Food Bill

Recommendation

The Primary Production Committee has examined the Food Bill and recommends that it be passed with the amendments shown.

Introduction

This bill would on commencement replace the Food Act 1981 and over time the Food Hygiene Regulations 1974 and the Food (Safety) Regulations 2002. It would also make consequential amendments to the Animal Products Act 1999 and the Wine Act 2003. It seeks to provide an efficient, risk-based regulatory regime that places a primary duty on persons trading in food to ensure that what is sold is safe and suitable.

This commentary focuses on the main amendments we recommend and does not address minor technical amendments.

Relationship with other Acts

We recommend amending clause 5 by dividing it into two clauses, clause 5 and clause 5A. Clause 5 would retain the explanation of the application of the bill. Clause 5A would clarify and provide certainty about the relationship between the bill and the Animal Products Act 1999 and the Wine Act 2003. We also recommend adding a subclause to clause 5A stating that if there is any conflict, duplication or inconsistency between a power or other form of authority conferred under the bill and those in the Animal Products Act or Wine Act in relation to an animal product or wine, then the powers or authorities conferred in the latter Acts would prevail.

Meaning of food business

We recommend that subclause 9(b)(iii) be deleted. In this subclause as introduced the definition of “food business” would capture people who do not trade in food, but are directly or peripherally involved in facilitating the trade of food, such as organisers of food markets or events.

Meaning of safety and suitability

We recommend that clause 11(5) be amended to clarify the definition of suitability as it relates to the “condition” of food. The proposed amendment would replace subclause (5) to make it clear that food is unsuitable if it is decomposed or rotten, contaminated or tainted, contains foreign objects, or is offensive in some other way. To avoid challenge to a food’s suitability on the basis of offensiveness in circumstances where the food is entirely lawful in terms of its composition (for example a vegetarian finding gelatine in a confectionery item “offensive”) we recommend the inclusion of new subclause (5A), to make it clear that a moral, religious, or ethical aversion to a particular food or ingredient would not make the food unsuitable for the purposes of the bill.

We note that in circumstances where the composition of a food is misrepresented (for example, if a café meal were described as vegan but was found by the vegan purchaser to contain animal product, or a product were incorrectly labelled as vegetarian), recourse would be available through the bill’s provisions for “truth in labelling” and through other statutes, such as the Fair Trading Act 1986.

Winemaking operations

We recommend inserting new clause 24A, which is currently clause 43, and amending it to widen the scope of the risk management tool under which winemakers can apply to have their operations included. The amendment would acknowledge that some activities that winemakers undertake will be subject to national programmes rather than food control plans. The amendment would also clarify that such operators would be required to meet Wine Act standards in relation to their winemaking activities.

Food control plans

We recommend inserting new clause 35A to specify the purposes for which regulations about food control plans could be made. Clause 35A would replace clause 347(1).

This clause would also include specific regulation-making powers, which would clarify the scope of potential regulations in respect of such matters as verification intensity and frequency, and training and competency requirements.

For the sake of clarity, we recommend replacing clauses 36–40 and replacing them with clauses covering the following matters: a chief executive’s power to amend a template food control plan; the circumstances in which a food operator may amend a template food control plan (and the process to be followed in doing so); a chief executive’s ability to register a food control plan template amended by a food operator; a food operator’s ability to amend a food control plan developed by a third party; and a food operator’s ability to amend a food control plan not based on an official template.

We recommend deleting clause 42. It was intended to provide for a person who carries out secondary processing of animal product to incorporate these activities into a registered food control plan in certain circumstances. However, this option is already available under the bill and clause 42 does not provide anything additional.

We recommend amending clause 45(1)(f) to make it clear when a food control plan would have to be verified, by adding the words “after commencement of the operations to which the registered food control plan relates”.

Regulations about national programmes

We recommend amending clause 73(1)(l) to allow national programme regulations to be more specific on the training and competency requirements for persons who are required to operate under those regulations. The amended wording would allow the regulations to require such people to undergo appropriate training, or to demonstrate competency, regarding the safety and suitability of food, food production, and food processing and handling, and to provide training for staff as appropriate.

We also recommend that clause 73(1)(c) be amended to allow regulations to prescribe the intensity of verification. This affects the cost of verification, and we consider it appropriate that this aspect of verification also be regulated.

Horticulture New Zealand and various other submitters were concerned about the potential for duplication and increased compliance costs resulting to their own certification programmes, and that the requirements of the bill could be onerous for their members. We have sought to address this matter and will monitor this closely.

Food handler guidance

A number of submitters were concerned that some of the provisions in the bill were too bureaucratic and costly. Small operators and charitable organisations were particularly concerned about this matter.

We recommend amending clause 92(2) by removing “community-based fund-raising events”, and adding two new subclauses to specify that food handler guidance applies to persons or organisations trading in food for a charitable purpose, and persons or groups trading in food for personal development. This would align this clause with proposed amendments to clauses 94 and 94A.

Charitable purpose

We recommend amending clause 94 to clarify the definition of trading in food for charitable purpose, by replacing “community-based fund-raising activities” with “charitable purpose”. The section would apply to a person or persons or organisation trading in food for a “charitable purpose”. Charitable purpose is defined in clause 94(4) of the bill. Such persons or organisations trading in food for a charitable purpose would therefore be exempt from the requirement to operate under a food control plan or national programme. The food operator would still have to operate under any food handler guidance that applies to the trade in food concerned. We also recommend requiring that the trade in food for a charitable purpose either occur not more than 20 times in one calendar year or, if it is more frequent, that it be ancillary or incidental to the main activity taking place at that location.

Schedule 3 of the bill further details the specific food sectors and food-selling activities subject to food handler guidance. We recommend a number of amendments to the schedule to make it clear who and what is covered by Schedule 3.

