regulations 4.34 - 4.44)
Division 4.8 (Regulation 4.46)
Appendix 1- List of considerations to prompt feedback
Introduction
The National Trade Measurement Regulations 2009 underpins the trust between strangers when entering into financial transactions, ensuring they have trust and confidence that they are receiving what they paid for. This trust and confidence is essential for a well-functioning economy, however, it is important to ensure that these regulations are optimal. This review examines Part 4 of the National Trade Measurement Regulations 2009, which predominately provides rules related to measurement marking on packaging (i.e. the“330ml” marking on a can of soft drink).
The Australian Government is focused on improving productivity and encouraging innovation in the Australian economy. The Government has undertaken a deregulation agenda focused on eliminating inefficient and unnecessary regulations on businesses, individuals and the community. As part of this agenda the Government has committed to reducing the regulatory burden by $1 billion annually.[1] The labelling requirements laid out in Part 4 of theNational Trade Measurement Regulations 2009were identified by the Department of Industry and Science as an area of regulation which could be reformed to remove unnecessary burdens on businesses and consumers.
In undertaking this review the Australian Government is keen to understand the impacts that regulatory changes may have on consumers, businesses and trade. The aim of this review is to examine the impact that changes to regulations regarding measurement markings on products would have on Australian consumers, businesses and trade should the regulations be amended to allow greater flexibility of where measurement markings are placed. The review will:
- maintain confidence in Australia’s regulatory system for measurement markings;
- assess the regulations for their appropriateness for the Australian market;
- attempt to align Australia’s regulatory regime with national and international standards;
- try to reduce the costs of business compliance;
- reflect the efforts of Australian Government officials to tasks which maintain confidence in Australia’s measurement system; and
- base decisions on the best available data and considerations of how changes will impact all sections of the community.
Have your say
The Government is seeking responses to the issues raised in this paper. The questions and considerations outlined within this paper are designed to prompt responses, however respondents do not need to answer all of them.
It is strongly recommended that readers refer to the regulations when considering the issues raised in this discussion paper, as many of the references relate to specific regulations and their impacts.
All details can be found on the ComLaw website:
Material that is not covered by the questions, but that is within the scope of the review, can be included in submissions. To help in the process of the review any calculations of costs or benefits of changes to the regulations would be useful in supporting a case for change.
All submissions received will be considered by the Government in the process of finalising the proposal. We encourage those who have a view on the issues outlined in the discussion paper to make a written submission by 18 December 2015.
Submissions can be made on the website: If you have difficulties or questions, please email .
Submissions received may be made public on the consultation website unless otherwise specified. Submissions should indicate whether any part of the content should not be disclosed to the public.
Background
Purpose
Part 4 defines how the measurements related to packaging are controlled. It describes how the name, address and measurement mark should be displayed. It states what expressions are prohibited on the package relating to measurements, and details whether the product matches the weight marking.
This document has been compiled by reviewing previous information provided to the department relating to these regulations and consulting industry and consumer associations. As a result of this preliminary process, there are three questions that form the basis of the review of Part 4.
- Can the regulations be simplified?
- Could the exemptions be increased or decreased?
- Should a principles based approach be adopted for the regulations overseeing the measurement mark?
The regulations relating to the measurement mark offer the greatest opportunity for reform, from the perspective of all three questions.
The questions above reflect possible options for reform, from a relatively minor change to the regulations with question 1, to a targeted reduction of the scope of the regulations with question 2, and finally to adopting a more flexible approach with question 3.
Additional questions are provided later in the paper, specific to sections of the regulations. It is with these details that the above questions can be considered further.
History
The Commonwealth has power under the Constitution Section 51 (xv) to create legislation regarding ‘weights and measures’. The National Measurement Act 1960is the central legislation with regards to weights and measures.
In the early 1990s, the states and territories developed uniform trade measurement legislation (UTML). Despite each state and territory enacting legislation based on the UTML, subsequent changes to the UTML were introduced at different times leading to inconsistent regulation across the states and territories.[2]
On 13 April 2007, the Council of Australian Governments (COAG) decided to implement a national trade measurement system. On 8 December 2008, Royal Assent was given to the National Measurement Amendment Bill 2008, which amended the National Measurement Act 1960 to create the legislative framework for a national system of trade measurement. The new legislation contains many provisions that substantially correspond to the UTML.[3]
Related International Standards
Australia uses the recommendations of the International Organization of Legal Metrology (OIML) to guide the formation of our measurement regulations. OIML’s aim is to harmonise regulations and metrological controls applied by its 60 full member states and 68 corresponding members.[4] OIML recommendation R79: Labelling requirements for pre-packaged products is the most relevant recommendation for this review.[5] Australian regulations are not an exact replication of OIML’s recommendation with the recommendations adapted to meet the needs of Australian businesses and consumers. This adaptability of OIML’s recommendation has led to different member countries enacting and enforcing the OIML recommendations to different degrees.
