Modernising Australian food law to address ultra-processed foods

Abstract

Ultra-processed foods supply 42 per cent of Australians’ dietary energy and are now conclusively linked to higher risks of obesity, type 2 diabetes, cardiovascular disease and increased mortality. Yet Australian food law treats danger chiefly as acute contamination rather than foreseeable chronic harm. This article argues that the existing concepts of ‘unsafe food’ in the Food Acts and ‘acceptable quality’ in s 54 of the Australian Consumer Law already accommodate chronic metabolic risk when interpreted in line with contemporary evidence. It sets out a practical reform package using nutrient ceilings, warning labels, marketing controls, stronger enforcement and expanded public-interest standing.

Australians obtain almost half (42 per cent) of their dietary energy from ultra-processed foods (UPFs) such as sugary drinks, confectionery and packaged snacks. ¹ These products are engineered to be cheap, long-lasting and highly palatable, and pervasive marketing limits consumers’ capacity to avoid them. ² Australian food law deals effectively with acute hazards such as contamination and poisoning, yet it largely ignores the chronic harms now driving the modern disease burden. The first paper in the newly released Lancet Series on UPFs confirms that sustained UPF consumption increases the risk of multiple non-communicable diseases (NCDs), including obesity, type 2 diabetes, cardiovascular disease, kidney disease, depression and all-cause mortality. ³

Although the concepts of UPFs and foods high in fat, sugar and salt (HFSS) differ, they overlap in practice. This article adopts UPFs as the system-level frame, because it captures the structural dynamics of modern diets, including corporate control over formulation, pricing and marketing. At the same time, it relies on nutrient thresholds as the administrable regulatory trigger, reflecting the reality that excessive free sugars, sodium and energy density are the principal pathways through which UPFs generate chronic harm.

Despite the evidence of the harms of UPFs, the regulatory response remains confined to choice-based tools such as warning labels and voluntary reformulation schemes. These mechanisms are poorly matched to the chronic, cumulative harms identified in the Lancet Series and have done little to shift population-level trends in NCDs. Chronic conditions account for about $98 billion (around 54 per cent) of disease-related health system spending; UPFs are increasingly recognised as a major, preventable driver of that burden. ⁴

This article argues that the statutory concepts of ‘unsafe food’ in the state and territory Food Acts ⁵ and ‘acceptable quality’ in s 54 of the Australian Consumer Law (‘ACL’) already have the breadth, when properly construed, to encompass foreseeable chronic harm arising from ordinary consumption. Modest legislative amendment is proposed not because the existing law is incapable of reaching such harms, but to remove residual interpretive doubt and to recalibrate regulatory and enforcement practice. Building on that doctrinal foundation, the article advances a practical, ready-to-legislate reform package that aligns Australian food law with current public-health evidence while preserving genuine consumer choice.

Autonomy and chronic harm: Why personal-responsibility frameworks misfit UPFs

Current food policy rests on an assumption that consumers can meaningfully choose their way out of harm, and that tools such as voluntary reformulation, front-of-pack labels and education campaigns adequately support that autonomy. This is evident in the framing of the Health Star Rating system as a tool to ‘help you make informed, healthier choices when shopping’, and in the Healthy Food Partnership and its Reformulation Program, which are explicitly voluntary collaborations aimed at ‘encouraging Australians to eat healthy foods’ by encouraging industry-led reformulation rather than constraining product design. ⁶ This assumption is questionable for two distinct reasons. First, it presumes a level of consumer agency that does not reflect the realities of the UPF-dominated food environment, where biological responses, pervasive marketing and structural pricing constraints shape consumption long before individuals exercise conscious choice. Second, it treats the harms associated with UPFs as matters of preference or lifestyle rather than foreseeable, cumulative risks akin to other chronic exposures regulated under Australian law.

Those responsible for food policy may view labelling initiatives as proportionate responses to an indirect, long-term hazard. Yet the evidence increasingly shows that nudges aimed at individual willpower cannot counter products designed for overconsumption. This section therefore explains why the reliance on personal responsibility is a poor foundation to regulating UPFs, and why the law must instead confront the structural features of these products and their marketing.

