Food Bill

Government Bill

160—3

As further reported from the Primary Production Committee

Commentary

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.

Bill chronology

The Food Bill (No 160–2) was first introduced to the House on 26 May 2010, had its first reading on 27 July 2010 and was reported on by the Primary Production Committee on 16 December 2010. On 2 July 2013, it was returned to the Primary Production Committee.

Our commentary covers the main amendments we recommend to the bill.

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.

Appendix

Committee process

The Food Bill was referred to the committee on 2 July 2013. The closing date for submissions was 16 August 2013. We received and considered 527 submissions from interested groups and individuals. We heard 19 submissions.

We received advice from the Ministry for Primary Industries.

Committee membership

Shane Ardern (Chairperson)

Steffan Browning

Hon Shane Jones

Colin King

Ian McKelvie

Hon Damien O’Connor

Eric Roy


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Hon Nikki Kaye

Food Bill

Government Bill

160—3

Contents

1 Title

2 Commencement

2 Commencement

Part 1
Preliminary provisions

Subpart 1Introduction

3 Overview

4 Purpose

5 Application of Act

5 Application of Act

5A Relationship between this Act and Animal Products Act 1999 and Wine Act 2003

6 Act binds the Crown

Subpart 2Interpretation

General

7 Interpretation

Meaning of food

8 Meaning of food

Meaning of food business

9 Meaning of food business

Meaning of processing and handling

10 Meaning of processing and handling

Meaning of safety and suitability

11 Meaning of safety and suitability

Meaning of sale

12 Meaning of sale

Subpart 2APrimary duty of persons who trade in food

12A Primary duty of persons who trade in food

Subpart 3Regulatory roles

Principles for persons with regulatory roles under this Act

13 Principles governing relationships between Minister, chief executive, and territorial authorities

14 Principles to be applied in performing functions or duties, or exercising powers, under this Act

Outline of regulatory roles under this Act

15 Role of Minister

16 Role of chief executive

17 Role of territorial authorities

Subpart 4Primary duty of persons who trade in food

18 Primary duty of persons who trade in food

Part 2
Risk-based measures

Subpart 1General

Preliminary

19 Overview of this Part

Classification of food sectors

20 Classification of food sectors for purpose of assigning applicable risk-based measures

21 Power to amend Schedules 1 to 3 by Order in Council

Application of risk-based measures

22 Determining applicable risk-based measure for food businesses that come within food sectors not classified in Schedules 1 to 3

22A Food business not subject to risk-based measure only because it imports food

23 Determining applicable risk-based measure for food businesses that overlap 2 or more food sectors

24 Operator of food business may choose to operate under food control plan even if food business is in food sector classified under lower level of risk

24A Winemaker may apply for winemaking operations to be included under registered food control plan or national programme

Requirement to operate under applicable risk-based measure

25 Requirement to operate under applicable risk-based measure

26 Exception to section 25

26 Exception to section 25

26A Where food control plan and national programme do not apply

26B Exemption from food control plan and national programme if trading in food for certain fund-raising

26C Exemption does not apply in prescribed circumstances

26D Chief executive may grant exemption from requirement to operate under registered food control plan or national programme

26E Chief executive may delegate functions, duties, or powers under section 26D to territorial authorities

Subpart 2Food control plans

Preliminary

27 Purpose of this subpart

Food control plans

28 Food control plan: general description

29 Food control plan: development

30 Food control plan: coverage

31 Food control plan: based on template or model

31 Food control plan: based on official template or model

32 Food control plan: chief executive's power to issue official template or model

33 Food control plan: chief executive's power to approve official template or model developed by third party

34 Food control plan: form

35 Food control plan: contents

35A Regulations about food control plans

Amendments to food control plans

36 Amendments to food control plan based on template or model issued by chief executive

37 Amendments to food control plan based on template or model approved by chief executive

38 Significant amendments to food control plan

39 Application for registration of amendment

40 Registration of amendment to, or replacement for, food control plan

Amendments to food control plans

36 Chief executive's power to amend, replace, or revoke template or model issued under section 32

37 Operator may amend food control plan based on template or model issued under section 32 or approved under section 33

40 Operator may amend food control plan not based on official template or model

40A Sections 49 to 53, 55, and 56 apply to applications for registration of amended food control plans

Requirement to register food control plans

41 Food control plans must be registered

41 Food control plans must be registered

Other provisions relating to registered food control plans

42 Secondary processor of animal product that is food may apply for operations to be included under registered food control plan

43 Winemaker may apply for winemaking operations to be included under registered food control plan

44 Requirements of Act to prevail in cases of inconsistency with registered food control plan

Duties of operators of registered food control plans

45 Duties of operators of registered food control plans

46 Operator of registered food control plan must notify registration authority of significant change in circumstances

Registration of food control plans

47 Application for registration: who may apply

48 Application for registration: who is appropriate registration authority

49 Application for registration: form and content

50 Registration authority may refuse to process application for registration

51 Registration authority may require further information

52 Criteria for registration of food control plan

53 Refusal to register food control plan

54 Applicants for registration must notify registration authority of significant change in circumstances

55 Registration of food control plan

56 Registration authority may impose conditions on registration of food control plan

57 Duration of registration

58 Registration may not be transferred

Suspension of operations under registered food control plan

59 Mandatory suspension

60 Registration authority may extend mandatory suspension

61 Voluntary suspension

62 Effect of suspension

Removal of registration of food control plans

63 Removal from public register

64 Cancellation of registration

65 Effective date of cancellation

66 Effect of cancellation of registration

67 Removal of food business from coverage of food control plan

68 Surrender of registration

69 Effective date of surrender

Subpart 3National programmes

Preliminary

70 Purpose of this subpart

National programmes

71 National programme: general description

72 How national programme may be imposed

73 Regulations about national programmes

74 National programme not invalid on certain grounds

75 Requirements of national programme to prevail in cases of inconsistency with other regulations or specifications made under this Act

Requirement for food businesses subject to national programme to register

76 Food businesses subject to national programme must be registered

76 Food businesses subject to national programme must be registered

Duties of operators of food businesses subject to national programme

77 Duties of operators of food businesses subject to national programme

78 Operators of food businesses subject to national programme must notify registration authority of significant change in circumstances

Registration of food businesses subject to national programme

79 Registration of food business

79 Application for registration: who is appropriate registration authority

79A Application for registration: form and content

79B Registration authority may refuse to process application for registration

79C Registration authority may require further information

79D Criteria for registration of food business subject to national programme

79E Refusal to register food business subject to national programme

79F Registration of food business subject to national programme

79G Registration authority may impose conditions on registration of food business

Suspension of operations of registered food business under national programme

80 Mandatory suspension

81 Voluntary suspension

80 Mandatory suspension

81 Registration authority may extend mandatory suspension

81A Voluntary suspension

81B Effect of suspension

Removal of registration of food business

82 Removal from public register

83 Cancellation of registration

84 Surrender of registration

83 Cancellation of registration

84 Effective date of cancellation

84A Effect of cancellation of registration

84B Surrender of registration

84C Effective date of surrender

Subpart 4Monitoring programmes

85 Purpose of this subpart

86 Monitoring programme: general description

87 Monitoring programme: scope

88 How monitoring programme may be imposed

88 Regulations about monitoring programmes

89 Chief executive may specify certain matters by notice

90 Monitoring programme not invalid on certain grounds

Subpart 5Food handler guidance

91 Purpose of this subpart

92 Food handler guidance: general description

93 Food handler guidance: effect

94 Exemption for certain persons involved in community-based fund-raising activities

95 Chief executive may grant exemption from requirement to operate under registered food control plan or national programme

96 Chief executive may delegate functions, duties, or powers under section 95 to territorial authorities

Part 3
Food imported for purpose of sale

Preliminary

97 Purpose of this Part

98 Interpretation

99 Restriction on importation of food for purpose of sale

100 Food clearance

Duties of importers and registered importers

101 Duties of importer

102 Duty of registered importer

Registration of importers

103 Who must be registered

104 Application for registration

105 Chief executive may refuse to process application for registration

106 Chief executive may require further information

107 Criteria for approval of application for registration

108 Refusal to register

109 Registration

110 Duration of registration

111 Registration may not be transferred

112 Registered importers must notify chief executive of significant change in circumstances

Suspension of registered importer’s operations

113 Mandatory suspension

114 Chief executive may extend mandatory suspension

115 Voluntary suspension

116 Effect of suspension

Removal of importer’s registration

117 Removal from public register

118 Cancellation of registration

119 Effective date of cancellation

120 Effect of cancellation of registration

121 Surrender of registration

122 Effective date of surrender

Provisions relating to border information supplied using JBMS

122A Border information supplied using JBMS must be supplied in approved form and manner

122B Duty to use JBMS to supply border information

Part 4
Provisions relating to recognition, territorial authorities, administration, and enforcement

Subpart 1Recognised agencies and recognised persons

Preliminary

123 Purpose of this subpart

Duties of recognised agencies and recognised persons

124 Duties of recognised agencies

125 Duties of recognised persons

Recognition

126 Recognition of agency responsible for verification and other specialist functions and activities

127 Certain persons or bodies may be treated as recognised agency

128 Recognition of person responsible for verification and other specialist functions and activities

129 Certain individuals to be treated as recognised person

130 Application for recognition

131 Chief executive may require further information

132 Refusal to grant recognition

133 Grant of recognition

134 Chief executive may impose conditions on grant of recognition

135 Duration of recognition

136 Recognition may not be transferred

137 Recognition fees

Suspension of recognition

138 Mandatory suspension

139 Chief executive may extend mandatory suspension

140 Effect of suspension

Removal of recognition

141 Removal from public register

142 Withdrawal of recognition

143 Surrender of recognition

144 Effective date of surrender

Miscellaneous

145 Liability for loss

Subpart 1Recognised agencies, persons, and classes of persons

123 Outline of this subpart

Recognition of agencies, persons, and classes of persons

124 Recognition of agencies

125 Recognition of certain agencies without application

126 Recognition of territorial authorities for certain verification functions and activities

127 Review of operation of section 126

128 Recognition of persons

129 Recognition of certain persons without application

130 Recognition of classes of persons

131 Interrelationship between sections 124, 125, and 128 to 130

Recognition process

132 Application for recognition

133 Chief executive may require further information

134 Proposal to refuse application to recognise agency, person, or class of persons

135 Proposal to exclude members, or categories of members, from recognition of class

136 Chief executive may impose or vary conditions of recognition

137 Grant of recognition

138 Scope, effect, and transfer of recognition

139 Duration of recognition

140 Renewal of recognition before expiry

141 Application for renewal of recognition

142 Substituted notice of recognition

143 Ongoing recognition fees, charges, or levies

Performance of specified functions and activities

144 Duties of recognised agencies

144A Duties of recognised persons

144B Recognised agency or person may act in other capacities

Suspension of recognition

144C Suspension of recognition of recognised agency, etc

144D Chief executive may extend suspension

144E Method of suspension of recognition

144F Suspension does not limit other actions

Withdrawal of recognition

144G Withdrawal of recognition of recognised agency or recognised person

144H Withdrawal of recognition of recognised class

144I Method of withdrawal of recognition

Surrender of recognition

144J Surrender of recognition

144K Effective date of surrender

Removal of registration of recognised agencies, recognised persons, and recognised classes