Codex Alimentarius is another relevant international standard that relates to Australia’s trade measurement regulations. Codex Alimentarius is an international body for food standards which was established by the World Health Organization and the Food and Agriculture Organization of the United Nations.[6] The CODEX STAN 1-1985: General Standard for the Labelling of Pre-packed Foods relates to this review however the standards only cover food labelling and do not extend to other product types.[7]
Further, Australia also has obligations to ensure labelling is not an unnecessary obstacle to trade under the General Agreement on Tariffs and Trade and Technical Barriers to Trade Agreement administered by the World Trade Organisation.[8][9]
Related Australian Standards and Regulations
Australian Consumer Law in the Competition and Consumer Act 2010also provides protection for consumers with regards to measurement labelling. Section 18 of the Australian Consumer Law states ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.[10] Placing the incorrect weight measurement on a package would be considered misleading or deceptive and would be in contravention of the act. This law covers both business to consumer transactions and businesses to business transactions.[11]
The Australian New Zealand Food Standards Codeincludes sections on the labelling of food products. The code’s labelling requirements predominately deal with issues only relevant to food products such as listing of ingredients, nutritional information and allergen warnings.[12] There is some overlap with the National Trade Measurement Regulations 2009with regards to address labelling which is discussed further in Division 4.3.[13]
Current enforcement
The consequence of a breach under the legislation can range from issuing notices of non-compliance through to infringement notices, fines, court-enforced undertakings and criminal prosecution. The range of enforcement actions are in place to prevent, stop or minimise contraventions of national measurement laws and deter future contraventions. The enforcement options are commensurate with both the level of consequence and the level of likelihood of non-compliance. When both levels are low to medium, a warning letter may be issued in the first instance. Failure to comply with this written warning will in most cases lead to the issuing of an infringement notice. The infringement notice penalty is currently 5 penalty points ($900) for each provision of the legislation that has been contravened.[14]
The National Measurement Institute (NMI) tests products to ensure they comply with theNational Trade Measurement Regulations 2009. In 2013-14 trade measurement inspectors examined almost 35,000 lines of packaging following compliance checks relating to product shortfall. A compliance examination of product packaging is undertaken following other regulation breaches to ensure products display the correct measurement marking and correct packer identification.[15] The majority (86 per cent) of pre-packed articles examined were labelled in accordance with the legislation.[16] Figure 1 shows the percentage of correct and incorrect package labelling under different product categories; the lowest categories of compliance were seafood (28 per cent incorrect) and beverages (28 per cent incorrect).[17]
Figure 1: Percentage of Correct/Incorrect Labelling of Pre-packed Articles 2013-14.[18]
In 2013-14 the NMI issued 138 infringement notices with $150,400 in fines imposed. Of these infringement notices, 1 per cent related to the labelling of pre-packed articles.[19]
Discussion of regulations
Overview
Part 4 of the National Trade Measurement Regulations 2009is split into 8 divisions with 40 regulations. Division 4.1 defines terms used in this part and Division 4.2 makes provisions with regards to the operation of Part 4, in particular exemptions to requirements of Part 4. Divisions 4.3 and 4.4 are the two core requirements with respect to packaging labels in the regulations; address and measurement marking respectively. Division 4.5 states prohibited expressions and Division 4.6 deals with allowable deficiencies for mushrooms and soap. Division 4.7 contains the provisions that require the product weight to match the weight marking. Division 4.8 has provisions for miscellaneous matters. Several Divisions are divided into Sub-Divisions, as noted below.
The discussion below provides a summary of the regulations and the issues arising from them. If you wish to view the full regulations, they are available at
Division 4.1 (Regulation 4.1)
The first division of the National Trade Measurement Regulations 2009, Part 4 outlines the definitions for terms used in Part 4. These definitions clarify the application of the terms used in the following divisions.
Key definitions for this review are:
Measurement marking ‘means the marking of measurement required by these Regulations to be made on a pre-packed product’.
Principal display panel ‘in relation to a package, means the part of the package that is most likely to be displayed under normal and customary conditions of display’. This typically is understood to mean the front of the product.
Considerations:
1)Are the terms in Regulation 4.1 properly defined?
2)Should any of the definitions be omitted?
3)Should any definitions be added?
Division 4.2 (Regulations 4.3-4.6)
Division 4.2 makes a provision with respect to the operations of Part 4; in particular packages that are exempt from the legislation.
