While the lower costs associated with sourcing goods from overseas manufacturers can be attractive, it can lead some importers to ignore some fundamental legal requirements and obligations which must be met if goods are to be supplied and/or sold legitimately in Australia. In this article we look at some of the legal issues which commonly arise for local importers or suppliers of overseas products and offer some suggestions which may assist them in complying with their legal obligations.
Just because the goods are manufactured overseas does not mean Australian law will not apply!
With the exception of some small quantity items imported for personal use, all consumer goods brought into Australia must comply with Australian law. A supplier or importer of consumer goods is responsible for complying with the laws in Australia, prior to the supply and sale of such goods in Australia.
Firstly, all goods imported into Australia, must be cleared by Australian Customs (Customs), as well as the Department of Agriculture, Fisheries and Forestry (DAFF).
Customs intercepts illegal goods such as drugs, weapons and
products which contain prohibited substances. Depending on the type
and value of the goods or products you import, there may be costs
involved, including clearance fees, customs duty and goods and
services tax (GST) and other taxes. Check to see what fees apply
and whether your goods contain any prohibited substances at:
DAFF will also assess goods to determine whether there are any
biological concerns. Particular biological goods may also be
prohibited or restricted or you may need to obtain permits to
import certain goods, such as plant, animal, mineral or human
products. Check your requirements at:
Product Specific issues
In addition to Customs and DAFF, legislation at State, Territory and Federal levels impose a number of controls and obligations on suppliers in relation to the composition, registration and labelling of certain consumer goods. There may also be minimum information obligations and safety requirements before a consumer good can be supplied or sold in Australia, to reduce the risk of injury and assist consumers to make informed choices about the products they purchase.
The laws that apply will depend on the type of product imported or supplied. For example:
The Australia New Zealand Food Standards Code and corresponding State and Territory legislation regulates all food products in Australia.
Seek legal advice to determine if your product complies with the composition, packaging, trade measurement, advertising and labelling requirements.
Certain ingredients in food may also give rise to additional regulation or the requirement for import permits. For example, foods which contain meat, fruit, eggs, vegetables or dairy products from certain countries may give rise to import conditions. More information on restricted food can be found by searching the DAFF website at http://www.daff.gov.au/biosecurity/import. Food that does not meet the relevant requirements will not be allowed into Australia.
Goods which contain certain poisons or chemicals or have the potential to harm people are also subject to legislative control and there are very prescriptive legal requirements for the storage, handling, transportation, packaging, labelling and advertising of such goods. Examples of such goods include poisons, some industrial chemicals, household cleaning products, agricultural chemicals and certain therapeutic goods. Many of the labelling and packaging requirements for poisons are set out in the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP). Seek legal advice to determine whether your goods fall within the ambit of the SUSMP and what other legal obligations there may be.
Registration of certain goods
All therapeutic goods which are sold in Australia must be listed or registered with the Therapeutic Goods Administration (TGA), unless they are specifically exempt. Therapeutic goods including complementary medicines, pharmaceuticals, medical devices and any product which makes therapeutic claims are all regulated in Australia by the TGA. In addition to listing or registering therapeutic goods, a manufacturer may be required to have a licence to manufacture the product. An importer of a therapeutic good is considered a 'sponsor' for the purposes of the Therapeutic Goods Act 1989 (Cth) and there may be certain obligations on the 'sponsor' relating to licensing, compliance and notification requirements. Sponsors are also required to hold the relevant level of evidence to support any claims made on packaging and in advertising.
There are also registration and compliance obligations for industrial chemicals, agricultural chemicals and veterinary chemical products. Seek legal advice to determine whether you meet the relevant requirements.
Certain goods, for example, watches, clothing and shoes cannot
be imported unless they are correctly labelled with the required
trade description. To find out whether the goods you are importing
need a trade description and the guidelines associated with them,
Certain products may also be the subject of mandatory safety and
information standards which require specified goods to comply with
particular performance characteristics, composition, methods of
manufacture or process, packaging and labelling information. For
example, bikes, toys, bath aids, child restraints, cots, nightwear,
swimming and flotation aids, bean bags, blinds are all subject to
such standards. A full list of standards are available at the
Australian Government's Product Safety
Other laws that may apply
There are also certain prohibitions on engaging in misleading or deceptive conduct when occurring in trade or commerce. The Competition and Consumer Act 2010 (Cth) (CCA) also contains prohibitions on certain false representations in respect of goods. For example, that goods are of a particular standard, quality, value, grade, composition, style or model or have a particular history or a particular previous use and that goods originate from a particular country or place, when they do not.
What happens if you do not comply?
Failure by an importer or supplier to comply with Australian laws may result not just in enforcement actions and penalties from the relevant authority, but also refused entry for non-compliant goods, expensive recalls and loss of reputation. Consumers can also take legal action of their own accord against the importer or supplier.
- Be informed – seek legal advice to determine what laws will apply to the products before bringing them into Australia;
- Obtain full details from the overseas manufacturers detailing the composition/ingredients of the goods;
- Check to see if your goods are the subject of any particular import restriction;
- Determine what product specific legislation will apply to your goods and whether any
- mandatory safety or information standard will apply;
- Check whether there is any particular licence required to import the goods;
- Check whether your goods need to be listed or registered with the relevant authority;
- Conduct visual checks and sample testing before supplying the goods to ensure they comply;
- Advise your manufacturers with the need to comply with the relevant Australian laws;
- Seek warranties in your agreements with the overseas manufacturers that the goods comply with the relevant Australian laws;
- Speak to your insurance provider to ensure you have adequate insurance coverage to import and sell the goods and any associated risks associated with doing so;
- Monitor and manage customer complaints.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.