144L Removal from public register

Miscellaneous matters

144M Notification to category or class of persons

144N Means of consultation

144O Chief executive may require notification of termination of contracts

144P Chief executive must consider exemption, waiver, or refund of fees

145 Liability for loss

Subpart 2Territorial authorities

Functions and duties of territorial authorities

146 Functions of territorial authority

147 Duties of territorial authority

National outcomes for territorial authorities

148 Minister may issue national outcomes for territorial authorities

Transfer of territorial authority's functions, duties, and powers to another territorial authority or regional council

149 Transfer of functions, duties, and powers to territorial authority or regional council

150 Effect of transfer to territorial authority or regional council

151 Records of transfer

Transfer of territorial authority's functions, duties, and powers to chief executive

152 Transfer of functions, duties, and powers to chief executive

153 Transfer agreement

154 Effect of transfer to chief executive

155 Change, revocation, or relinquishment of transfer

156 Records of transfer, change, etc

Monitoring performance of functions and duties, and exercise of powers, by territorial authorities

157 Powers of chief executive for monitoring performance of functions and duties and exercise of powers

Review of territorial authorities

158 Reviews initiated by Minister

159 Terms of reference

160 Minister to consult on terms of reference

161 Appointment of person to conduct review

162 Powers of reviewer

163 Conduct of review

164 Report of review

164A Part 10 of Local Government Act 2002 not affected

Non-performance by territorial authority

165 Powers of Minister in relation to non-performance by territorial authority

166 Requirements for appointment

167 Effect of appointment

168 Duration of appointment

169 Costs, charges, and expenses incurred

Subpart 3Cost recovery

170 Principles of cost recovery

171 Methods of cost recovery

172 Territorial authority responsible for  collection

173 Cost recovery to relate generally to financial year

174 Three-yearly review of cost recovery

174A Regulations about fees, charges, and levies

175 Regulations may impose fees and charges

176 Territorial authority to set fees

176 Territorial authority to set fees

176A Regulations may prescribe methodology or framework for fee fixing

177 Regulations may impose levies

178 Regulations may provide for exemptions, waivers, and refunds

179 Trust accounts required to be kept by persons collecting levies

180 Other charges not requiring to be prescribed

181 Fees, charges, and levies to constitute debt

182 Penalties for failure to pay fee, charge, or levy

183 Dispute does not suspend obligation to pay fee, charge, levy, or penalty

184 Levy regulations to be confirmed

Subpart 4Payment of statutory debt

185 Penalty for failure to pay statutory fees, etc

186 Waiver of penalty

187 Services may be withdrawn until debt paid

Subpart 5Offences

Infringement offences

188 Proceedings for infringement notices

189 Issue and cancellation of infringement notices

190 Form of infringement notice

191 Payment of infringement fees

Offences

192 Offence involving knowingly or recklessly endangering or harming

193 Offence involving knowingly or recklessly creating or increasing risk

194 Offence involving negligently endangering, harming, creating risk, or increasing risk

195 Offences involving intentionally defeating purpose of Act or deceiving in relation to documents or information

196 Offences involving documents or information

197 Offences involving intentionally defeating purpose of Act or deceiving in relation to identifying or representing food

