Recommendation

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

Introduction

This bill, on which we have previously commented,¹ would on commencement, replace the Food Act 1981, and over time also replace 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.

The bill seeks to maintain New Zealand’s reputation as a producer and exporter of food by providing 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. The bill also restates and reforms the law relating to the trading of food, with the aim of ensuring the safety and suitability of food for sale, and the protection and promotion of public health.

The bill has five parts. Part One sets out preliminary provisions. Part Two concerns risk-based measures for achieving the safety and suitability of food. Part Three concerns the suitability of imported food. Part Four contains provisions relating to administration and enforcement; and Part Five sets out miscellaneous provisions, including exemptions, powers of delegation, regulation-making powers, and provision for the issuing of notices.

Purpose of the bill

We recommend adding clause 4(ba) to make it clear that one of the primary purposes of the bill is to maintain New Zealand’s reputation as a producer and exporter of safe and suitable food.

Primacy of food safety

The bill as introduced does not in our view give enough weight to the principle of food safety. To maintain the primacy of food safety as the overriding principle of the bill, we recommend adding subclause 14(2), to ensure that in the event of conflict in the decision-making process between the principles in clause 14, the Minister or chief executive must give the greatest priority to that of food safety and the protection of public health.

We also note that the risk factors referred to in clause 14(e) are not specified, and we recommend that the clause be amended to include a list of all the risk factors to be considered.

The changes to clause 14 also address concerns raised by some submitters, that the introduction of international agreements and treaties could put at risk the primacy of food safety in this legislation and could undermine New Zealand’s ability to set its own food standards.

Clearance of imported food

The bill as introduced requires some high-risk foods be cleared by a food safety officer before importation. We are aware however that the Joint Border Management System will allow clearances on an automated basis. To accommodate this facility we recommend adding clauses 122A and 122B, to allow the use of automated electronic systems to perform functions otherwise performed by a statutory officer under the legislation, and to ensure that persons using the Joint Border Management System supply information to the Ministry for Primary Industries and Customs for border-related purposes such as the importation of food.

Power to enter without a search warrant

We recommend that clause 275(5) be added to ensure there is a requirement to take into account the kawa of a marae, so far as practicable in the circumstances, when powers to enter without a search warrant are exercised at a marae or building associated with a marae. This will make the bill internally consistent, because the requirement also appears in clause 294, and consistent with the Animal Products Act 1999, the Biosecurity Act 1993, and the Wine Act 2003.

Standards in relation to food

We are aware of concern that the wording of clause 346(6) concerning standards for food sold for export, and food sold domestically, may be misunderstood and cause confusion as to intention, and we recommend that it be removed from the bill.

Sale of food by small producers

The classification of food sectors in the bill is based on the degree of risk their activities pose to public health. Most operators would be required to operate under a food control plan, as would small producers of high-risk foods. We acknowledge widespread concern about the implications for small producers who sell non-high-risk produce directly to consumers, organisations that sell food to raise money for charitable purposes, and small producers operating under exemptions who sell surplus produce to retail outlets. The bill includes exemptions and provides for a range of exemption mechanisms, and we are fully satisfied that such food producers and traders would be provided with sufficient exemptions in the bill to allow them to continue these activities without curtailment.

Power to recall food

Clause 252 gives the chief executive the power to give directions to recall food or food-related accessories on the basis of a “reasonable belief” that they are unsafe or unsuitable, or contaminated, or incorrectly identified. We recognise concern that the “reasonable belief” threshold for decisions is set relatively high. We believe that a balance is necessary to ensure that food safety objectives are upheld while allowing for innovation in the manufacture and production of safe food. For this reason we have agreed to change the threshold to “doubt”.