Regulation 4.3 states the requirements of Part 4 must be applied to both inner and outer packaging of a product. This was included to ensure ‘the information contained in a marking will be available to consumers, when, for whatever reason, an inner package becomes separated from its outer package.’[20] The exemptions to this regulation are stated in Regulation 4.25(2); which are for any inner package ordinary sold in an outer package and for when the outer package is only for transportation.
Regulation 4.4(1) states the exemptions to the legislation are outlined in Schedule 4 of the National Trade Measurement Regulations 2009.
Subregulation 4.4(3) outlines that if an exempt package has an address or measurement mark the package must comply with the regulations when placing the information on the package. An industry group has raised concern over this clause.[21] They give the example of a cosmetic pack which may include a 12mL nail polish bottle which is exempt as its content is less than 15mL (under Schedule 5(5)(3)). If the company does decide to disclose the contents of the nail polish they have to comply with the full requirements of Division 4.3 and 4.4 (i.e. the measurement marking would not be allowed to be placed on the back of the bottle, it must be displayed on the front).[22] The regulation was included to ensure that there is uniformity in marking across all the pre-packaged goods and to prohibit display of misleading information to customers.
Further exemptions are made in Section 4.5 for certain paper packages.
Considerations:
4)Should the products that are currently exempt from address and measurement marking be exempt? Are there other products that should be exempt?
5)Should a product that is deemed to be exempt have to comply with the regulations for measurement or address marking if they wish to place the mark on their product?
6)If an exempt product chooses to display the measurement mark, should they:
- be bound by the full requirements of the regulations?
- retain their exemption for all aspects of the measurement marking display, however measurement markings must be factual?
Division 4.3 (Regulations 4.7-4.8)
Division 4.3 outlines the first core requirement of the regulations of marking of name and address on packaging (Regulation 4.7). Regulation 4.8 gives exemptions to packaged seeds and imported pre-packaged products.
The purpose of these name and address requirements is to ensure compliance and take any enforcement action necessary such as the serving of papers for legal enforcement.
An industry group has raised the issue that requirements for address labelling under the National Trade Measurement Regulationsare not consistent with address labelling required under the Australia New Zealand Food Standards Code. Subregulation 4.7(1) of the NMI regulations requires the ‘name and address of the person who packed or on whose behalf it was packed’ and 4.7 (3) requires the address to be ‘a place in Australia where a document may be served personally on the person’. In contrast, the Australia New Zealand Food Standards1.2.2.3 (1) requires the address be in Australia or New Zealand and be the supplier of the food.[23]
Considerations:
7)Should packaged seeds and imported pre-packaged products be exempt? Should other products be exempt?
8)Should address requirements be consistent or harmonised with the requirements of the Australia New Zealand Food Standards 1.2.2.3 (1)?
- Should packages that comply with Australia New Zealand Food Standards be exempt or deemed to comply with the NMI regulations?
- Are there significant legal differences between a place in Australia where a document may be served personally on a person, and a location that is liable for food packaging?
Division 4.4, Subdivision 1 (Regulations 4.9-4.16)
Subdivision 1 of Division 4.4 outlines the second core requirement of the regulation that a pre-packaged product must be marked with a statement of measurement (Regulation 4.9). Subregulation 4.9(2) sets the requirement for the measurement marking. The statement must be clear, conspicuous and readily seen.
Regulation 4.10 General position of measurement marking
Regulation 4.10 states that a measurement marking on a package must be made on the principal display panel. As per the definition set out in division 4.1 (discussed previously) this typically means the measurement marking must be on the front of the package. If a package is cylindrical, spheroidal, conical or of oval cross section, the measurement marking must be positioned so that no part of the marking is further than one-sixth of the circumference of the package from the line that vertically bisects the part of the package on which the marking is to be made. Exemptions are made for the packaging of automotive parts and certain bottle or casks of wine.
Industry Concerns with Regulation 4.10
This requirement has been flagged by industry groups as creating an unnecessary burden as imported products often need to be relabelled to meet Australian requirements.[24][25][26] They state this is particularly an issue given the relative small size of the Australian manufacturing industry. The European Union is one such region from where imported products allegedly need to be relabelled. Despite being a member of OIML, the European Union does not require front of pack labelling.[27]
The European Union’s packaging regulationsare not as prescriptive as Australia’s. European legislation states that all pre-package markings should be ‘indelible, easily legible and visible on the pre-package in normal conditions of presentation’.[28] As part of consultations into the metrological requirements for pre-packaged products in 2005, the European Union found business associations were unanimous in rejecting changing their legislation regarding size and placement of the measurement marking.[29] The business associations also cited the losses on existing labels and the cost of restyling the labels. Furthermore, they also stated the primary label could become too full and confusing.[30] The European Union decided these considerations outweigh the fact that the legislation would conflict with OIML and would cause trade barriers for businesses when exporting their products.