198 Offences involving identifying or representing food

199 Offences involving intentionally defeating purpose of Act or deceiving in relation to sampling, testing, or evidence

200 Offences involving sampling, testing, or evidence

201 Offences involving intentionally defeating purpose of Act or deceiving in relation to statements

202 Offences involving statements

203 Offence involving knowingly or recklessly selling non-complying food

204 Offences involving knowingly or recklessly importing non-complying food

205 Offences involving imported food

206 Offence involving intentionally hindering or obstructing official

207 Offence involving threatening or assaulting official

208 Offence involving intentionally deceiving by pretending to be official

209 Offences involving publishing non-complying advertisement

209A Offences involving automated electronic system

210 Offence involving breaching or failing to carry out duty

211 Offence involving breaching or failing to comply with suspension, direction, or improvement notice

212 Offence involving breaching or failing to comply with order

212A Offence involving breaching or failing to comply with food standard, etc

213 Offence involving breaching or failing to comply with requirement

Liability for offences

214 Liability of body corporate

215 Liability of body corporate, principal, or individual

216 Liability of director or manager of body corporate

217 Parties to offences

218 Defences for liability arising under section 215 or 217

Laying information

219 Period within which information must be laid

Provisions about charging documents

219 Charging documents

Defences

220 Defence in prosecution for strict liability offence, except advertising offence

221 Defences in prosecution for advertising offence

222 Defences in prosecution for selling non-complying food

223 Defence in prosecution of body corporate, principal, or individual for action of director, agent, or employee

224 Defence in prosecution of importer, producer, processor and handler, manufacturing rights owner, or packer

225 Employees and agents have same defences

226 Prosecutor to be notified of defences

226A Standard of proof for establishing defence

Evidence

227 Evidence of requirement of this Act

228 Evidence of person’s documents

229 Evidence of testing

229A Evidence of office

Presumptions

230 Application of sections 231 to 234

231 Presumption as to contents and label

232 Presumption as to possession for sale

233 Presumption as to sample

234 Presumption as to electronic identification

Sentencing

235 Application of sections 236 to 240

236 Order to pay amount because of commercial gain

237 Order to pay expenses

238 Order to forfeit and dispose of food or food-related accessory

239 Order to withdraw material

240 Order to restrict or prohibit trading in food

241 Sentencing criteria

242 Fines or amounts to be paid to prosecuting territorial authority

Subpart 6Powers and enforcement

Appointments by chief executive

243 Appoint food safety officers

244 Suspend or cancel appointments of food safety officers

Directions by chief executive

245 Give general directions on functions, duties, or powers

246 Give directions on seized imported food or food-related accessory

247 Give directions to restrict or stop movement in urgent cases

248 Persons to whom directions may be given under sections 249 to 254

249 Give general directions to operators and other persons required to comply with Act

250 Give directions to complete and supply declarations

251 Give directions to impose movement or related controls

252 Give directions to recall food or food-related accessory

253 Give directions to manage food or food-related accessory

254 Give directions to publish statement

255 Supplementary provisions about directions under sections 249 to 254

256 Service of directions under sections 249 to 254

Statements by chief executive

257 Publish privileged statements

258 Give statement about compliance with New Zealand requirements

Approvals by chief executive

259 Approvals by chief executive

Information collection by chief executive

260 Require production of information for purpose of determining safety and suitability of food

261 Require production of information if reasonable belief that requirement of this Act has been breached

Powers of verifiers

262 Verifiers' rights of access and certain verifier powers

262A Recognised persons' rights of access

Powers and duties of food safety officers

262B Powers in sections 260 and 261 exercisable by food safety officers

263 Power to ask for assistance

264 Purposes of powers in sections 262B, 265 to 272, and 274 to 276

265 Powers to facilitate entry, search, and seizure

266 Information powers and evidence gathering

267 Powers of examination, identification, and rectification, and associated detention powers

267A Power to issue improvement notice

267B Review of improvement notice

268 Powers to take, purchase, and sample

269 Power to interrupt operations and give certain directions

270 Powers to seize, condemn, and require disposal

271 Power to restrict use of or close place

272 Other powers

273 Means of exercising powers in sections 265 to 272

274 Powers to enter

275 Power to enter without search warrant

276 Power to test samples of food or examples of food-related accessories

277 Duty to give notice of seizure and detention to owner or owner's agent if known and present

278 Duty to give notice of seizure and detention to owner or owner's agent if known but not present

279 Duty to give notice of seizure and detention if owner or owner's agent not known

280 Duties relating to imported consignments

281 Detaining food or food-related accessory seized

282 Exporting or returning imported food or food-related accessory that has been detained

283 Releasing food or food-related accessory that has been detained

284 Application to District Court for return of seized food or food-related accessory

285 District Court may order return of seized food or food-related accessory

286 Food or food-related accessory unable to be released

287 Reasonable belief by food safety officer

288 Matters may be completed by different food safety officer

Search warrants

289 What must be in application for search warrant

290 How application is made

289 Application for search warrant

291 Issue of search warrant

292 Who can execute search warrant

293 Use of copy of search warrant

294 Powers under search warrant

295 Persons assisting execution of search warrant

296 Duty to produce information when executing search warrant

297 When execution of search warrant completed

298 Duty to leave information after executing search warrant

295 Carrying out search powers

299 Disposal of property seized under search warrant

300 Retention of documents

Compliance orders

301 Meaning of compliance order

302 Application for compliance order

303 Notification of application

304 Right to be heard on application

305 Decision on application

306 Interim compliance orders

307 Form and content of interim compliance order or compliance order

308 Change or cancellation of interim compliance order or compliance order

309 Compliance with interim compliance order or compliance order

310 Appeals to High Court

311 Appeals to Court of Appeal or Supreme Court

312 Effect of appeal

313 Rules of court

Part 5
Miscellaneous provisions

Subpart 1Exemptions

Exemption from application of this Act generally

314 Exemption by Order in Council from application of this Act generally

315 When Minister may recommend exemption under section 314

Exemptions for certain exports

316 Exemption by Order in Council for certain exports

317 When Minister may recommend exemption under section 316

318 Exemption by chief executive

319 Relationship between sections 316 and 318 and Animal Products Act 1999

Other exemptions

320 Exemption for certain persons covered by Animal Products Act 1999

321 Exemption for certain persons covered by Wine Act 2003

Subpart 2Immunity, delegation, and review provisions

Protection from civil and criminal liability

322 Protection from civil and criminal liability

322A Immunity of food donors

Delegation

323 Chief executive may delegate

Review of decisions

324 Application of sections 325 to 330

325 Application for review

326 Requirements for application for review

327 Procedure for review of decision by chief executive or chief executive's delegate

328 Procedure for review of decision by relevant territorial authority

329 Effect of review

330 Reviewer may require payment of costs in review of decision by relevant territorial authority

330A Chief executive must enter outcome of review decisions in public register

Appeals against review decisions

330B Appeal to District Court against review decision

330C Procedure for appeal

Further appeals

330D Appeal to High Court on question of law

330E Further appeals to Court of Appeal or Supreme Court

330F Review decision to continue in force pending appeal

Subpart 3Information and consultation requirements

Collecting, keeping, and disclosing information

331 Collecting and keeping information

332 Disclosing information inside New Zealand: application of section 333

333 Disclosing information inside New Zealand: rules

334 Disclosing information outside New Zealand: rules

335 Disclosing information outside New Zealand: under agreement

336 Variation and review of agreement

337 Disclosing information outside New Zealand: urgent action required

Automated electronic systems

337A Arrangement for system

337B Effect of use of system

Notifying persons of information

338 Notification to Minister, chief executive, territorial authority, or food safety officer

339 Notification to other persons who assist in administration of Act

340 Notification to other persons

Consultation

341 Consultation: Minister’s powers

342 Consultation: chief executive’s powers

343 Consultation with Environmental Risk Management Authority

Subpart 4Regulations

Regulations about core provisions

344 Regulations: what they can apply to and what they can do

345 Regulations: how they apply to stock in trade

346 Regulations about standards in relation to food

347 Regulations about risk-based measures and related matters

348 Regulations about grading schemes

349 Regulations about approved documents, materials, or facilities, or persons or classes of persons

350 Regulations about imported food

350A Regulations about verification functions in relation to importers

351 Regulations about recognised agencies, persons, and classes of persons

352 Regulations about information

353 Regulations about offences

354 Regulations about administrative matters

Regulations about other matters

355 Regulations about definitions

356 Regulations for purposes of section 332

357 Regulations about other matters

Subpart 5Food standards

Adopted joint food standards

358 Purpose of sections 359 to 364

359 Minister may adopt joint food standards

360 Issue, notification, and availability of adopted joint food standards

361 Adopted joint food standard subject to disallowance

361 Application of Legislation Act 2012 to adopted joint food standard

362 Amendment and revocation of adopted joint food standards

363 Minister must not delegate power to adopt joint food standards

364 Proof of adopted joint food standards

Domestic food standards

365 Purpose of section 366

366 Minister may issue domestic food standards

Subpart 6Notices

Notices

367 Notices relating to general matters

367A Notices relating to specifications or requirements for specific matters

368 Notices: consultation

369 Notices: publication

369A Application of Legislation Act 2012 to certain notices

370 Power to issue emergency notice

371 Notification and duration of emergency notice

372 Emergency notice prevails

Subpart 7Transitional provisions

Preliminary

373 Overview of transitional provisions

374 Interpretation

375 Meaning of Act's introductory period

376 Meaning of authorised transition period

377 Regulations extending end date of Act's introductory period

378 Regulations specifying or extending end date of authorised transition period

Early commencement

378A Early commencement food safety officers

Pre-commencement

379 Pre-commencement legislative requirements: Food Act 1981 and regulations

380 Pre-commencement standards

381 Pre-commencement food

382 Pre-commencement consultation

383 Pre-commencement food safety officers

384 Pre-commencement offences

Transition to new requirements

385 New legislative requirements

386 Notices during authorised transition period

387 Statements about food produced or processed and handled under Food Act 1981

388 New food safety officers

Deemed food control plans

389 Pre-commencement registered food safety programme

390 Pre-commencement application for exemption under Food Act 1981

391 Deemed food control plans under sections 389 and 390

392 Duration of deemed food control plans under sections 389 and 390

Post-commencement status of food businesses not previously covered by food legislation

393 Food business now covered

Post-commencement status of persons

394 Approved auditors under Food Act 1981

395 Agencies managing approved auditors under Food Act 1981

396 Notices about approved auditors and agencies

396A Importers listed for purposes of Food Act 1981

Transitional regulations

397 Regulations about transitional matters

398 Regulations about cost recovery

399 Principles for purposes of section 398(3)

400 Consultation about proposed regulations

Notice requirements

401 Requirements for notices issued by chief executive

Subpart 8Miscellaneous

Public registers

402 Further provisions for public registers are in Schedule 5

Incorporation by reference

403 Material incorporated by reference

404 References to standard works

Other enactments

405 Relationship with local authority bylaws

405 Relationship with local authority bylaws

Consequential provisions

406 Consequential amendments and repeals and revocations

Schedule 1
Food sectors subject to food control plans

Schedule 2
Food sectors subject to national programmes

Schedule 3
Food sectors not required to operate under food control plan or national programme

Schedule 4
Miscellaneous provisions relating to registrations

Schedule 5
Public registers

Schedule 6
Material incorporated by reference

Schedule 7
Consequential amendments, repeals, and revocations


The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Food Act 2010.

2 Commencement
  • This Act comes into force on 1 July 2011.

2 Commencement
  • (1) This Act comes into force on a date appointed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made appointing different dates for different provisions and different purposes (including the appointment of 1 or more dates for the purpose of commencing the repeals effected by section 379(1A)).

    (2) Subsection (1) is subject to subsections (3) to (6).

    (3) The following provisions come into force on the day after the date on which this Act receives the Royal assent:

    • (a) sections 246 (but only as it relates to disposal upon recall under section 252), 250, 251 (except subsections (1)(a) and (8)), 252, 253(1)(h) and (i) and (2), 254, 255, 256, 257, and 260:

    • (b) sections 378A and 379(1).

    (4) Any other provision of this Act must be treated as if it were in force to the extent necessary for the operation of a provision to which subsection (3)(a) applies, including, without limitation,—

    • (a) section 211(1)(b) and (3) to (5); and

    • (b) section 213 (but only as it relates to a requirement under section 260); and

    • (c) any other provision that imposes an offence relating to a provision to which subsection (3)(a) applies; and

    • (d) sections 220, 322, and 323; and

    • (e) any other provision relating to the enforcement of obligations imposed under a power in a provision to which subsection (3)(a) applies, such as provisions for the gathering of evidence and the taking of proceedings for an offence.

    (5) Section 122B comes into force on 1 July 2016 or an earlier date appointed by the Governor-General by Order in Council.

    (6) Any provision of this Act (other than section 122B) that is not already in force on 1 March 2016 comes into force on that date.

Part 1
Preliminary provisions

Subpart 1Introduction

3 Overview
  • (1) This Act replaces the Food Act 1981.

    (2) This Part contains preliminary provisions that—

    • (a) state the purpose of this Act; and

    • (b) set out the application of this Act; and

    • (c) define certain terms used in this Act; and

    • (d) specify the principles for persons with regulatory roles under this Act and summarise what those roles are; and

    • (e) state the primary duty of persons who trade in food.

    • (d) state the primary duty of persons who trade in food; and

    • (e) specify the principles for persons with regulatory roles under this Act and summarise what those roles are.

    (3) Part 2 relates to risk-based measures, which are the main mechanisms under this Act for achieving the safety and suitability of food. In particular, it includes provisions that—

    • (a) provide for the classification of food sectors into 3 classes based on, among other things, the level of risk that they pose to public health; and

    • (b) specify which (if any) risk-based measure generally applies to food businesses in each of those 3 classes; and

    • (c) require certain persons who trade in food to operate under the risk-based measure that generally applies to the food sector that the person's food business is in, unless certain specified circumstances apply; and

    • (d) set out the nature, content, and effect of risk-based measures.

    (4) Part 3 contains provisions that—

    • (a) require the safety and suitability of food imported for the purpose of sale; and

    • (b) provide for the registration of importers of that food.

    (5) Part 4 contains provisions relating to recognition, the functions of territorial authorities, administration, and enforcement. In particular, it includes provisions that—

    • (a) provide for the recognition of agencies and persons for the purposes of this Act; and

    • (a) provide for the recognition of agencies, persons, and classes of persons for the purposes of this Act; and

    • (b) state the functions and duties of territorial authorities under this Act; and

    • (c) set out the principles for the recovery of the direct and indirect costs of administering this Act; and

    • (d) deal with enforcement matters, such as offences, penalties, evidentiary presumptions, the court's powers to make additional orders for effective enforcement, and the chief executive's powers to give directions.

    (6) Part 5 contains miscellaneous provisions, including provisions about exemptions from the application of this Act, delegation, review of decisions made by the chief executive or a person acting under the delegated authority of the chief executive, consultation, incorporation by reference, and transitional matters. It contains regulation-making powers that provide for, among other things, regulations about standards in relation to food, risk management tools risk-based measures, improving the safety and suitability of food, imported food, recognised agencies and recognised persons recognised agencies, persons, and classes of persons, information, offences, and administrative matters. It also contains provisions on the issuing of notices, including emergency notices.

    (7) Schedule 1 describes the food sectors that are generally subject to a food control plan.

    (8) Schedule 2 describes the food sectors that are generally subject to a national programme. A national programme is categorised into 3 levels (level 3 to 1) in descending order of risk.

    (9) Schedule 3 describes the food sectors that are generally subject to food handler guidance not required to operate under a food control plan or a national programme.

    (10) Schedule 4 sets out miscellaneous provisions relating to registrations and recognition under this Act.

    (11) Schedule 5 sets out provisions relating to the public registers that are required to be kept under this Act.

    (12) Schedule 6 sets out provisions relating to material incorporated by reference.

    (13) Schedule 7 sets out consequential amendments, repeals, and revocations.

    (14) This section is intended as a guide only.

