Food Standards (Application A1256 – Colour of pregnancy warning labels for corrugated cardboard packaging) Variation

The instrument’s central concept is an optional alternative design and production pathway for the pregnancy warning mark where the outer packaging is corrugated cardboard with a kraft, recycled or white outside liner and the mark is printed using a post‑print (flexographic) process. The new section is expressly limited in scope: it applies only to pregnancy warning marks required by subsection 2.7.1,10(1) and only where the specific packaging and printing conditions in 2.7.1,13(2)-(3) are met (2.7.1,13(1)(a)-(c), (2)).

Key technical requirements are prescribed as mandatory elements. These include minimum dimensions for the pictogram and type (2.7.1,13(3)-(5)), a specification that the mark’s background must be the same colour as the outside liner (2.7.1,13(6)), and colour rules that require the pictogram elements, signal words, statement, and border to be black (2.7.1,13(7)-(12)). Typography is also regulated: signal words must be bold, sans‑serif, in capitals and in English; the statement must be in a sans‑serif typeface, in sentence case and in English (2.7.1,13(10)-(11)). The instrument mandates a clear space of at least 3 mm around the mark, forbids modification to the mark, and requires that the pictogram’s strikethrough be displayed with clear space either side so both it and the silhouette are legible (2.7.1,13(9), (13), (14)).

The instrument introduces a narrow definition of “post‑print (flexographic) printing process”: the pregnancy warning mark must be printed directly onto the outside liner of corrugated cardboard using flexible raised image printing plates (2.7.1,13(15)). The instrument also explicitly removes the application of certain broader Code requirements to pregnancy warning marks that fall within the new section (Schedule items [1]-[3]: 1.1.1,9 and parts of 2.7.1,12).

Finally, the variation contains procedural and temporal controls. It commences on gazettal (clause 3) and establishes a transition period ending 1 February 2024 during which products can be sold if they comply either with the pre‑amendment Code or with the amended Code (clause 4(3)). Post‑transition sales are limited to products complying with the amended Code or to products packaged and labelled before 2 February 2024 that bear the pre‑amendment label (clause 4(4)).

The instrument targets a bounded group of actors within the alcoholic beverages supply chain. It applies to prescribed alcoholic beverages required to display a pregnancy warning mark under subsection 2.7.1,10(1) of the Code and to which the new subsection 2.7.1,13(2) applies (2.7.1,13(1)(a)-(b)). Concretely, that means the following must all be true for the optional pathway to apply: the beverage is a prescribed alcoholic beverage required to carry the pregnancy warning; its packaging includes more than one individual unit; and its outer package is corrugated cardboard with an outside liner composed of kraft, recycled or white paper (2.7.1,13(2)(a)-(b)).

Who pays: businesses that design, print, pack and label those outer packages will bear the compliance costs of meeting the technical specifications if they opt to use this optional pathway. Those costs are concrete in the instrument: meeting minimum diameters and type sizes (2.7.1,13(3)-(5)), ensuring black colouration for pictogram elements and text (2.7.1,13(7)-(12)), ensuring required clear space and border (2.7.1,13(12)-(13)), and establishing a post‑print flexographic production process (2.7.1,13(15)). Where production currently uses a different printing process (for example a pre‑print or pressure‑sensitive label), the instrument requires a change in printing method for this optional pathway to apply.

Who decides: packaging and brand owners will decide whether to use the newly permitted corrugated‑cardboard, post‑print flexographic option or to continue with alternative labelling methods governed by the general Code. That choice will be constrained by whether their outer package meets the multi‑unit and outside liner material requirements in 2.7.1,13(2) and whether their printing process is the post‑print flexographic method defined in 2.7.1,13(15). Where a packer or manufacturer elects the optional pathway and meets the conditions, the specific technical rules in 2.7.1,13 will govern design and production.

