Image for Cracking the Egg Code

I came across a petition today (Tues) calling on Bryan Green to alter some new food safety rules for egg production that come into effect in November. This one made me think, ‘Hmm, something not quite right here’. This piece is asking some questions that it would be good for Government officials and the petitioners to, perhaps, consider and act upon.

Firstly, why these new rules?

This is answered quickly by the body that brought in the new regulations, Food Safety Australia and New Zealand (FSANZ);

Salmonellosis is the second most commonly reported foodborne illness in Australia. Where the cause of foodborne illness can be identified, eggs are the most commonly identified food vehicle. The main cause of egg-related illness is the consumption of food containing raw or lightly cooked eggs. The current lack of traceability for eggs, once they are removed from their packaging, has compounded difficulties in investigating egg related illness.

The medical cost in Australia for treating salmonella illness is over $44 million per year, so the incentive in both the cost to public health and the discomfort of people by the illness is strong.

FSANZ goes on;

Industry food safety assurance schemes, such as the national egg industry scheme (known as Egg Corp Assured), are voluntary and industry reports that the uptake amongst small producers is low. Currently, there are approximately 30% of egg businesses registered in the program capturing 93% of the national layer flock and 80% of eggs sold. There are currently no national regulatory measures in place to minimise the likelihood of eggs, or egg pulp produced on-farm, being contaminated on-farm or during grading, washing or packaging. Three States, Queensland, Tasmania and New South Wales (as of 18 June 2010), have already introduced their own legislation to control egg safety on-farm. In Queensland, the legislation includes a requirement to identify individual eggs for traceability purposes.

The Code brought out by FSANZ is agreed upon by each Australian but crucially, ‘Enforcement and interpretation of the Code is the responsibility of state and territory departments and food agencies within Australia and New Zealand.

It is here that I think there is an important point. ‘Interpretation of the Code’. It is possible that this is where the egg hits the pan.

In their ‘Egg Stamping Fact Sheet’, the Department of Health and Human Services (DHHS) writes, ‘On 26 November 2013 new laws on the sale and supply of eggs will apply in Tasmania. The new laws require all eggs sold in Tasmania for retail and catering purposes to be individually stamped on the shell by the egg producer with an identification mark or symbol unique to the producer. This requirement is contained in Standard 2.2.2 of the Australia New Zealand Food Standards Code (the Code) which applies in Tasmania.

If we look at Standard 2.2.2 of the Code, it is fairly clear:

3 Traceability
Eggs for retail sale or for catering purposes must be individually marked with the producers’ or processors’ unique identification.

Retail sale is defined in the Code as: ‘retail salemeans sale to the public’.
Going by this one could think that anyone selling an egg is covered by this new law.
However how the Code was gazetted in Australia (as Amendment No. 123), has actually changed the wording:

10 Traceability
(1) An egg producer must not sell eggs unless each individual egg is marked with the producers’ unique identification.

Furthermore the part of the code used by DHHS has cited been repealed;
SCHEDULE– VARIATIONS TO THE AUSTRALIA NEW ZEALAND FOOD STANDARDS CODE’
[4]  Standard 2.2.2 of the Australia New Zealand Food Standards Code is repealed.

It appears that the relevant part of the Code, as adopted as Australian legislation, now only refers to, and thus implies regulation of an ‘egg producer’.

What is an ‘Egg Producer’?
In Australia the Code (as Amendment 123) defines an egg producer as ‘a business, enterprise or activity that involves the production of eggs…

In Tasmania the egg production industry is regulated by the Egg Industry Act 2002. This act defines an egg producer as a ‘person by whom, or on whose behalf, eggs are produced…

However, the Act only applies to, ‘a person who, whether alone or inassociation with others, keeps, or causes or allows to be kept, atotal of more than 20 hens.

In the Explanatory Statement to the Code the FSANZ clearly states: ‘Tasmania also requires egg producers to have a documented program in place that manages egg safety. The Tasmanian legislation limits its application based on the number of birds kept by the business and to eggs from hens (but not other birds such as ducks).

So this is the heart of the matter, how far down does the Code go in deciding who is an ‘egg producer’?

In the Explanatory Statement the FSANZ noted, ‘The egg industry includes many small producers who supply small retailers, farmers markets and sell at the farm gate. The FSANZ consumer study indicated that 11% of consumers sourced eggs from farmers and growers markets and 5% from producers with a small number of hens in their backyard or from their own chickens (5%). Some respondents (22%) obtain their eggs from multiple sources. Advice from industry and the SDC is that some small producers do not implement safety measures and supply cracked or dirty eggs to businesses and consumers but the lack of national traceability obligations makes it difficult to identify offenders.’ (3.5.1.6 Traceability)

The key phrase here is, ‘producers with a small number of hens in their backyard’. It seems in the eyes of the FSANZ a ‘producer’ includes a person with less than 20 hens. So the intent of these new rules does seem to cover people with a backyard henhouse, in that they would be engaging in ‘a business, enterprise or activity’.

QUESTIONS

These are the questions that I think the Government and the Petitioners should focus on:

Is this an overzealous moral panic? The point of this question goes to the extent of these new rules going to include backyard producers. While the Risk Assessment (and the RIS, Proposal Discussion, and Explanatory Statements, etc.) that forms the backbone of the new rules has their leading statements saying that there is ‘a risk’, if you drill down into the document the research quoted in the FSANZ materialsfound 0.0% salmonella present in Australian eggs when national surveys were done, even with cracked eggs. The research further found that most salmonella incidents derived from raw or lightly cooked eggs, indicating contamination after the eggs were opened.