4 Purpose
  • The purpose of this Act is to—

    • (a) restate and reform the law relating to how persons trade in food; and

    • (b) achieve the safety and suitability of food for sale; and

    • (ba) maintain confidence in New Zealand’s food safety regime; and

    • (c) provide for risk-based measures that—

      • (i) minimise and manage risks to public health; and

      • (ii) protect and promote public health; and

    • (d) provide certainty for food businesses in relation to how the requirements of this Act will affect their activities; and

    • (e) require persons who trade in food to take responsibility for the safety and suitability of that food.

5 Application of Act
  • (1) This Act applies to food for sale and food-related accessories.

    (2) This section must be read in conjunction with sections 314 and 315 (which contain provisions that allow the Governor-General, by Order in Council, to exempt certain things or certain classes of persons or operations from the application of all or any provisions of this Act).

    (3) To avoid doubt, this Act applies to—

    • (a) an animal product that is produced and processed under the Animal Products Act 1999 (whether the animal product is for sale on the domestic market or is to be exported), if that animal product is also a food; and

    • (b) wine that is produced and processed under the Wine Act 2003 (whether the wine is for sale on the domestic market or is to be exported), because wine is a food as defined in this Act.

    (4) Subsection (3) is subject to—

    • (a) sections 42 and 43; and

    • (b) sections 316 to 319; and

    • (c) sections 32 to 34 and 60B of the Animal Products Act 1999; and

    • (d) section 15A of the Wine Act 2003.

    (5) Despite subsection (3) and sections 320 and 321, if there is any inconsistency between the applicable requirements of this Act and those of the Animal Products Act 1999 or the Wine Act 2003 in relation to an animal product or wine referred to in that subsection or in those sections, the requirements of those Acts prevail.

5 Application of Act
  • This Act applies to food for sale and food-related accessories.

5A Relationship between this Act and Animal Products Act 1999 and Wine Act 2003
  • (1AA) The purpose of this section is to recognise the general equivalence of food safety regimes under this Act and the Animal Products Act 1999 and the Wine Act 2003 in terms of their ability to ensure the safety and suitability of any food to which they apply.

    (1) This section achieves its purpose by—

    • (a) clarifying the relationship between this Act and the Animal Products Act 1999 and the Wine Act 2003 by acknowledging that, in addition to this Act, the Animal Products Act 1999 and the Wine Act 2003 contain measures that manage the safety and suitability of any animal product or wine that is food within the meaning of this Act; and

    • (b) minimising any overlap between the food safety regime under this Act and the food safety regimes under the Animal Products Act 1999 and the Wine Act 2003.

    (2) This Act applies to—

    • (a) an animal product that is processed under the Animal Products Act 1999 (whether the animal product is for sale on the domestic market or is to be exported), if that animal product is also a food; and

    • (b) wine that is made under the Wine Act 2003 (whether the wine is for sale on the domestic market or is to be exported), because wine is a food as defined in this Act.

    (3) Subsection (2) is subject to exemptions that may be granted under this Act and, in particular, under—

    • (a) sections 314 and 315 (which allow any food or classes or descriptions of food, persons who trade in food, or operations or places in relation to any trade in food to be exempted from the application of all or any requirements of this Act):

    • (b) sections 316 to 318 (which allow for exemptions for certain exports):

    • (c) sections 320 and 321 (which allow certain persons covered by the Animal Products Act 1999 or the Wine Act 2003 to be exempted from the requirement to operate under an applicable risk-based measure).

    (4) The following provisions apply to manage any overlap between the food safety regime under this Act and the food safety regimes under the Animal Products Act 1999 and the Wine Act 2003:

    • (a) section 24A (which allows winemakers to apply for their winemaking operations to be included in a registered food control plan or a national programme); and

    • (b) sections 32 to 34 of the Animal Products Act 1999 (which provide for the relationship between the food safety regime under this Act and risk management programmes under the Animal Products Act 1999 by recognising the general equivalence of food control plans and risk management programmes); and

    • (c) sections 15A to 15C of the Wine Act 2003 (which provide for the relationship between the food safety regime under this Act and wine standards management plans).

    (5) If there is any conflict, duplication, or inconsistency between the requirements of this Act and the requirements of the Animal Products Act 1999 or the Wine Act 2003 in relation to an animal product or wine, the requirements of those other Acts prevail.

    (6) If there is any conflict, duplication, or inconsistency between a power or other form of authority conferred by or under the Animal Products Act 1999 or the Wine Act 2003 and a power or other form of authority conferred by or under this Act, the power or other form of authority conferred by or under those other Acts applies instead of the power or other form of authority conferred by or under this Act.

6 Act binds the Crown
  • This Act binds the Crown.

Subpart 2Interpretation

General

7 Interpretation
  • (1) In this Act, unless the context otherwise requires,—

    adopted joint food standard has the meaning given to it by section 359

    advertise means to use any form of communication (including selling or giving away any goods or services for the purposes of any trade or business, but excluding selling or giving away any goods or services for any other purpose and excluding communications of personal opinion made by a natural person for no commercial gain) to the public or a section of the public in relation to any—

    • (a) goods or services; or

    • (b) brand of goods or services; or

    • (c) person who provides goods or services

    appropriate registration authority,—

    • (a) in subpart 2 of Part 2, has the meaning given to it by section 48:

    • (b) in subpart 3 of Part 2, has the meaning given to it by section 79:

    approved class of persons means a class of persons approved by the chief executive under section 259

    approved document, material, or facility means a document, material, or facility approved by the chief executive under section 259

    approved person

    • (a) means a person approved by the chief executive under section 259; and

    • (b) includes an approved class of persons

    Australia New Zealand Food Standards Code means the current joint food standards code established under the Australia-New Zealand Joint Food Standards Agreement

    Australia–New Zealand Joint Food Standards Agreement

    • (a) means the Agreement Between the Government of Australia and the Government of New Zealand Concerning a Joint Food Standards System, signed at Wellington on the 5th day of December 1995, as may be revised or amended from time to time; and

    • (b) includes an agreement that replaces the agreement referred to in paragraph (a)

    authorised place

    • (a) means a place where a food safety officer has authorised any imported food to be held for the purpose of inspection, verification, storage, treatment, processing and handling, or destruction; and

    • (b) includes—

      • (i) a transitional facility or biosecurity control area within the meaning of the Biosecurity Act 1993; and

      • (ii) a Customs place or Customs controlled area within the meaning of the Customs and Excise Act 1996

    automated electronic system means a system that is the subject of an arrangement under section 337A

    bulk cargo container

    • (a) includes an article of transport equipment that is a lift van, movable tank, or other similar structure and that—

      • (i) is of a permanent character and accordingly strong enough to be suitable for repeated use; and

      • (ii) is specially designed to facilitate the carriage of goods by 1 or more modes of transport, without immediate repacking; and

      • (iii) is fitted with devices permitting its ready handling and its transfer from 1 mode of transport to another; and

      • (iv) has an internal volume of 1 cubic metre or more; and

    • (b) includes the normal accessories and equipment of the container, when imported with the container and used exclusively with it; but

    • (c) does not include any craft, vehicle, or ordinary packing case, crate, box, or other similar article used for packing

    chief executive means the chief executive of the Ministry

    combined district means the area comprising the districts of territorial authorities that have combined, in accordance with section 146(3), for the purpose of performing their function as a registration authority

    corrective action includes an action (for example, the recall of food) to—

    • (a) restore control; or

    • (b) identify any affected ingredient or food, and ensure its safety and suitability or manage its disposal; or

    • (c) prevent recurrence of the loss of control

    Crown entity has the meaning given to it by section 7(1) of the Crown Entities Act 2004

    Customs or the Customs has the meaning given to it the term the Customs by section 2(1) of the Customs and Excise Act 1996

    district means a district of a territorial authority

    domestic food standard has the meaning given to it by section 366

    entertainment includes any social gathering, amusement, exhibition, performance, game, sport, or trial of skill

    export, in relation to a thing,—

    • (a) means—

      • (i) to send the thing, or cause the thing to be sent, from within New Zealand territory to outside that territory:

      • (ii) to post, within the meaning of section 2(2) of the Postal Services Act 1998, to an address overseas (regardless of whether or not delivery is completed or the addressee obtains possession); and

    • (b) includes—

      • (i) to send the thing or cause the thing to be sent to, and for it to arrive at, the place of departure for loading on board a ship, an aircraft, or any other means of conveyance, with the intention of sending it from within New Zealand territory:

      • (ii) to send the thing or cause the thing to be sent to, and for it to reach, an agent for the purpose of being held before sending it from within New Zealand territory

    financial year means a period of 12 months beginning on 1 July in each year and ending on 30 June in the following year

    food has the meaning given to it by section 8

    food business has the meaning given to it by section 9

    food control plan means a plan of a kind described in section 28

    food handler guidance means guidance of a kind described in section 92(1)

    food-related accessory

    • (a) means any thing that is used, or represented for use, in or for the production, processing and handling, or sale, or consumption of food; and

    • (b) includes a package or anything that is enclosed with, attached to, in contact with, or contained in food

    food safety officer means an officer appointed under section 243(1)

    food safety regime

    • (a) means the system of regulatory controls relating to trading in food; and

    • (b) includes—

      • (i) provisions contained in this Act or any other enactment; and

      • (ii) risk-based measures; and

    • (c) also includes measures for monitoring—

      • (i) the effectiveness of those provisions:

      • (ii) the effectiveness of risk-based measures:

      • (iii) the performance of all persons who trade in food

    food sector means a group of 2 or more food businesses

    good operating practice means procedures relating to practices that—

    • (a) are required to achieve the safety and suitability of the food to which they relate; and

    • (b) are appropriate to the food business to which they relate

    hazard means a biological, chemical, or physical agent that—

    • (a) is in food or has the potential to be in food, or is a condition of food, or has the potential to affect the condition of food; and

    • (b) causes or could cause an adverse or injurious effect on human life or public health

    import, in relation to a thing, means to bring the thing, or cause the thing to be brought, into New Zealand territory from outside that territory

    importer

    • (a) means a person who imports any food; and

    • (b) includes—

      • (i) the New Zealand agent or representative of a person who is based overseas and who has arranged the importation of the imported food; and

      • (ii) the consignee of the imported food; and

      • (iii) the person who is or becomes the owner of, or entitled to the possession of, or beneficially interested in, the imported food on or at any time after its importation and before it has ceased to be subject to the control of the Customs