The transition provisions affect distributors and retailers as well. During the transition period (from commencement to 1 February 2024), products complying either with the pre‑amendment Code or with the amended Code may be sold (clause 4(3)), which allows circulation of mixed labelling while the supply chain adapts. After the transition period, non‑complying packaging can only be sold if it was packaged and labelled before 2 February 2024 and bears the pre‑amendment label (clause 4(4)(b)(i)-(ii)); that creates a time‑limited stock‑rotation exception for products already packaged and labelled.

Duties are technical and prescriptive. Where a prescribed alcoholic beverage is subject to subsection 2.7.1,13, the pregnancy warning mark as printed on corrugated cardboard outer packaging must meet the functional, dimensional and appearance requirements set out in that section. The duties include: the pictogram must be at least 14 mm in diameter (2.7.1,13(3)); signal words must be at least 4.4 mm in type size and meet typographic and language requirements (bold, sans‑serif, capitals, English) (2.7.1,13(4), (10)); the statement must be at least 3.4 mm in type size, in a sans‑serif typeface, in sentence case and in English (2.7.1,13(5), (11)). Colour duties require the pictogram circle, strikethrough and silhouette to be black and the border, signal words and statement also to be black (2.7.1,13(7)-(12)). The mark’s background must match the outside liner colour (2.7.1,13(6)), and a clear space of at least 3 mm must surround the outside of the border (2.7.1,13(13)). The mark must be displayed as a whole and without modification (2.7.1,13(14)). The strikethrough must have clear space on either side so that both the strikethrough and silhouette remain clearly legible (2.7.1,13(9)).

Rights within the instrument are limited to an optional pathway. If an outer package and production method meet the conditions in 2.7.1,13(1)-(2), there is a right to apply the particular design and printing specifications set out in 2.7.1,13 instead of applying the general requirements that otherwise govern pregnancy warning marks. The instrument explicitly exempts those pregnancy warning marks from the application of certain other Code requirements (Schedule items [1] and [3]: 1.1.1,9 and 2.7.1,12(10); and Schedule item [2] which amends the operation of 2.7.1,12(1) by adding “Subject to subsection (10), a …”).

Transition‑related rights are also created. During the transition period, affected products may be sold if they comply with either the pre‑amendment Code or the amended Code (clause 4(3)). After the transition period, products packaged and labelled before 2 February 2024 and bearing the pre‑amendment labelling can still be sold (clause 4(4)(b)), granting a time‑limited right to sell existing stock that was packaged prior to the cutoff.

The instrument does not itself create new enforcement powers or penalties within its text. It was made under section 92 of the FSANZ Act 1991, as indicated at the front of the instrument, but no bespoke enforcement or penalty provisions are set out in the variation (see top matter; clause 4 contains transitional and savings provisions).

The variation text does not specify penalties, criminal sanctions or an enforcement regime within the instrument itself. The instrument is a variation to the Australia New Zealand Food Standards Code (clause 2) and was made under section 92 of the Food Standards Australia New Zealand Act 1991 (notice heading). The variation sets technical obligations for the appearance and production of pregnancy warning marks in specified circumstances (Schedule: 2.7.1,13), but it contains no express provision imposing fines, infringement notices or enforcement mechanisms within the text of the variation.

Because the instrument does not include express penalty clauses, the legal effect is that compliance obligations are created as part of the Food Standards Code, which is the statutory instrument of food law. Any enforcement, compliance monitoring and sanctioning will therefore proceed under the enforcement arrangements and powers established by the applicable Commonwealth, State and Territory laws and under the broader framework that gives legal force to the Code. The variation does not purport to displace or alter those external enforcement frameworks within its own text, and it expressly leaves untouched clause 4 of the separate Food Standards (Proposal P1050) Variation (clause 4(5)).