UPFs weaken the basic conditions for genuine choice. Their mix of added sugars, fats and flavour enhancers triggers fast reward responses that operate before conscious decision-making. ⁷ Over time, repeated exposure dulls normal feelings of fullness, especially in children, and makes overeating routine rather than intentional. ⁸ These effects occur regardless of nutrition knowledge. A policy approach that assumes consumers can simply ‘choose better’ is therefore out of step with products designed to make restraint difficult.

Marketing further narrows the scope for real autonomy. Children are exposed to hundreds of UPF promotions each year, including cartoon characters, influencer videos and in-game rewards that build brand loyalty well before they can understand advertising. ⁹ Adults face similar cues through price specials, prominent shelf placement, and digital prompts that exploit common decision-making biases. ¹⁰ Resisting these pushes requires constant effort, yet willpower is limited and wears down under daily pressure. ¹¹ These tactics shape the food environment and steer behaviour long before labels or education can have any effect. Measures aimed at ‘supporting choice’ sit uneasily with a marketplace built to push UPFs at every turn.

Economic pressure then reinforces these patterns. Some studies show that a recommended diet built around whole foods can cost less in absolute terms than the current UPF-heavy Australian diet. ¹² This finding could be taken to imply that price is not the central problem. Yet the same research shows that, for low-income households, a recommended basket still absorbs between one-quarter and more than one-third of disposable income, placing it firmly in the ‘food stress’ range and prompting calls for higher income support and wage measures. ¹³ In this setting, the apparent cheapness of UPFs (shelf-stable, predictable in price and low cost upfront) carries more weight than the theoretical affordability of whole foods. National purchasing data illustrate this reality: UPFs remain the dominant source of household energy and are bought in far greater volumes by lower-socioeconomic status households. ¹⁴ Recent consumption trends point the same way; between 2018–19 and 2023–24, per-capita purchases of processed poultry products such as nuggets rose by more than 30 per cent, while purchases of fresh meat barely moved. ¹⁵ When budgets are tight and time, storage and waste risk all favour UPFs, it is misleading to frame UPF intake as a free or unconstrained choice.

Taken together, the biological pull of UPFs, the marketing that shapes preferences before choices are formed, and the economic pressures that narrow what households can afford all point in the same direction: UPF consumption is not simply the product of individual decision-making but of a food system that makes these products the easiest and most accessible option. Treating this pattern as a matter of personal responsibility obscures the slow and cumulative harms that follow, keeping regulatory attention fixed on information tools rather than the conditions that drive disease. A similar point has been made in socio-legal work on food labelling, where Parker and colleagues show that front-of-pack messages often frame food risks as matters that consumers can manage through better individual choices, even though the underlying drivers lie in product design and market structure. ¹⁶

International developments reinforce this shift in perspective. On 2 December 2025, the City of San Francisco filed a first-of-its-kind lawsuit against 10 major food companies, alleging that they marketed and sold UPFs knowing they were harmful, engineered to be addictive and a driver of escalating public-health costs. ¹⁷ Public-health experts have compared the case to early tobacco litigation, noting that it reflects a tipping point in scientific consensus and regulatory willingness to treat cumulative dietary harm as foreseeable and actionable. Although at an early stage, the proceedings signal a broader move to frame UPFs not as lifestyle choices but as products capable of causing long-term system-level harm. That emerging view strengthens the argument that Australian food-safety law must evolve beyond its narrow focus on acute hazards and recognise the foreseeable chronic risks that now dominate the national disease burden.

Acute-hazard fixation in Australia’s consumer and food-safety regime

This part of the article proceeds in three steps. The first tests the ACL’s ‘acceptable quality’ guarantee and misleading-conduct rules against chronic dietary risk. The next turns to the state and territory Food Acts and the Food Standards Code, asking whether their safety definitions reach slow-burn nutrient hazards. The third section reviews the Australian Competition and Consumer Commission (ACCC) product-safety priorities and recall record. Taken together, the three layers show a common fixation on acute injury and illuminate the doctrinal and enforcement gap that later reforms must close.