    • (b) includes a person for whom food is imported; and

    • (c) includes a New Zealand-based agent who—

      • (i) has an overseas-based person as a principal; and

      • (ii) arranges the importation of food for the principal; and

    • (d) includes a New Zealand-based representative who—

      • (i) represents an overseas-based person; and

      • (ii) arranges the importation of food for the person; and

    • (e) includes the New Zealand-based consignee of imported food; and

    • (f) includes a person who is or becomes the owner of, or entitled to the possession of, or beneficially interested in, imported food on or at any time after its importation and before it has ceased to be subject to the control of Customs

    infringement fee, in relation to an infringement offence, means the amount prescribed by regulations made under section 353 to be payable for the offence

    infringement offence means an offence that is declared stated, by regulations made under section 353, to be an infringement offence for the purposes of this Act

    intended use, in relation to food, means the use for the food that is specifically stated, or could reasonably be presumed to be intended, taking into account the food's nature, labelling, packaging, and identification

    issuing officer means a District Court Judge, Community Magistrate, Justice of the Peace, or Registrar to whom an application for a search warrant is made under section 290

    issuing officer, except in section 267B, has the meaning given to it by section 3(1) of the Search and Surveillance Act 2012

    joint food standard means a food standard or part of a food standard that—

    • (a) has been developed under the Australia–New Zealand Joint Food Standards Agreement for inclusion in the Australia New Zealand Food Standards Code; and

    • (b) is included in the Australia New Zealand Food Standards Code; and

    • (c) has been or is intended to be given the force of law—

      • (i) in Australia and New Zealand; or

      • (ii) in New Zealand only

    label includes any written, pictorial, or other descriptive matter that—

    • (a) relates to any food or any package containing food; and

    • (b) appears on, is attached to, or is associated with that food or package

    local authority means a regional council or territorial authority

    marae includes the area of land on which all buildings such as wharenui (meeting house), wharekai (dining room), ablution blocks, and any other associated buildings are situated

    Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of this Act

    Ministry means the department of State that, with the authority of the Prime Minister, is responsible for the administration of this Act

    monitoring programme means a programme of a kind described in section 86

    movement includes import, export, and transport

    national outcomes means the national outcomes issued by the Minister under section 148

    national programme means a programme of a kind described in section 71

    notice of recognition means, as applicable,—

    • (a) a notice of recognition given to a recognised agency or a recognised person in accordance with section 137(1)(b); or

    • (b) a notification given to a recognised class in accordance with section 137(1)(c)(i)

    official template or model, in relation to a food control plan, means a template or model—

    • (a) issued by the chief executive under section 32:

    • (b) approved by the chief executive under section 33

    operate under a food control plan or operate under a registered food control plan means to operate under the plan, whether as the operator of the plan or as a food business to which the plan applies

    operate under a national programme means to operate under the national programme as a food business to which the programme applies

    operator of a food business means the owner or other person in control of the business

    operator of a food control plan or operator of a registered food control plan means,—

    • (a) if the plan applies to only 1 food business, the operator of the food business; or

    • (b) if the plan applies to more than 1 food business, the person responsible for the plan

    operator verification means a process to ensure that internal practices, procedures, and activities comply with the applicable requirements of this Act

    package

    • (a) includes anything in or by which food for carriage or for sale may be wholly or partly encased, covered, enclosed, contained, or packed; and, for food sold or carried or intended for sale or carriage in more than 1 package, includes every such package; but

    • (b) does not include any of the following:

      • (i) bulk cargo containers:

      • (ii) pallet overwraps:

      • (iii) crates and packaging that do not obscure labels on the food:

      • (iv) craft and vehicles

    permissible functions and activities means verification functions and activities and other specialist functions and activities that may be carried out by a recognised agency, recognised person, or recognised class of persons for the purposes of this Act, and includes—

    • (a) verification functions and activities in relation to risk-based measures:

    • (b) other verification functions and activities:

    • (c) the provision of independent evaluations of the validity of food control plans for the purposes of section 49(3)(b)

    place

    • (a) includes—

      • (i) any premises:

      • (ii) a building:

      • (iii) a temporary or permanent structure:

      • (iv) a stall:

      • (v) a conveyance:

      • (vi) a craft:

      • (vii) a vehicle:

      • (viii) a bulk cargo container; and

    • (b) also includes any land, water, or other area where food is produced or may be present

    processing and handling has the meaning given to it by section 10

    processor means, in relation to food for sale, a person who processes and handles the food

    producer means a person who produces food for sale

    production, in relation to anything used as food or from which food is derived, includes farming, raising, growing, harvesting, extracting, and gathering

    public health means the health of—

    • (a) all the people of New Zealand; or

    • (b) a community or section of the people of New Zealand

    recognised agency

    • (a) means a person or body who is recognised under section 126; and

    • (b) includes a person or body who is treated as a recognised agency under section 127

    recognised person

    • (a) means a person or class of persons that is recognised under section 128; and

    • (b) includes a person who is treated as a recognised person under section 129

    recognised agency means—

    • (a) a person who is recognised by the chief executive under section 124 or 125; and

    • (b) a group of persons who are recognised by the chief executive under section 125

    recognised class means a class of natural persons that is recognised by the chief executive under section 130

    recognised person means a natural person who—

    • (a) is recognised by the chief executive under section 128 or 129; or

    • (b) is a member of a recognised class, but only—

      • (i) to the extent that the person carries out the specified functions and activities for which the class is recognised; and

      • (ii) while the person continues to hold the qualifications or meet the other membership criteria according to which the class is defined in the relevant public register in accordance with section 137(1)(a)

    regional council means a regional council within the meaning of the Local Government Act 2002

    registered importer means an importer registered under section 109

    registration authority means the chief executive or, as the case may be, the relevant territorial authority

    relevant appointed date for any provision of this Act means the date appointed for the purpose of that provision under subsection (3)

    relevant public register means, as the case may be,—

    • (a) any 1 of the public registers of food control plans kept under clause 2 of Schedule 5:

    • (b) the public register of food businesses subject to a national programme kept under clause 5 of that schedule:

    • (c) the public register of recognised agencies and recognised persons kept under clause 8 of that schedule:

    • (c) the public register of recognised agencies, recognised persons, and recognised classes kept under clause 8 of that schedule:

    • (d) the public register of importers kept under clause 11 of that schedule:

    • (e) the public register of review decisions kept under clause 13A of that schedule

    relevant territorial authority has the meaning given to it by section 48(2)

    requirements of this Act includes—

    • (a) a requirement of or under this Act:

    • (b) a requirement of a regulation under this Act:

    • (c) a requirement of an adopted joint food standard or of a domestic food standard:

    • (d) a requirement of a notice under this Act:

    • (e) a requirement of directions under this Act:

    • (f) a condition imposed under any of sections 42(5)(c), 43(5)(c), 56, 95(4)(d), 134, 138(3)(a), 259(6) and clauses 4(4)(e) and 9 of Schedule 4 by or under this Act or a regulation made under this Act

    risk-based measure means any of the following:

    • (a) a food control plan:

    • (b) a national programme:

    • (c) a monitoring programme

    • (d) food handler guidance

    risk management tool

    • (a) means any of the following:

      • (i) a food control plan:

      • (ii) a national programme:

      • (iii) a monitoring programme; but

    • (b) does not include food handler guidance

    safety and suitability has the meaning given to it by section 11

    safety and suitability have the meanings given to them by section 11

    sale has the meaning given to it by section 12

    specified conviction

    • (a) means—

      • (i) a conviction for an offence against this Act or the Food Act 1981; or

      • (ii) a conviction (whether in New Zealand or in another country) for any offence relating to fraud or dishonesty; or

      • (iii) a conviction (whether in New Zealand or in another country) for any offence relating to management control or business activities in respect of businesses of a kind (whether in New Zealand or in another country) that—

        • (A) are regulated under this Act or any other Act administered by the Ministry; or

        • (B) are subject to an overseas food safety regime; and

    • (b) for the purposes only of section 107(2)(a), includes a conviction (whether in New Zealand or in another country) for any offence relating to trading in food; but

    • (c) for the purposes only of section 128(4)(b), does not include a conviction of the kind described in paragraph (a)(ii)

    specified functions and activities means the permissible functions and activities that are specified by the chief executive in a notice of recognition in accordance with section 137(2)(a) as functions and activities that—

    • (a) a recognised agency is responsible for managing and carrying out; or

    • (b) a recognised person may carry out; or

    • (c) persons who are members of a recognised class may carry out

    template or model, in relation to a food control plan, means a template or model—

    • (a) issued by the chief executive under section 32:

    • (b) approved by the chief executive under section 33

    territorial authority means a territorial authority within the meaning of the Local Government Act 2002

    trade, in relation to food or a food-related accessory, means any 1 or more of the following, as the case may be:

    • (a) to import food or a food-related accessory for the purpose of sale:

    • (b) to produce food or a food-related accessory for the purpose of sale:

    • (c) to process and handle food or a food-related accessory for the purpose of sale:

    • (d) to sell food or a food-related accessory

    verification includes the application of methods, procedures, tests, and other checks to confirm ongoing—

    • (a) compliance with the applicable requirements of this Act:

    • (b) compliance of a food business with a risk management tool risk-based measure:

    • (c) applicability of a risk management tool risk-based measure to the operations of a food business:

    • (d) effectiveness of a risk management tool risk-based measure

    verification agency—

    • (a) means an agency recognised under section 126 for the purpose of being responsible for managing and carrying out verification; and

    • (b) includes an entity or a person who is treated as a verification agency under section 127

    verifier means—

    • (a) a person recognised under section 128 as suitable to carry out verification; and

    • (b) includes an individual who is treated as a verifier under section 129

    verification agency means a recognised agency whose specified functions and activities include managing and carrying out verification functions and activities

    verifier means a recognised person whose specified functions and activities include carrying out verification functions and activities

    written or in writing means printed, typewritten, or otherwise visibly represented, copied, or reproduced, including by fax, email, or other electronic means.

    (2) To avoid doubt, terms and expressions used, but not defined, in the Australia New Zealand Food Standards Code have the same meaning as in this Act.

    (3) The Governor-General may, by Order in Council, specify the relevant appointed date for the purposes of any provision of this Act for which an appointed date is required.