Practically, the absence of penalties or enforcement detail in the variation means that operators should not look to this instrument for enforcement guidance; they should treat the variation as the source of substantive labelling obligations for the specified packaging/printing pathway and consult the relevant enforcing authorities or legislation that gives effect to the Code in their jurisdiction for specifics on inspection, compliance processes, infringement regimes or prosecutorial discretion. The instrument itself provides the substantive labelling rules (2.7.1,13) and the temporal rules for transition (clause 4), but not an internal enforcement schedule or penalty table.

This instrument modifies the Australia New Zealand Food Standards Code by inserting and modifying provisions within Standard 2.7.1. It explicitly interacts with existing provisions of the Code (for example, subsection 2.7.1,10(1) which requires certain pregnancy warning marks, and subsection 2.7.1,13(2) as referenced in the new section) and with other variations to the Code. The instrument states it is varying a Standard in the Code (clause 2) and that Section 1.1.1,9 of Standard 1.1.1 does not apply to the variations made by this instrument (clause 4(1)). Schedule items [1]-[3] alter the application of existing subsection 2.7.1,10(2) and 2.7.1,12(1) by creating carve‑outs for pregnancy warning marks to which the new 2.7.1,13 applies.

The instrument also expressly references another variation: the Food Standards (Proposal P1050 - Pregnancy warning labels on alcoholic beverages) Variation. Clause 4(5) states that this instrument does not limit clause 4 of that separate variation, and clause 4(6)(a)(i)-(ii) defines the “pregnancy warning label amendments” to include both this instrument and the P1050 Variation. This indicates an intention for coordinated operation between the two instruments, and the transition rules refer collectively to both sets of amendments (clause 4(6)(a)). The transition and post‑transition sale rules in clause 4 treat the two instruments together when determining what labelling is acceptable during the transitional period and after (clause 4(3)-(4)).

The instrument also interacts with Standard 1.1.1 by excluding the application of 1.1.1,9 to the variations made by the instrument (clause 4(1)). The precise effect depends on the content of 1.1.1,9 (which is not reproduced in this instrument), but the instrument makes clear that that particular provision is not to be applied to this variation. Similarly, the Schedule amends subsection 2.7.1,12 to create subjectivity and carve‑outs so that the new 2.7.1,13 governs where applicable (Schedule items [2]-[3]).

Beyond the Code itself, the instrument does not identify interactions with other Commonwealth, State, Territory or international laws within its text. It does not, for example, create or alter customs, excise, trade mark or consumer protection rights in its own terms. The instrument’s practical interplay with enforcement and compliance mechanisms will be determined by the broader legal framework that gives statutory effect to the Code and by the enforcement authorities in each jurisdiction, but those enforcement mechanisms are not detailed in the variation itself.

This instrument is titled the Food Standards (Application A1256 - Colour of pregnancy warning labels for corrugated cardboard packaging) Variation (clause 1). It was made by the Board of Food Standards Australia New Zealand, dated 28 April 2023, and is noted as being published in the Commonwealth of Australia Gazette No. FSC 159 on 4 May 2023 (front matter), with clause 3 stating the variation commences on the date of gazettal.

The Schedule effects the substantive amendment to Standard 2.7.1 by: inserting a new subsection 2.7.1,13 (Schedule item [4]) that establishes the optional pregnancy warning mark rules for corrugated cardboard outer packaging; inserting subsection (2A) after 2.7.1,10(2) to state that subsection (2) does not apply to a pregnancy warning mark to which section 2.7.1,13 applies (Schedule item [1]); and amending subsection 2.7.1,12(1) to read “Subject to subsection (10), a …” (Schedule item [2]) and to insert subsection 2.7.1,12(10) to state this section does not apply to a pregnancy warning mark to which section 2.7.1,13 applies (Schedule item [3]).

Clause 4 of the variation establishes transitional arrangements and specifies that Section 1.1.1,9 of Standard 1.1.1 does not apply to the variations (clause 4(1)), sets out the contexts in which a food product that is an alcoholic beverage may be sold during and after the transition period (clause 4(2)-(4)), and defines “pregnancy warning label amendments” and “transition period” for the purpose of the clause (clause 4(6)). Clause 4(5) clarifies that this clause does not limit clause 4 of the Food Standards (Proposal P1050) Variation.