We recommend amending part 1(f) of Schedule 3 by deleting “infrequent” and adding “organisations, and societies (internal)”. This would cover members of a club, organisation, or society selling food to other members where the trade in food was not the purpose of the event or gathering. Along with amended clause 94 this would allow, for example, a church or religious congregation selling food to its members to be subject only to food handler guidance.

We recommend inserting new part 1(fa) into Schedule 3, “Food service sector: clubs, organisations, and societies (external)”. This would cover members of a club, organisation, or society selling food to members and guests where the trade in food was not the purpose of the event or gathering. This is intended to cover events such as a sausage sizzle at a sports match.

We also recommend that part 1(c) of Schedule 3 be amended to include the sector description “fishing vessel operators who supply food for crew”. By virtue of supplying food to crew (which is part of a remuneration package), a vessel operator would fall within the meaning of a food business and thus be captured by this bill. While the hazards associated with such food provision warrant some form of control, we felt the low risk involved and the impracticality of verifying such operations means that the best solution would be to make such activities subject to food handler guidance.

Personal development

We recommend inserting new clause 94A to provide for exemption from operating under a food control plan or national programme in circumstances where food is sold for a specified fund-raising purpose which would fall outside the scope of clause 94. The purpose must be to provide financial support required by the person selling the food, or a named other person (or group of persons), to achieve a specific purpose or goal. The trade in food would be on a non-commercial scale and on an infrequent basis, that is, no more than 20 times in one calendar year. The person or group would still be required to operate under any food handler guidance that applied to the trade in food concerned.

Small scale businesses

We recommend amending clause 95 by inserting new subclause 95(5) to provide an example of a person to whom the chief executive might grant an exemption from the requirement to operate under a registered food control plan or national programme. This example concerns someone who produces in his or her own home any food for sale, and sells the food to a consumer only, and does not employ or engage anyone else to assist in the production or sale of the food, and does not otherwise sell or distribute the food.

The treatment of very small-scale food businesses has emerged as a matter of particular interest in our consideration of the bill. Very small-scale food traders, or “cottage industries” are not distinguished in the bill. It would be difficult to quantify “small-scale” in terms of profit, quantity of product, or number of people involved in the operation, and it is also difficult to define a “cottage” food industry. Doing so could have the effect of inappropriately including or excluding particular food-trading activities. Therefore we do not recommend a generic “cottage industry” provision, and propose instead that any exemption from the requirement to operate under a food control plan or national programme regulations could be made on a case-by-case basis through the exercise of the chief executive’s exemption power under this clause.

Delegation to territorial authorities

We recommend amending clause 96 by adding subclause 96(7) and 96(8). The chief executive should be able to delegate functions, duties, or powers to territorial authorities. However, delegation of the chief executive’s power to grant an exemption from the requirement to operate under a food control plan or national programme would be limited. Subclause 96(8) would require a territorial authority acting under delegation to grant, amend, or revoke an exemption under clause 95 in accordance with the special consultative procedure specified in section 83 of the Local Government Act 2002.

Exclusivity of verification functions and activities granted to territorial authorities

We recommend inserting new clause 127A to preclude the chief executive from recognising anyone other than a territorial authority as a verifier for businesses that operate under a template or model food control plan issued under clause 32, and operate exclusively within the district of a single territorial authority, and sell food directly to consumers.

The bill as introduced does not include express provision for territorial authorities to be exclusive verifiers of any food sector. Clause 126 provides that any person or body can apply for recognition as a verifier and can be recognised as such, provided the chief executive is satisfied they are a fit and proper person. It was originally expected that territorial authority verification exclusivity would be given effect through transitional regulations made under clause 397 of the bill; however this is no longer considered appropriate because territorial authority exclusivity may not be a transitional or temporary arrangement. It would have to be determined by the outcome of a review as per new clause 127B.

However, we consider it important that the chief executive’s power to monitor the performance of territorial authorities and the Minister’s powers of review persist during the exclusivity period.

Review of operation

We recommend inserting new clause 127B to provide for a review of the operation of the new clause 127A as soon as practicable after the expiry of the legislation’s introductory period as set out in clause 375.

We consider that the advantages of territorial authorities being granted verification exclusivity outweigh the disadvantages. However, new clause 127B would ensure the arrangement was reviewed by the chief executive as soon as practicable after the expiry of the legislation’s introductory period. This review could determine whether the arrangement could still be justified once the new regime was fully implemented.

Power to issue improvement notice

We recommend inserting new clauses 267A and 267B, to give a food safety officer the authority to issue an improvement notice, and provide a right of review for a person to whom an improvement notice has been issued. The chief executive would also be allowed to initiate a review of a food safety officer’s decision to issue an improvement notice.

We felt an improvement notice regime would be a useful addition to the enforcement tools available to encourage compliance with the requirements of the bill. An improvement notice would require corrective actions to be undertaken. This could be used to provide an opportunity to correct any non-compliance, instead of an infringement notice being issued or proceedings being commenced.

Green Party minority view

The Green Party is concerned that the bill deals with the issue of food safety inconsistently and even arbitrarily.

We are concerned about the narrow definition of food safety in the bill, which allows hazards to remain in food provided they can be managed, eliminated, or minimised. We think the definition is way too wide.

The Green Party is particularly concerned at the definition of food safety, given the narrow focus by the New Zealand Food Safety Authority on managing food safety risks of microbial contamination, and the way it consistently ignores contamination by pesticides and other chemicals such as Bisphenol A, and heavy metals.

Finally, we are pleased that this bill will require importers to be registered in New Zealand and that importers will have a duty to be able to trace imported foods back to their source. We would like to see this ability to trace foods back to their source, used as the basis for mandatory country of origin labelling, and full traceability in the food supply, as is being introduced in other countries.