Meaning of food

8 Meaning of food
  • (1) In this Act, unless the context otherwise requires, food

    • (a) means anything that is used, capable of being used, or represented as being for use, for human consumption (whether raw, prepared, or partly prepared); and

    • (b) includes—

      • (i) plants; and

      • (i) seeds, plants, or plant material intended for human consumption, including seeds that are intended to be sprouted and consumed as sprouts, but not other seeds, plants, or plant material intended for planting; and

      • (ii) live animals intended for human consumption at the place of purchase; and

      • (iii) live animals intended for human consumption that are sold in retail premises; and

      • (iv) any ingredient or nutrient or other constituent of any food or drink, whether that ingredient or nutrient or other constituent is consumed or represented for consumption on its own by humans, or is used in the preparation of, or mixed with or added to, any food or drink; and

      • (v) anything that is or is intended to be mixed with or added to any food or drink; and

      • (vi) chewing gum, and any ingredient of chewing gum, and anything that is or is intended to be mixed with or added to chewing gum; and

      • (vii) anything that is declared by the Governor-General, by Order in Council made under section 355, to be food for the purposes of this Act; but

    • (c) does not include—

      • (i) any tobacco; or

      • (ii) any cosmetics; or

      • (iii) any substances used only as medicines (within the meaning of the Medicines Act 1981), any controlled drugs (within the meaning of the Misuse of Drugs Act 1975), or any restricted substances (within the meaning of the Misuse of Drugs Amendment Act 2005) or any psychoactive substance (within the meaning of the Psychoactive Substances Act 2013); or

      • (iv) any cookware and related products; or

      • (v) any packaging (except edible packaging).

      • (iv) any inedible food-related accessory; or

      • (v) anything that is declared by the Governor-General, by Order in Council made under section 355, not to be food for the purposes of this Act.

    (2) To avoid doubt, neither subsection (1)(b)(iv) nor (v) requires any ingredient, nutrient, or other constituent of any food or drink or anything that is or is intended to be mixed with or added to any food or drink to comply, on its own, with the applicable requirements of this Act that specifically relate to food in its final consumable form.

    (3) However, the food in its final consumable form must still comply with the applicable requirements of this Act.

    (4) In this section, animal has the meaning given to it by section 4(1) of the Animal Products Act 1999.

Meaning of food business

9 Meaning of food business
  • In this Act, unless the context otherwise requires, food business

    • (a) means a business, activity, or undertaking that trades in food (whether in whole or in part); and

    • (b) includes a business, activity, or undertaking that—

      • (i) transports or stores food; or

      • (ii) sells food on the Internet; or

      • (iii) provides, for reward, premises (including mobile premises) or services in connection with or for the purpose of trading in food (for example, an event organiser, an organiser of a market at which food is sold, or a lessor); or

      • (iv) is declared by the Governor-General, by Order in Council made under section 355, to be a food business for the purposes of this Act; but

    • (c) does not include a business, activity, or undertaking that

      • (i) carries on any other business besides merely because it carries on a business other than trading in food and, in the course of which doing so, acts as an intermediary between persons who trade in food by providing, for reward, premises a place (including mobile premises) or services (for example, an Internet service provider or an auction site on the Internet); or

      • (ii) trades exclusively in food-related accessories; or

      • (iii) lets for hire any equipment (such as marquees, tables, and chairs); or

      • (iv) that is declared by the Governor-General, by Order in Council made under section 355, not to be a food business for the purposes of this Act.

Meaning of processing and handling

10 Meaning of processing and handling
  • In this Act, unless the context otherwise requires, processing and handling, in relation to food for sale, includes any 1 or more of the following:

    • (a) preparing the food:

    • (b) manufacturing the food:

    • (c) packing the food:

    • (ca) labelling the food:

    • (d) transporting the food:

    • (e) storing the food:

    • (f) displaying the food:

    • (g) serving the food.

Meaning of safety and suitability

11 Meaning of safety and suitability
  • (1) In this Act, unless the context otherwise requires, safety and suitability, in relation to food, have the meanings set out in subsections (2) and (3) respectively.

    (2) Safety means a condition in which food, in terms of its intended use, is unlikely to cause or lead to illness or injury to human life or public health.

    • (a) means a condition in which food, in terms of its intended use, is unlikely to cause or lead to illness or injury to human life or public health; and

    • (b) includes a condition in which hazards are identified, controlled, managed, eliminated, or minimised.

    (3) Suitability means a condition in which the matters specified in subsection (4) are appropriate to food in terms of its intended use.

    (3) Suitability means a condition in which the matters specified in—

    • (a) subsection (4) are appropriate to food in terms of its intended use; and

    • (b) subsection (5) do not apply.

    (4) Those The matters referred to in subsection (3)(a)

    • (a) include the composition, labelling, identification, and condition of the food; but

    • (b) do not include—

      • (i) matters that are directly related to the food’s safety; or

      • (ii) matters of quality or presentation of the food that relate to a purely commercial decision by the person trading in the food.

    (5) An example of food that is unsuitable is food that—

    • (a) is in a condition that is offensive or is so perished as to affect its intended use; or

    • (b) contains, has attached to it or enclosed with it, or is in contact with any thing—

      • (i) that is offensive; or

      • (ii) that is so perished as to affect the food's intended use; or

      • (iii) the presence of which would be unexpected and unreasonable in that type of food.

    (6) Safety and suitability and safe and suitable, in relation to food, have meanings corresponding to the definition of safety set out in subsection (2) and the definition of suitability set out in subsection (3).

    (7) A reference to the safety and suitability of food or to safe and suitable food is a reference to food that complies with all applicable requirements of this Act.

    (8) Subsections (6) and (7) are to avoid doubt and do not limit the Interpretation Act 1999.

    (5) Food is unsuitable if it—

    • (a) is in a condition that is offensive:

    • (b) is damaged, deteriorated, or perished to the extent of affecting its reasonable intended use:

    • (c) contains, or has attached to it or enclosed with it, any damaged, deteriorated, perished, or contaminated substance or thing to the extent of affecting its reasonable intended use:

    • (d) contains a biological or chemical agent, or other substance or thing, that is foreign to the nature of the food and the presence of which would be unexpected and unreasonable in food prepared or packed for sale in accordance with good trade practice:

    • (e) has packaging that is damaged, deteriorated, perished, or contaminated to the extent of affecting the food's reasonable intended use.

    (6) Food is not unsafe or unsuitable merely because—

    • (a) any part of the community objects to it on moral, ethical, cultural, spiritual, or religious grounds; or

    • (b) any person objects to it because of personal preference; or

    • (c) its consumption in inappropriate quantities may damage a person's health; or

    • (d) its presence or consumption is unhealthy for any person who has an allergy or other personal health condition.

Meaning of sale

12 Meaning of sale
  • (1) In this Act, unless the context otherwise requires, sale, in relation to food,—

    • (a) means selling food for processing and handling or for human consumption; and

    • (aa) includes reselling food for processing and handling or for human consumption; and

    • (b) includes the following activities relating to food for human consumption:

      • (i) reselling food for processing and handling or for human consumption; and

      • (ii) offering food for sale or attempting to sell food, or receiving or having food in possession for sale, or exposing food for sale, or sending or delivering food for sale, or causing or permitting food to be sold, offered for sale, or exposed for sale; and:

      • (iii) bartering food; and:

      • (iv) selling, or offering to sell, any thing of which any food forms a part; and:

      • (v) supplying food, together with any accommodation, service, or entertainment, as part of an inclusive charge; and:

      • (vi) supplying food in exchange for payment or in relation to which payment is to be made in a shop, hotel, restaurant, at a stall, in or on a craft or vehicle, or or restaurant, at a stall, in or on a craft or vehicle, or in any other place; and:

      • (via) supplying food to an employee or other person in accordance with an employment agreement or an agreement for services:

      • (vii) for the purpose of advertisement or to promote any trade or business, giving away food or, whether or not on payment of money, offering food as a prize or reward to the public, whether on payment of money or not, or giving away food; and:

      • (viii) exporting food; and:

      • (ix) every other method of disposition of food for valuable consideration; but

    • (c) does not include—

      • (i) exchanging food for food or other goods or services as part of a personal relationship between individuals that is not commercial in nature; or

      • (ii) supplying food together with accommodation to a person residing at a private dwelling or farm in exchange for services or labour by the person; or

      • (iii) supplying food together with accommodation to a person residing for more than 2 weeks at a private dwelling or farm in exchange for payment; or

      • (iv) supplying drinking water by network reticulation to the point of supply of any dwellinghouse or commercial premises.

    (2) The sale, offer for sale, or exposure for sale of any food is to be treated, unless the contrary is proved, as a sale, an offer for sale, or an exposure for sale of the food for human consumption.

    (3) The sale of any food for the purpose of being mixed with any other food is to be treated, unless the contrary is proved, as a sale if the bulk or product produced by the mixing, or any part of the bulk or product, is intended to be sold.

    (4) The supply of food by or on behalf of the Crown that is funded directly by the Crown for the purpose (whether in whole or in part), or that is funded by any other means, is to be treated as a sale of the food, unless an enactment provides otherwise.

    (4) The supply of food by or on behalf of the Crown or a Crown entity to a person who is in the custody or care of the Crown or the Crown entity is to be treated as a sale of the food, unless an enactment provides otherwise.

    Compare: 1981 No 45 s 4(1)–(5), (9)

Subpart 2APrimary duty of persons who trade in food

12A Primary duty of persons who trade in food
  • A person who trades in food must ensure that it is safe and suitable.

Subpart 3Regulatory roles

Principles for persons with regulatory roles under this Act

13 Principles governing relationships between Minister, chief executive, and territorial authorities
  • In achieving the purpose of this Act, the Minister, the chief executive, and all territorial authorities must take into account the following principles:

    • (a) the need to develop and maintain productive working relationships and enhanced co-operation among themselves; and

    • (b) the need for a co-ordinated and aligned approach among themselves in fulfilling their respective roles and responsibilities under this Act.