The instrument frames itself as a variation under section 92 of the FSANZ Act 1991. The text does not record prior amendments to this particular section beyond its insertion in the Schedule, nor does it provide a legislative history beyond the date and publication details supplied. The variation is limited to the amendments set out in the Schedule and the transitional provisions in clause 4.

The instrument contains no information about litigation. The text does not cite any cases, judicial determinations, or prior litigation concerning the new provisions or their interpretation. It does not record challenges, appeals or tribunal decisions relating to the making of the variation.

Therefore, based solely on the instrument’s text, there is no litigation history recorded in the document for the Food Standards (Application A1256 - Colour of pregnancy warning labels for corrugated cardboard packaging) Variation. Any proceedings, disputes or judicial consideration that may arise from the operation or enforcement of the amended provisions would lie outside the content of this instrument and are not referenced here.

Practitioners seeking litigation history will need to consult court records, public law databases or enforcement authority records outside of the text of this instrument. The instrument itself provides the substantive changes (Schedule: 2.7.1,13 and related amendments) and transitional rules (clause 4), but does not record legal contests or adjudications.

The text creates a number of narrow, technical failure points that can cause a packaging exercise to fall outside the optional pathway.

• Narrow applicability conditions. The optional rules in 2.7.1,13 apply only where every condition in 2.7.1,13(1)-(2) is satisfied: the mark must be required by subsection 2.7.1,10(1), it must be for a prescribed alcoholic beverage to which subsection (2) applies, the mark must be printed using post‑print (flexographic) printing directly on the outside liner, and the outer package must be corrugated cardboard with an outside liner of kraft, recycled or white paper (2.7.1,13(1)-(2)). If any one of those elements is not satisfied, the optional pathway does not apply.

• Printing method is decisive. The instrument defines the post‑print (flexographic) printing process narrowly (2.7.1,13(15)): it must be printed directly on to the outside liner using flexible raised image printing plates. Packaging that uses a different process (for example a pre‑print method, or printed labels affixed to the surface, or other non‑flexographic techniques) will not meet that definition and so will not benefit from the optional specifications. The instrument makes compliance contingent on that exact production method.

• Material and colour dependence. The background of the pregnancy warning mark must be in the same colour as the outside liner (2.7.1,13(6)). The instrument explicitly notes that kraft, recycled or white paper outside liners are brown, grey or white (note to 2.7.1,13(6)). That ties the permitted background colours to the physical material used by the packer. Where an outside liner is coated, printed or treated such that its visible colour differs from kraft/recycled/white shades, careful verification is needed.

• Mandatory black elements and legibility constraints. The instrument requires all pictogram elements, border and text to be black (2.7.1,13(7)-(12)), and establishes minimum sizes for pictogram diameter and type (2.7.1,13(3)-(5)). Failure to meet these dimension or colour requirements will mean the mark does not comply with 2.7.1,13. Additionally, the strikethrough must have clear space on either side so both it and the silhouette are clearly legible (2.7.1,13(9)) and the mark must be displayed as a whole without modification (2.7.1,13(14)). Small resizing, recolouring, cropping or graphic tweaks may therefore render a mark non‑compliant.

• Interaction with general Code provisions. The Schedule excludes the application of certain general provisions (e.g. 1.1.1,9 and parts of 2.7.1,12) to marks covered by 2.7.1,13 (Schedule items [1]-[3]). This means that, in some circumstances, an apparently minor deviation from the new corrugated/cardboard specifications will not simply be treated as a variant of the same pathway; it will instead revert to the general rules and obligations which may have different visual or production requirements.