Australian Consumer Law

Schedule 2 to the Competition and Consumer Act 2010 (Cth) contains the ACL, which codifies consumers’ core rights and protections. In interpreting ‘acceptable quality’ under s 54 (and earlier s 74B of the Trade Practices Act 1974 (Cth)), courts have tended to assess goods through the prism of immediate acute hazards. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 (‘Barclay Oysters’) illustrates this point. Consumers contracted Hepatitis A after eating Wallis Lake oysters contaminated by faecal runoff. The High Court asked whether the oysters were immediately unfit for human consumption and whether the grower’s failure to stop harvesting breached the guarantee formerly found in s 74B. The analysis never ventured into long-term dietary risk; it focused solely on the short-term infection threat. The same judicial logic now guides s 54: a product is unacceptable when it poses an acute danger detectable at or near the time of sale. Chronic conditions such as type 2 diabetes or cardiovascular disease (foreseeable outcomes of sustained UPF intake) have not yet been tested against the ‘acceptable quality’ standard. ¹⁸ Until s 54 is re-read (or amended) to capture cumulative harm, liability will continue to turn on sudden contamination events like Barclay Oysters, leaving the slow-burn risks of UPFs outside the safety net.

Section 54 embeds safety squarely within the guarantee of ‘acceptable quality’. The Explanatory Memorandum defines acceptable quality to mean, among other things, that goods are ‘safe’. ¹⁹ It then applies a reasonable-consumer test, asking whether ‘a reasonable consumer, who is fully acquainted with the state and condition of the goods, would regard them as acceptable’. ²⁰ Later the drafters re-state the point, listing a ‘guarantee as to acceptable quality … that the goods are … safe’. ²¹ They emphasise that the consumer guarantees cannot be contracted out of: s 64 makes any attempt to waive them void. ²²

The product-safety chapter takes the same expansive view. An interim ban may be imposed where goods ‘will or may cause injury’ in their intended or ‘reasonably foreseeable’ use or misuse. ²³ Read together, these passages show Parliament intended the acceptable-quality guarantee to cover all aspects of safety, from design hazards through to risks that emerge only when a consumer predictably misuses the goods. Yet regulators and litigants have never used s 54 to tackle the slow-burn harms of UPFs, a gap this article seeks to close.

Misleading-conduct rules are no better. Sections 18 and 29 of the ACL prohibit false or deceptive health representations, yet most UPF advertising relies on bright packaging, cartoon mascots and discount pricing rather than explicit health claims. ²⁴ The ACCC’s enforcement activity in the food sector has largely targeted discrete credence claims about provenance (where food/ingredients are sourced), production processes and product composition, rather than the broader persuasive strategies by which packaging and promotion shape consumer perceptions. ²⁵ A confectionery company that accurately promotes a lolly’s flavour and ‘fun’ appeal therefore complies with the law, even though frequent consumption of the product may undermine health.

Food Acts and the Food Standards Code

The state and territory Food Acts and the Australia New Zealand Food Standards Code govern day-to-day food safety. Both focus on immediate threats such as salmonella, listeria and glass fragments while overlooking nutrient profiles that cause long-term illness. Each Food Act says a product is unsafe if it is ‘likely to cause physical harm’, but inspectors read ‘harm’ as acute poisoning. ²⁶ They order recalls for listeria or undeclared peanuts, never for sugar-laden foods that raise cardiovascular risk.

The Food Standards Code takes the same narrow view. It sets microbiological limits, pesticide tolerances and label formats, yet a breakfast cereal that is 40 per cent sugar still meets the standard because sucrose is a permitted ingredient. ²⁷ Industry marketing is regulated only through the voluntary Australian Association of National Advertisers (AANA) Food and Beverages Advertising Code, ²⁸ administered by the advertising industry itself. The strongest consequence of a breach is withdrawal of the advertisement and public naming by the Standards Board, rather than any legal penalty. ²⁹ On paper the law could reach slow-acting harms; in practice chronic disease is treated as an issue of personal willpower rather than product safety.

A recent Federal Court proceeding illustrates the gap. In ACCC v HJ Heinz Company Australia Limited [2018] FCA 360 the ACCC obtained $2.25 million in civil penalties after Heinz misleadingly promoted as a healthy choice a toddler snack containing approximately 60 per cent sugar. ³⁰ The case shows that meaningful sanctions arise only when nutrient-related concerns can be reframed as misleading conduct under the ACL. Neither the state and territory Food Acts nor the Food Standards Code provided a pathway to penalise the product’s inherently unsafe nutrient profile. The regulatory response thus depends on contested front-of-pack messaging rather than the underlying composition, highlighting the limits of a regime that treats nutrition-driven chronic harm as outside the scope of food safety law.