14 Principles to be applied in performing functions or duties, or exercising powers, under this Act
  • (1) In performing functions or duties, or exercising powers, under this Act (either individually or collectively), the Minister, the chief executive, and all territorial authorities must take into account have regard to the following principles to the extent that they are relevant to those functions, duties, or powers:

    • (a) the need to achieve the safety and suitability of food:

    • (b) the need to require persons who operate food businesses or otherwise trade in food to take responsibility for the safety and suitability of food:

    • (c) the need to promote standards and control mechanisms that are, as far as practicable, risk-based and science-based:

    • (d) the need for efficiency and to minimise compliance costs:

    • (d) the need to minimise compliance costs for food businesses and, in particular, for food businesses that operate under a private or industry programme that achieves the purpose of this Act:

    • (e) the importance of ensuring that regulatory requirements are applied consistently and fairly across sectors and groups in relation to factors such as risk, including, without limitation,—

      • (i) the risks that are inherent in the type of food produced:

      • (ii) the risks that may arise from the processing and handling of food:

      • (iii) the intended use of the food, and whether it is intended to be consumed by vulnerable populations:

      • (iv) the scale of the operations of food businesses within the sector or group, and the extent of distribution of the food in which they trade:

    • (f) the importance of providing services in a co-ordinated and coherent manner as far as practicable.

    (2) If there is a conflict in any case between the need to achieve the safety of food and any other principle in subsection (1), greater weight must be given to the need to achieve the safety of food.

Outline of regulatory roles under this Act

15 Role of Minister
  • (1) The Minister has the functions, duties, and powers given to him or her under this Act.

    (2) The Minister has a role in the food safety regime that includes, without limitation,—

    • (a) for the purposes of this Act, issuing national outcomes in relation to the performance by territorial authorities of their functions and duties, or the exercise of their powers, under this Act; and

    • (b) recommending the making of regulations, including regulations that—

      • (i) amend Schedules 1 to 3:

      • (ii) state the scope and purpose of national programmes and prescribe other matters relating to national programmes:

      • (iii) impose national programmes:

      • (iv) prescribe fees and charges for the purposes of the cost recovery provisions in subpart 3 of Part 4:

      • (v) impose levies for the purposes of those cost recovery provisions:

      • (vi) provide for exemptions, waivers, and refunds in relation to those levies:

      • (vii) exempt persons from the application of this Act generally:

      • (viii) exempt food to be exported from certain requirements of this Act:

      • (ix) declare anything to be or not to be food for the purposes of this Act:

      • (x) declare a business to be or not to be a food business anything to be or not to be a food business for the purposes of this Act:

      • (xi) declare any Act to be an Act for the purposes of section 332(3):

      • (xii) declare any person to be a person for the purposes of section 332(4); and

    • (c) adopting joint food standards; and

    • (d) issuing domestic food standards; and

    • (e) appointing persons to conduct reviews of certain decisions made by the chief executive.

16 Role of chief executive
  • (1) The chief executive has the functions, duties, and powers given to him or her under this Act.

    (2) The chief executive has a role in the food safety regime that includes, without limitation,—

    • (a) providing advice to territorial authorities on the performance of their functions and duties, or the exercise of their powers, under this Act to ensure that the purpose of this Act is achieved; and

    • (b) providing information to the food industry and the public on matters relating to the safety and suitability of food; and

    • (c) implementing, managing, monitoring, and auditing the risk-based measures for the safety and suitability of food; and

    • (d) performing the function of a registration authority; and

    • (e) for the safety and suitability of food, developing standards and implementing those standards, any adopted joint food standards, and any domestic food standards; and

    • (f) establishing and monitoring national outcomes, performance criteria, standards, and other requirements that must be met by territorial authorities, agencies, and persons who perform functions or duties, and exercise powers, under this Act; and

    • (g) implementing, managing, and monitoring the food safety regime for imported food; and

    • (h) dealing with applications for registration by importers; and

    • (i) establishing and maintaining the public registers; and

    • (j) monitoring compliance with the applicable requirements of this Act; and

    • (k) monitoring and implementing the enforcement system under this Act and working collaboratively with territorial authorities and other regulatory bodies; and

    • (l) co-ordinating the response to emergencies that may undermine the purpose of this Act; and

    • (m) conducting, on application, reviews of certain decisions made by relevant territorial authorities or designating the persons to conduct those reviews; and

    • (n) conducting, on application, reviews of certain decisions made by persons acting under his or her delegated authority; and

    • (o) carrying out any functions that are incidental and related to, or consequential upon, the roles set out in paragraphs (a) to (n).

17 Role of territorial authorities
  • (1) A territorial authority has the functions, duties, and powers given to it under this Act.

    (2) A territorial authority has a role in the food safety regime that includes, without limitation,—

    • (a) delivering services that are needed to achieve the purpose of this Act, including the provision of advice and the dissemination of information on matters relating to the safety and suitability of food; and

    • (b) facilitating the administration and performance of functions and activities that support the role of the chief executive under this Act; and

    • (c) contributing to the implementation and delivery of risk-based measures for the safety and suitability of food; and

    • (d) performing the function of a registration authority; and

    • (e) carrying out enforcement and other regulatory responsibilities under this Act in respect of its district; and

    • (f) carrying out the role of a recognised agency, if so recognised under this Act; and

    • (g) carrying out any functions that are incidental and related to, or consequential upon, the roles set out in paragraphs (a) to (f).

Subpart 4Primary duty of persons who trade in food

18 Primary duty of persons who trade in food
  • A person who trades in food must ensure that it is safe and suitable.

Part 2
Risk-based measures

Subpart 1General

Preliminary

19 Overview of this Part
  • (1) This Part contains provisions relating to risk-based measures, which are the main means under this Act for ensuring food businesses achieve safe and suitable food.

    (2) This Part—

    • (a) classifies food sectors into 3 risk classes based on, among other things, the level of risk that their activities pose to public health and assigns a risk-based measure that generally applies to food businesses in each of those classes in a class where appropriate; and

    • (b) provides, in Schedule 1, a description of food sectors that are generally subject to a food control plan; and

    • (c) categorises national programmes into 3 levels based on, among other things, the risks involved and provides, in Schedule 2, a description of food sectors that are generally subject, in descending order of risk, to a level 3, level 2, or level 1 national programme; and

    • (d) provides, in Schedule 3, a description of food sectors that are generally subject to food handler guidance not required to operate under a food control plan or a national programme; and

    • (e) specifies which risk-based measure generally applies if a food sector is not specified in any of Schedule 1, 2, or 3 Schedules 1 to 3 or if a food sector is described in more than 1 of those schedules; and

    • (f) requires every a person who trades in food and whose food business is in a food sector to which a risk-based measure applies to operate the person's food business under the that risk-based measure that generally applies to the food sector that the food business is in, unless the person is exempted from that requirement under the provisions of this Part; and

    • (g) sets out requirements about the nature, content, and effect of a food control plan, national programme, and food handler guidance and a national programme; and

    • (h) sets out the circumstances in which a monitoring programme may be imposed as an additional measure to, or as a replacement measure for, a food control plan, national programme, or food handler guidance.

    (3) This Part also contains provisions that exempt or enable the exemption of persons, groups of persons, or food businesses from operating under food control plans or national programmes (for example, sections 94 and 95 26B to 26D).

Classification of food sectors

20 Classification of food sectors for purpose of assigning applicable risk-based measures
  • (1) The classification of food sectors under this Part—

    • (a) is based on, among other things, the level of risk that their activities pose to public health in terms of the safety and suitability of food; and

    • (b) is for the purpose of assigning a risk-based measure that generally applies to food businesses in those food sectors or for identifying those food sectors to which no risk-based measure generally applies.

    (2) Accordingly, Schedules 1 to 3

    • (a) classify food sectors into 3 risk-based classes; and

    • (b) assign a risk-based measure that generally applies to food businesses in each of those 3 risk-based classes according to the principles set out in subsection (3).

    (2) Accordingly, Schedules 1 to 3 classify food sectors into 3 risk-based classes in accordance with the principles set out in subsection (3).

    (3) The principles referred to in subsection (2) are as follows:

    • (a) food sectors that generally pose a high level of risk to public health are classified in Schedule 1 and food businesses in those food sectors must operate under a food control plan:

    • (b) food sectors that generally pose a medium or medium-to-low level of risk to public health are classified in Schedule 2 and—

      • (i) food businesses in food sectors classified in Part 2 of that schedule must operate under a level 3 national programme:

      • (ii) food businesses in food sectors classified in Part 3 of that schedule must operate under a level 2 national programme:

      • (iii) food businesses in food sectors classified in Part 4 of that schedule must operate under a level 1 national programme:

    • (c) food sectors that generally pose a low level of risk to public health are classified in Schedule 3 and food businesses in those food sectors must operate under food handler guidance are not required to operate under a food control plan or a national programme.

    (4) The levels of national programme specified in subsection (3)(b) are listed in descending order of risk.

    (5) This section is subject to sections 23, 24, and 26.

21 Power to amend Schedules 1 to 3 by Order in Council
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations to amend Schedule 1, 2, or 3 by doing any 1 or more of the following to any 1 or more of those schedules:

    • (a) amending the overview part of a schedule; or

    • (b) adding the name or description of any food sector to a schedule; or

    • (c) removing the name or description of any food sector from a schedule; or

    • (d) amending the name or description of any food sector in a schedule; or

    • (e) moving the name or description of any food sector from 1 schedule, or Part of a schedule, and inserting that name or description in another schedule, or Part of a schedule; or

    • (f) revoking a schedule or a Part of a schedule and substituting a new schedule or a new Part of a schedule.

    (2) Before recommending the making of regulations under subsection (1), the Minister must—

    • (a) take both of the following matters into account:

      • (i) the need to achieve the safety and suitability of food for sale; and

      • (ii) the likely effect of the regulations on the efficiency of the food sector concerned and the economic impact of the regulations on that sector; and

    • (b) be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

    (3) A food sector to which regulations under subsection (1) relate may be described, without limitation, by—

    • (a) the type of food that the food sector trades in; or

    • (b) the intended purpose or destination of food; or

    • (c) the type of operations or processes carried out in relation to food; or

    • (d) the type of place in which the operations or processes are carried out in relation to food; or

    • (e) any combination of the matters described in paragraphs (a) to (d).

Application of risk-based measures

22 Determining applicable risk-based measure for food businesses that come within food sectors not classified in Schedules 1 to 3
  • (1) This section applies to a food business in a food sector that is not classified in any of Schedules 1 to 3.