• Transition timing confusion. The instrument sets a transition period ending 1 February 2024 and allows products to be sold after that date only if they comply with the amended Code or were packaged and labelled before 2 February 2024 and bear the pre‑amendment label (clause 4(3)-(4)). Operators must track two dates (the end of the transition period and the cutoff for pre‑packaged goods) and ensure packaging/label production records can demonstrate that a package was produced before 2 February 2024 if relying on the post‑transition sell‑through exception.

• No enforcement detail in the variation text. The absence of penalty and enforcement clauses in the instrument means operators should be cautious: compliance obligations are embedded into the Code by the variation, but the variation itself does not state how enforcement will be conducted, what defences might be available, or what tolerances inspectors will apply. Operational advice and enforcement expectations must be sought from the relevant enforcing authorities.

To achieve compliance where the optional corrugated‑cardboard pathway is desired, follow these concrete steps grounded in the instrument’s text.

1. Confirm applicability. Verify that the product is a prescribed alcoholic beverage required by subsection 2.7.1,10(1) to display a pregnancy warning mark, and that the outer packaging includes more than one individual unit and is corrugated cardboard with an outside liner made of kraft, recycled or white paper (2.7.1,13(1)(a), (2)(a)-(b)).

2. Confirm printing method. Ensure the pregnancy warning mark will be printed directly on to the outside liner using a post‑print (flexographic) printing process,defined in the instrument as printing using flexible raised image printing plates applied directly to the outside liner (2.7.1,13(15)). If the production method differs, the optional pathway does not apply.

3. Meet pictogram and text dimensions. Set artwork to meet the minimum sizes: pictogram diameter at least 14 mm (2.7.1,13(3)); signal words at least 4.4 mm type size (2.7.1,13(4)); statement at least 3.4 mm type size (2.7.1,13(5)). These are minimums; do not reduce below them.

4. Use specified colours and typography. Ensure circle, strikethrough, silhouette, border, signal words and statement are in the colour black (2.7.1,13(7)-(12)). Signal words must be bold, sans‑serif, in capitals, and in English (2.7.1,13(10)). The statement must be in a sans‑serif typeface, in sentence case, and in English (2.7.1,13(11)).

5. Set background to liner colour. Ensure the background of the pregnancy warning mark is the same colour as the outside liner (2.7.1,13(6)); the instrument’s note identifies expected outside liner colours as brown, grey or white.

6. Preserve clear space and legibility. Provide a clear space around the outside of the border of at least 3 mm (2.7.1,13(13)). The strikethrough must be displayed with clear space on either side so both it and the silhouette remain clearly legible (2.7.1,13(9)).

7. Do not modify the mark. Display the pregnancy warning mark as a whole and without modification; avoid cropping, recolouring, re‑scaling below minimums, or altering the pictogram or text layout (2.7.1,13(14)).

8. Document production dates and processes. Because the instrument’s transitional rules allow post‑transition sale of products packaged and labelled before 2 February 2024 with pre‑amendment labelling (clause 4(4)(b)(i)-(ii)), maintain records showing packaging dates and the printing method used for each production run. These records will be necessary if relying on the sell‑through exception.

9. Observe transition period rules. During the transition period (commencement to 1 February 2024), products may be sold if they comply either with the Code prior to the pregnancy warning amendments or with the amended Code (clause 4(3)). Plan packaging runs and inventory accordingly to avoid having non‑compliant packaging in circulation after the transition unless it meets the pre‑2 February 2024 packaging exception.

10. Liaise with enforcement authorities for operational clarity. The variation does not set out enforcement procedures or penalties. Operators should obtain guidance from the appropriate enforcement agency in their jurisdiction on inspection tolerances, documentation expectations and how compliance with the new section will be assessed in practice.

Following these steps aligns product packaging with the precise, technical obligations the instrument imposes when the optional corrugated‑cardboard pathway is chosen (Schedule: 2.7.1,13) and respects the temporal conditions the instrument sets for sale during and after the transition period (clause 4).