Parliament and regulators recognise the gap yet still frame it narrowly. The 2024 Impact Analysis for the Food Standards Australia New Zealand Act 1991 (Cth) records extensive stakeholder concern that the Act’s paramount objective – ‘the protection of public health and safety’ – is undefined in practice, so decision-makers focus on acute food-borne risks rather than long-term nutrition-related harms. ³¹ Public-health stakeholders have pressed for the objects of the Act to reflect long-term diet-related harm as well as acute food-borne illness. ³² In response, the Impact Analysis proposes amendments to ss 3 and 18 so that ‘protection of public health and safety’ is expressly defined to encompass both acute and long-term health outcomes. In doing so, it relies on a policy guideline adopted by Australian Food Ministers in 2013, and reaffirmed in 2022, which was developed to guide national food regulation and clarifies that public health includes ‘preventable diet-related disease, illness and disability’ alongside acute food safety concerns. The proposal is intended to resolve ambiguity about whether long-term nutrition-related harm falls within the Act’s objectives, rather than to mandate how such harm should be prioritised or operationalised in regulatory decision-making. ³³ While the report also recommends a new risk-based framework for standard-setting, most of the concrete reforms centre on process streamlining and new pathways, rather than a detailed re-specification of how chronic disease risk should be weighted in decisions by Food Standards Australia New Zealand (FSANZ). ³⁴

A similar narrow focus appears elsewhere in consumer protection. The ACCC handles product safety although its priorities concentrate on sudden and visible dangers. As a result, the slow harm caused by everyday food products remains largely overlooked – a gap examined in the next section.

ACCC product-safety agenda remains fixated on sudden injury

The ACCC’s current priorities catalogue hazards such as ‘products containing button batteries and toppling furniture’ under the banner of young children’s safety, alongside infant-sleep devices and lithium-ion batteries. ³⁵ Nowhere in the 2023–24 list is there any reference to foods whose routine consumption accelerates obesity, diabetes or heart disease.

That short-sighted focus is mirrored in the ACCC’s use of its ban-and-recall powers. Recent enforcement action has targeted lithium-ion batteries in e-bikes because faulty cells ‘can lead to spontaneous combustion … [posing] risk of serious injury or death’. ³⁶ Comparable action against UPFs that quietly erode cardiometabolic health has never been attempted.

Together, the priorities document and the recall database confirm that ACCC safety policy still treats danger as something that explodes, suffocates, or poisons right away. NCDs, although currently Australia’s leading cause of preventable mortality, sit outside the frame. Until the priorities explicitly acknowledge long-term nutritional risk, the ACCC’s formidable ban powers will continue to protect consumers from battery fires but not from the slow-burn harms stocked on every supermarket shelf.

Across the ACL, the Food Acts, the Code, and ACCC enforcement, the law could address chronic dietary harm but seldom does. This disconnect between statutory reach and regulatory practice creates a gap that the next section sets out to bridge.

Recasting ‘unsafe’ and ‘acceptable quality’: Doctrinal foundations

This part is confined to principle. It revisits the key safety concepts in the state and territory Food Acts (‘unsafe food’) and in s 54 of the ACL (‘acceptable quality’) and shows, by reference to contemporary High Court method, how each can already encompass foreseeable chronic disease resulting from ordinary consumption. Where interpretation alone may leave doubt, brief model clauses are suggested to confirm the position. Operational devices such as nutrient ceilings, warning labels, and enforcement powers are reserved for the next section, which translates these doctrinal foundations into concrete regulatory tools.

Re-reading ‘unsafe food’

All state and territory Food Acts already provide that food is unsafe if it is ‘likely to cause physical harm’. ³⁷ Contemporary High Court method requires those words to be read in light of current scientific knowledge and statutory purpose. ³⁸ As established earlier, evidence from nutrition science and UPF research clearly demonstrates that diets high in free sugars, sodium and other ultra-processed components foreseeably increase, among other things, the risk of type 2 diabetes, stroke and heart failure. ³⁹ On that footing, chronic disease is logically encompassed by the existing concept of ‘physical harm’, even if the harm unfolds cumulatively rather than acutely.