To quote FSANZ; ‘For microbiological hazards, there is limited epidemiological evidence in Australia implicating clean, intact eggs as a source ofegg-associated foodborne illness outbreaks. However, it is important to recognise that outbreak data is not necessarily indicative of the incidence and causes of sporadic egg-associated cases of salmonellosis. Reported outbreaks of egg-associated salmonellosis were generallyattributed to consumption of uncooked foods containing raw egg (e.g.raw egg-based sauces and deserts). A common risk factor identified in outbreaks was the use of eggs with visible surface faecal contamination (dirty eggs). Contributing factors included cross-contamination during food preparation and/or temperature abuse of the food containing raw egg.

Salmonella are bacteria that can infect laying birds and are pathogenic to humans, causing gastroenteritis. The likelihood that clean, intact eggs are contaminated with Salmonella is very low. However, the risk is increased in eggs with visible surface faecal contamination and/or which are cracked. Damage to the shell allows Salmonella to penetrate into the egg contents. Egg pulp that is inadequately heat-treated is also more likely to be contaminated because cracked eggs are usually used in its production.

The important thing to observe here is that ‘dirty’ eggs are only a ‘risk factor’ and do not automatically mean salmonella infection (backyard eggs are often identifiable by feathers, dirt, or straw stuck to the egg shell). Second, cracked eggs are used in product that is not always cooked (e.g. egg-nog, ice cream, or mayonnaise), but the cracked egg itself doesn’tautomatically indicate infection.

The FSANZ Standard goes on to say that; ‘Salmonellosis is the second most commonly reported foodborne illness in Australia. Where the cause of foodborne illness can be identified, eggs are the most commonly identified food vehicle. The main cause of egg-related illness is the consumption of food containing raw or lightly cooked eggs. The current lack of traceability for eggs, once they are removed from their packaging, has compounded difficulties in investigating egg related illness.

So the issue here is traceability in the face of the risk of salmonella. Since only ‘11% of consumers sourced eggs from farmers and growers markets and 5% from producers with a small number of hens in their backyard or from their own chickens (5%)’, the question is how much of a risk this minority of producers present or is it a moral panic?

I mean, practically, if a person gets salmonella caused gastroenteritis, how hard is it to trace?
People will usually buy small scale egg products from an easily identifiable source (‘my neighbour’, ‘Barry, who sells eggs at his front gate, on Everage Road, number 123, I think’, etc.). For example, in an ABC Hobart story aired yesterday, the example of a local café getting local eggs in exchange for free lattes for the producer was used. If the café was closed for a salmonella outbreak caused by its eggs Hollandaise… how hard would it to find ‘the offender’ (as FSANZ puts it)?

Of course, none of this will matter to the administration, they are tasked with implementing the new rules, even if there is a level of administrative extremism: ‘…the intent of the Standard is to manage food safety hazards from all eggs and egg products. Businesses are required to control all the food safety hazards identified with their particular operations.’

There is also an element of social construction in these new rules. Most of the comments to the draft Code came from major egg producers (e.g. Sunny Queen Eggs) and the perception of the FSANZ seems to be coloured with the view that unless the eggs are clean, washed, graded according to the industrial standard they are a ‘risk’ and small producers fit this mould.

FSANZ- ‘Industry food safety assurance schemes, such as the national egg industry scheme (known as Egg Corp Assured), are voluntary and industry reports that the uptake amongst small producers is low. Currently, there are approximately 30% of egg businesses registered in the program capturing 93% of the national layer flock and 80% of eggs sold.’ So the clear majority of egg producers are already doing ‘traceability’. Is there an element of demonizing the ‘outsider’ here?

When there is a conflict between State law and Commonwealth law, Commonwealth law prevails. In this sense the new Standard is Commonwealth law. However, Sates are tasked with interpreting and enforcing the FSANZ Standard, as Gazetted as Amendment No. 123. Since Tasmanian law already defines an ‘egg producer’ as a person (or group) with 20 or more hens it is arguable that this interpretation can continue. This will take a lot of community anger and stress away and relieve the Tasmanian Government of onerous rules and dislike. 

Finally, this Petition is probably a case of ‘too little, too late’; in New Zealand when the new food laws went through here was a sustained community campaign to change them at the draft stage. These people succeeded and got specific clauses inserted that identified and exempted small scale local food use and production, it seems to me that we are getting the same rules that focus down to the person and their backyard but no one in Australia has really woken up to this… we Australians haven’t stood up as the Kiwi’s did and it may be too late…

Note
As a result of the public response to the proposed NZ Food Bill the Act was explicitly changed in many ways to exclude local, small scale, food production. I think the same should happen here.

One example of changes made comes from the NZ Government response to public submissions and pressure); ‘Seeds for sowing: As it was only ever the intention that the Food Bill would apply to seeds sold for eating, wording will be changed to explicitly exclude seeds for propagation from the scope of the Bill. This will ensure that under the Food Bill people can continue to trade and sell seeds for propagation freely.
See: http://www.foodsafety.govt.nz/policy-law/reform-nz-food-regulations/food-bill/questions-answers.htm