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Henning Harders February 2020 Newsletter

Table of Contents

Reinstatement of BMSB Fumigation Provider

The Department of Agriculture has published a Notice to Industry advising of the reinstatement of Centro Disinfestazione Livornese Srl, Livorno, Italy (AEI: IT4004SB), who as a result can again perform BMSB heat and sulfuryl fluoride treatments for shipments destined for Australia and New Zealand.

Department of Agriculture name change

Effective from 1 February 2020, the Department of Agriculture (DoA) has been renamed and is now referred to as the Department of Agriculture, Water and the Environment (DAWE). Changes have already been made to Department letterheads which is reflected in Quarantine directions issued by the Department.

ABF Newsroom Releases

There are several news items of note again this month, details of which can be found here. The newsroom is a valuable resource for importers and exporters alike, offering insight into the Australian Border Force’s compliance activities and associated penalties.

Asbestos Due-Diligence Compliance

A reminder to importers that ABF will not generally accept a simple declaration from the importer as evidence that imported goods are free from asbestos, especially when the goods imported originate from a country where asbestos has been detected in goods previously imported from those countries. Further information is available here.

ABF expects that importers have due diligence systems in place with their suppliers, along with supporting evidence. This evidence may include, but is not limited to, the following:

  • Documentation outlining the level of assurances taken throughout the supply chain;
  • Invoices from the supplier of the goods;
  • Information about the supply chain and any quality assurance processes in place;
  • Illustrative Descriptive Material (IDM) for the products being imported;
  • Ingredients lists and bill of materials;
  • Test certificates or laboratory reports;
  • Material safety data sheets.

Similar expectations are in place for modern slavery and from DAWE with due diligence requirements for illegal logging. If any of these issues impact your business and you require assistance with due diligence processes, please contact us.

For further information on any of the above content please contact your Key Account Manager.

Coronavirus (Covid-19)

The World Health Organization (WHO) has stopped short of referring to the spread of coronavirus as a pandemic, however is urging businesses globally, as well as the public, to prepare themselves should a case be diagnosed in local communities. Useful information can be found in their release here.

Henning Harders posts regular updates regarding coronavirus, which can be found here. Alternatively, please contact your Key Account Manager or Harders Advisory for more information.

Classification of Vitamin Gummies

On 5th February 2020 the High Court handed down its decision regarding the case of Comptroller-General of Customs v Pharma-A-Care Laboratories Pty Ltd [2020] HCA 2.

Australian Border Force (ABF) appealed the decisions reached by both the AAT and Full Federal Court, that vitamin gummies and garcinia preparations are classified as medicaments in heading 3004, and are therefore duty free. ABF argued that the goods should be classified according to their constituent ingredient as sugar confectionary, of heading 1704. This would have represented a dramatic shift in classification principles, predominantly known as the wharfside test, in which you identify the goods as imported (prepared vitamin or weight loss preparations) and classify accordingly. Failing this, they argued the goods were food preparations not elsewhere specified, of heading 2106. This was in a bid to exclude the goods from Chapter 33 under an exclusion note for food or beverages, including food supplements etc.

As the decision held that the goods in question are vitamins or weight loss preparations, and not supplements, the exclusion note cannot be taken to apply. ABF now has substantial refunds to pay to affected importers, however it should be noted that this ruling applies only to vitamin gummies and garcinia preparations, and as such refunds should be applied for with caution for similar products, given the various penalty provisions ABF has at its disposal.

Please contact Harders Advisory for more information.

Department of Agriculture Inspections Update

The Department of Agriculture has taken steps to increase the number of dual-accredited officers to help with the inspection requirements, particularly for food label-visual inspections. The number of officers nationally sits at 67, an increase of 11 over the last year. The intention is to increase this number to 110 within the next 12 months.

Feedback from the Department is that BMSB inspections have not caused the same level of disruption as last year, largely due to policy changes and different IT systems. In its place, the Government’s response to the outbreak of African Swine Fever and coronavirus saw some officers reassigned to international airports to assist with passengers arriving from overseas.

The Department is currently looking at other options, particularly technological, to assist with inspections. It was mentioned that label-visual inspections equate to approximately half of all inspections, and where a label fails, a follow up inspection is required. Possible remedies for this include possible Facetime inspections, allowing officers to attend more appointments in a day by eliminating travel time; or even wearable technology, such as smart glasses, which can transmit images to officers at a desk, cutting the appointment time.

The Department has also partnered with a technology company to use new Artificial Intelligence to help cut the document assessment times. This is currently in production, with the technology working 24/7 and capable of machine learning. When programmed with the required policies, it is able to look for anomalies, missing information and fraudulent documents before an officer accesses the file for human input. It is hoped that in future, this technology will be able to interface with BICON and be put to use in other sections such as post treatments, food labelling and automated booking inspections. This would then allow the Department to train their officers to attend inspections and cut the wait times for bookings.

Henning Harders is following this development with the Department and will publish updates when available.

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