Although regulators could issue guidance confirming that ‘physical harm’ includes foreseeable chronic illness, guidance alone is not sufficient. It does not bind courts, may change with administrative priorities, and cannot reliably shift entrenched enforcement practice. A simple amendment to the definitional provisions of the Food Acts would provide durable clarity. The model clause below illustrates the intended effect:

Physical harm includes illness arising from the cumulative ingestion of nutrients or additives at levels exceeding thresholds known to increase morbidity or mortality.

Such an amendment would remove interpretive doubt and align the statutory text with current scientific understanding. Guidance may assist in the interim, but legislative amendment is the clearest and most stable mechanism for ensuring that slow-burn metabolic harms fall within the existing safety framework.

Re-reading ‘acceptable quality’

Section 54 of the ACL requires goods to be of ‘acceptable quality’, including that they are safe and fit for purpose when supplied. The test is anchored in what a reasonable consumer would expect of the product’s state and condition, not in any assumption about their specialist knowledge or nutrition literacy. Many consumers may not know, and cannot be expected to know, the exact metabolic consequences of sustained exposure to UPFs. The inquiry instead concerns the attributes of the product at the point of supply and the risks those attributes objectively create.

The High Court’s reasoning in Williams v Toyota Motor Corporation Australia Limited [2024] HCA 38 (‘Toyota’) illustrates how s 54 accommodates hazards that manifest over time. The defect in this case consisted of an inherent vehicle design fault that created a ‘relatively high’ prospective risk of malfunction rather than an immediately observable failure. Although an ordinary consumer could not diagnose or predict the technical failure mechanism, the Court held that the latent risk nonetheless rendered the vehicles unacceptably defective because the flaw existed at the moment of supply, irrespective of when or whether the adverse consequences later materialised. ⁴⁰ The consumer’s task was not to possess technical knowledge, but to receive a product whose inherent characteristics did not expose them to an unacceptable safety risk.

UPFs present a structurally similar problem. Their formulation, often including high concentrations of free sugars, sodium, or combinations of additives, creates a foreseeable long-term risk of chronic illness. That risk exists at the moment of supply and flows from product design rather than consumer behaviour or awareness. On this logic, chronic metabolic harm is properly characterised as an intrinsic safety defect within s 54’s guarantee of ‘acceptable quality’.

Although this interpretation is available on the current statutory text, legislative amendment would provide greater certainty. Like the above section, guidance from regulators could assist in the short term, but it does not bind courts or reliably change enforcement practice. A brief amendment to s 54 could make the intended scope explicit, for example:

In assessing safety for the purposes of this section, a court must consider reasonably foreseeable chronic illness arising from ordinary consumption.

Such an amendment would bring the ACL closer to the breadth of the United Kingdom (UK) product-safety definition, which in principle covers risks that manifest ‘after a definite or indefinite period’. ⁴¹ Although UK regulators have not applied this standard to chronic dietary harms, its wording illustrates how safety concepts can extend beyond immediate injury.

Redefining the law is not enough on its own. Experience with tobacco shows that liability doctrines and even very large settlements rarely transform dominant markets. ⁴² The 1998 Master Settlement Agreement required the major US cigarette companies to pay approximately USD 208 billion to individual US states. While the payments were made to state governments rather than the federal government, the industry largely recovered these costs through higher retail prices, and many states redirected substantial portions of the revenue into general budget expenditure rather than tobacco prevention and control. ⁴³ Smoking prevalence in the most affected jurisdictions shifted only modestly. ⁴⁴ Litigation delivered compensation and disclosure but little deterrence: well-capitalised firms absorbed the hit, prolonged proceedings, and adjusted their marketing without altering the core product. Substantive behavioural change in tobacco control occurred only when litigation was paired with structural measures such as excise taxes, plain packaging, and comprehensive advertising bans.

A similar pattern is likely in the UPF context. Recognising chronic dietary harm within ‘physical harm’ and ‘acceptable quality’ is a necessary doctrinal step, but it will have limited impact unless accompanied by hard-edged regulatory levers. The next part therefore sets out a practical reform package designed to make that doctrinal shift operational.

A practical reform package

Before turning to the specific regulatory tools, a brief re-clarification is needed about the relationship between UPFs and HFSS foods. This article adopts the UPF framing because it captures the structural dynamics of modern diets, including corporate control over formulation, pricing and marketing. ⁴⁵ It differs from the narrower HFSS approach, which focuses on the nutrient profile of individual products and is better suited to reformulation and threshold-based rules. ⁴⁶ Critics of the UPF paradigm rightly observe that nutrient-focused measures alone cannot resolve the broader problems associated with ultra-processing, and this article does not claim otherwise. ⁴⁷ However, UPFs and HFSS products substantially overlap in practice, and excessive free sugars, sodium and energy density are key pathways through which UPFs drive chronic harm. Reformulation is therefore not a cure-all, but it is a practicable and evidence-based step that can reduce immediate health risks while longer-term system change evolves. The measures proposed here should be read on that footing: not as an attempt to eliminate UPFs at once, but as realistic interventions that materially curb the damage caused by the current supply.

With that clarification in place, this section of the article sets out a package of reforms that can be implemented using existing statutory powers. It begins with nutrient ceilings in a new Schedule to the Food Standards Code, followed by mandatory front-of-pack warning symbols, a national marketing code administered by the ACCC, strengthened recall and penalty powers, and expanded public-interest standing.

Nutrient ceilings in the Food Standards Code

The Food Standards Code could add a new Schedule which could codify World Health Organisation ceilings; no more than 10 g added sugars per 100 g solid food, 5 g per 100 mL beverages, and 400 mg sodium per 100 g savoury products so that anything above those thresholds is automatically unsafe. ⁴⁸ A three-year roll-in is realistic because FSANZ has already allowed comparable lead-in periods for the added-sugar content-claim reforms (29 October 2024 to 29 October 2028), pregnancy warning labels on alcoholic beverages (31 July 2020 to 31 July 2023), and plain-English allergen labelling (25 February 2021 to 25 February 2024, with a post-transition stock-in-trade period to 26 February 2026). ⁴⁹ Once the new Schedule is fully operative, products breaching a ceiling would be ‘unsafe’ under the state and territory Food Acts and, by corollary, fail the ‘acceptable-quality’ guarantee in s 54 of the ACL, exposing suppliers to recalls, penalties and private actions.

Front-of-pack warning symbols

A front-of-pack warning system could mirror the Chilean model by mandating prominent standardised symbols on products that exceed defined nutrient thresholds. Where a food surpasses the ceiling for sugars, sodium, saturated fat or energy, the package would be required to display a black octagonal shaped warning stating ‘HIGH IN SUGAR’ or ‘HIGH IN SODIUM’, covering at least 15 per cent of the principal display panel in plain, high-contrast type.

Chile’s identical symbol delivered more than a labelling tweak: three years after roll-out, household purchases of beverages high in sugar fell by 54 per cent and total sugar purchases dropped 37 per cent, with parallel reductions in energy (23 per cent), sodium (22 per cent) and saturated fat (16 per cent). ⁵⁰ Those results give Australian regulators a concrete benchmark for impact and timing. While warning labels do rely to some extent on personal choice, their role here is limited. The Chilean experience shows that clear front-of-pack warnings can shift behaviour even in a saturated food environment, but only when paired with stronger measures. Information alone is weak; information backed by nutrient ceilings, marketing restrictions, and enforcement powers is not. The proposed warnings are therefore a supplement rather than a standalone fix. They help curb harm but do not claim to solve the UPF problem on their own. As Professor Parker’s work makes clear, labels can assist consumers but cannot substitute for structural regulation, because they do not alter the underlying composition, production conditions, or promotion of the product. ⁵¹

An ACCC-administered marketing code

A nationally applicable UPF Code could be prescribed by regulation under s 51AE of the Competition and Consumer Act 2010 (Cth). The Code would set mandatory conduct standards for suppliers and advertisers of products that fail the proposed Schedule nutrient thresholds. Core rules could include, for example: a prohibition on advertising such products during children’s TV viewing periods; a ban on paid influencer content directed at persons under 16 years old; and restrictions on price-based promotions that tie these products to toys, loyalty points or similar inducements. Enforcement would rest with the ACCC, which could issue infringement notices for each contravention, with persistent non-compliance exposed to Federal Court civil penalty proceedings. ⁵²

Recall and penalty powers

State and territory food regulators could be empowered to issue improvement notices requiring correction of non-compliant labels and, where necessary, on-shelf reformulation to meet the proposed Schedule thresholds. If a product continues to breach the Schedule after a six-month remediation period, the ACCC could invoke existing recall powers under the Food Acts to require its withdrawal from sale. ⁵³ Parallel civil penalty proceedings may also be brought under s 224 of the ACL, providing an additional deterrent to repeated or wilful non-compliance.

Standing for public-interest litigants

Section 232 of the ACL already permits a court to grant an injunction ‘on application by the regulator or any other person’, which in principle gives NGOs, charities and consumer groups the standing to restrain unlawful conduct. In practice, however, this pathway is rarely used, partly because the Act’s asymmetric cost protections apply only to regulators. Under s 234(2), a court must not require the regulator to give an undertaking as to damages when seeking an interim injunction, yet this shield does not extend to civil-society applicants, who remain exposed to adverse-cost risks.

A targeted amendment could make this mechanism operational for public-interest enforcement. Section 232 could be supplemented with an express definition of ‘public-interest applicant’ covering registered health charities and consumer organisations, coupled with a new subsection paralleling s 234(2) to confer the same undertaking-as-to-damages protection on those applicants. Equivalent wording could be added to s 237, which presently restricts compensatory and declaratory relief to the regulator or an ‘injured person’. Extending standing and cost protection to health NGOs in this manner would emulate the tobacco-control experience, where empowered civil-society litigants played a sustained role in prompting both regulators and industry to strengthen public-health safeguards.

Monitoring and review

A joint ACCC–FSANZ data portal would publish annual dashboards reporting compliance rates, reformulation activity, and changes in sales patterns. These metrics enable transparent evaluation of regulatory performance and identify sectors requiring intensified enforcement. The Food Ministers’ Meeting, as the intergovernmental forum responsible for national food regulatory policy, would review nutrient ceilings at five-year intervals to reflect updated dietary guidelines and emerging scientific evidence.

Embedding the proposed Schedule nutrient ceilings, prominent black-octagon warnings, an ACCC-administered marketing code, strengthened recall powers, and expanded public-interest standing, reframes chronic diet-related disease as a straightforward product-safety failure. Any item that breaches the ceilings is automatically ‘unsafe’ under the state and territory Food Acts, flouts the s 54 ‘acceptable-quality’ guarantee and exposes suppliers to recalls, penalties, and private suits – shifting liability from the public purse to the firms that profit. Child-facing advertising bans, influencer restrictions, and Chile-style front-of-pack alerts make non-compliance commercially untenable and catalyse reformulation. Annual dashboards and half-decade ministerial reviews ensure that thresholds remain scientifically current and that industry performance is publicly visible. Together, these mechanisms translate diffuse public-health costs into defined legal risks that industry must internalise.

Conclusion

Ultra-processed foods now account for a major share of Australia’s preventable disease burden, yet the statutes designed to safeguard public health continue to conceptualise danger primarily as a matter of acute contamination. This article has demonstrated that the existing legal architecture is more capacious than current enforcement practice suggests. The definition of ‘unsafe food’ in the state and territory Food Acts, and the guarantee of ‘acceptable quality’ in s 54 of the ACL, are capable – when read in accordance with contemporary High Court method – of encompassing foreseeable chronic illness arising from ordinary consumption. Properly interpreted, these provisions already reach the metabolic risks associated with UPFs.

Doctrinal recognition alone, however, will not shift market behaviour. The reform package proposed here operationalises that doctrinal breadth through concrete regulatory levers: nutrient ceilings in a new Schedule to the Food Standards Code; mandatory front-of-pack warning symbols; an ACCC-administered marketing code; strengthened recall and civil-penalty triggers; and cost-shielded standing for public-interest applicants. Each component already fits within existing legislative powers. Together, they convert chronic dietary harm from a diffuse population-level problem into specific legal obligations that suppliers must satisfy.

These measures do not create a new regulatory system. They align Australia’s food-safety framework with contemporary scientific evidence, and they would ensure that the economic burden of chronic disease rests with the firms that design, formulate and promote harmful products rather than with the public health system. If adopted, the reforms would move Australian food law beyond a narrow focus on acute hazards, and embed a principled and prevention-oriented model of safety that reflects the realities of modern diets.