    (2) The risk-based measure that applies to a food business to which this section applies is a level 3 national programme.

    (3) This section is subject to section 22A.

22A Food business not subject to risk-based measure only because it imports food
  • (1) Despite section 22, a food business is not subject to a risk-based measure under that section by reason only that it imports food.

    (2) Subsection (1) does not limit or affect the other requirements of this Act in relation to food imported for the purpose of sale.

23 Determining applicable risk-based measure for food businesses that overlap 2 or more food sectors
  • (1) This section applies to a food business carrying out activities that fall into—

    • (a) more than 1 of Schedules 1 to 3:

    • (b) more than 1 of Parts 2 to 4 of Schedule 2.

    (2) The operator of the food business may, at the operator's sole discretion, choose to—

    • (a) operate all of the food business's activities under the risk-based measure that applies to the part of the business with the highest level of risk; or

    • (b) operate each part of the food business under a combination of the risk-based measures specified under section 20(3) for each aspect of the food business the risk-based measure that applies, or under no risk-based measure if no risk-based measure applies, to that part of the food business in accordance with section 20(3).

24 Operator of food business may choose to operate under food control plan even if food business is in food sector classified under lower level of risk
  • Sections 20, 22, 23, and 25 do not prevent an operator of a food business from choosing to operate the food business under a food control plan even if, under section 20(3) or, as the case may be, section 23, the risk-based measure that would generally apply to the food business is a risk-based measure that is other than a food control plan.

    • (a) the risk-based measure that would generally apply to the food business is not a food control plan; or

    • (b) no risk-based measure would generally apply to the food business.

24A Winemaker may apply for winemaking operations to be included under registered food control plan or national programme
  • (1) This section applies to a person—

    • (b) who is a winemaker within the meaning of section 4(1) of the Wine Act 2003; and

    • (c) who does not require an official assurance issued under section 42 of that Act; and

    • (d) whose wine is not subject to export eligibility requirements under section 38 of that Act; and

    • (e) who operates, or is required to operate, under a food control plan or a national programme for activities other than winemaking.

    (2) A person to whom this section applies may apply to the chief executive to have that person’s winemaking operations included under a registered food control plan or have all of the person's operations registered under a national programme.

    (3) The following (as the case may be) apply to an application under subsection (2), subject to subsections (4) and (5) and with any necessary modifications:

    • (a) sections 49 to 53 in respect of an application relating to a food control plan:

    • (b) regulations made under section 73 in respect of an application relating to a national programme.

    (4) In determining the application, the chief executive must take into account the following matters:

    • (a) the frequency, type, and nature of the winemaking operations:

    • (b) the feasibility, effectiveness, and efficiency of operating under a food control plan or a national programme (as the case may be):

    • (c) any other matters that the chief executive considers relevant.

    (5) If the chief executive decides to approve the application,—

    • (a) the chief executive must, as soon as practicable, give the person written notice of that fact; and

    • (b) the person is no longer subject to the Wine Act 2003 for the winemaking operations covered by the registered food control plan or the national programme, unless the chief executive imposes reasonable conditions on the person that include the requirement that specified wine standards are covered by the food control plan or the national programme.

    (6) If the chief executive decides to refuse the application, the chief executive must, as soon as practicable, give the person written notice of—

    • (a) the decision and the reason for it; and

    • (b) the person’s right to seek a review of the decision under section 325.

Requirement to operate under applicable risk-based measure

25 Requirement to operate under applicable risk-based measure
  • Every person who trades in food must operate the person's food business under the risk-based measure that applies to the food sector that the food business is in,—

    • (a) as specified in Schedule 1, 2, or 3; or

    • (b) if section 22 or 23 applies, as determined in accordance with that section.

    (1) This section applies to a person who trades in food and whose food business is in a food sector to which a risk-based measure applies,—

    • (a) as specified in Schedule 1 or 2; or

    • (b) if section 22 or 23 applies, as determined in accordance with that section.

    (2) The person must operate the food business under that risk-based measure or in accordance with section 23(2).

26 Exception to section 25
  • Section 25 does not apply if an operator of a food business—

    • (a) chooses, under section 24, to operate the food business under a food control plan; or

    • (b) is required to operate the food business under a monitoring programme, which may, in certain limited circumstances specified in section 86(2), replace some or all of the need for the food business to operate under a food control plan or a national programme, or under food handler guidance; or

    • (c) is granted an exemption under section 95 to operate the food business under a risk-based measure specified for a food sector that is classified under a lower level of risk (for example, an exemption to operate under food handler guidance instead of operating under a food control plan); or

    • (d) is a person to whom section 320 or 321 applies.

26 Exception to section 25
  • Section 25 does not apply—

    • (a) if the operator of the food business chooses, under section 24, to operate the food business under a food control plan; or

    • (b) to the extent that the operator of the food business is a person or a member of a group that is exempt under section 26B from the requirement to operate under a registered food control plan or a national programme; or

    • (c) to the extent that the operator of the food business is granted an exemption under section 26D; or

    • (d) to the extent that the operator of the food business is a person who has an exemption under section 320 (certain persons covered by Animal Products Act 1999) or 321 (certain persons covered by Wine Act 2003).

26A Where food control plan and national programme do not apply
  • A person or food business that is not subject to, or required to operate under, a food control plan or a national programme—

    • (a) must comply with section 12A and any other applicable requirements of this Act; and

    • (b) must comply with any applicable requirements of the Animal Products Act 1999 or the Wine Act 2003, including any applicable regulations, standards, notices, or directions made under those Acts; and

    • (c) is liable to prosecution if the failure to comply with any of the requirements referred to in paragraphs (a) and (b) is an offence against this Act, the Animal Products Act 1999, or the Wine Act 2003.

26B Exemption from food control plan and national programme if trading in food for certain fund-raising
  • (1) This section applies if—

    • (a) a person or group of persons trades in food for the sole purpose of raising money for a charitable, benevolent, philanthropic, or cultural purpose; and

    • (b) the fund-raising activity is not carried out on more than 20 occasions in any calendar year (unless it is incidental to another charitable, benevolent, or philanthropic activity, such as a permanent stall selling donated goods at a hospice).

    (2) To the extent that the person or group is engaged in any trading described in subsection (1), the person or group is exempt from the requirement to operate under a registered food control plan or a national programme.

    (3) This section is subject to section 26C.

26C Exemption does not apply in prescribed circumstances
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing that the exemption in section 26B does not apply to the following:

    • (a) any food or any 1 or more classes or descriptions of food:

    • (b) any 1 or more classes or descriptions of persons who trade in food:

    • (c) any 1 or more classes or descriptions of operations or places in relation to any trade in food:

    • (d) any combination of the things referred to in paragraphs (a) to (c).

    (2) Before recommending the making of regulations under subsection (1), the Minister must—

    • (a) take into account the need to achieve the safety and suitability of food for sale; and

    • (b) be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

26D Chief executive may grant exemption from requirement to operate under registered food control plan or national programme
  • (1) The chief executive may exempt any person, group of persons, or type or description of food business within a food sector from the requirement to operate under a registered food control plan or a national programme—

    • (a) on his or her own initiative; or

    • (b) on application by any person.

    (2) The chief executive may grant an exemption on application only if he or she is satisfied that the person, group of persons, or food businesses concerned—

    • (a) have demonstrated a valid and appropriate reason not to be required to operate under a registered food control plan or a national programme that outweighs the public interest in maintaining consistency of treatment of persons and food businesses in the same food sector; and

    • (b) have demonstrated understanding and awareness of the importance of hazards and other factors that are relevant in achieving safe and suitable food.

    (3) In determining whether to grant an exemption (whether on application or on his or her own initiative), the chief executive must take into account the following matters:

    • (a) the hazards and other factors that are relevant in achieving safe and suitable food:

    • (b) the potential impact on consumers:

    • (c) the frequency and scale of operation:

    • (d) the feasibility, effectiveness, and efficiency of operating under a food control plan or a national programme:

    • (e) the appropriateness of regulatory control in comparison with controls specified for similar food sectors or types or descriptions of food business:

    • (f) any other matters that the chief executive considers relevant.

    (4) An exemption—

    • (a) must be granted by notice under section 367; and

    • (b) may be amended or revoked at any time by the chief executive by further notice under section 367; and

    • (c) applies during the period (if any) specified in the notice; and

    • (d) is subject to conditions (if any) that may be specified in the notice.

    (5) Without limiting anything in this section, a person who may be granted an exemption under this section includes someone who—

    • (a) produces in his or her own home any food for sale; and

    • (b) sells the food to a consumer only; and

    • (c) does not otherwise sell or distribute the food.

    (6) This section is not limited by sections 314 and 315.

    Compare: 1999 No 93 s 14

26E Chief executive may delegate functions, duties, or powers under section 26D to territorial authorities
  • (1) The chief executive may delegate any of the chief executive's functions, duties, or powers under section 26D to 1 or more territorial authorities.

    (2) A territorial authority to which any functions, duties, or powers are delegated under this section may perform those functions and duties, or exercise those powers,—

    • (a) in the same manner, subject to the same restrictions, and with the same effect as if they had been imposed or conferred on that territorial authority directly by this Act and not by delegation; but

    • (b) subject to any terms and conditions imposed under subsection (3) or conditions imposed by subsection (8).

    (3) However, a delegation under this section may be made on any terms and conditions that the chief executive thinks fit, and may be revoked at any time by notice to the territorial authority.

    (4) A territorial authority acting under delegation is presumed to be acting in accordance with its terms in the absence of proof to the contrary.

    (6) A delegation under this section does not affect the performance of any function or duty, or the exercise of any power, by the chief executive.

    (7) Neither the chief executive nor the Crown is responsible for any act or default of a territorial authority in the performance of any function or duty, or in the exercise of any power, delegated under this section.

    (8) A delegation of the chief executive's power to grant an exemption under section 26D must be subject to the following conditions:

    • (a) the exemption may be granted only to a food business that is operating entirely within the district of the territorial authority to which the power is delegated; and

    • (b) the food business must belong to a food sector that is required to be registered with the territorial authority; and

    • (c) the food business must not have been registered by the chief executive; and

    • (d) the territorial authority to which the power is delegated must, when issuing a notice under section 26D(4)(a) or (b), comply with the requirements of that section and sections 368 and 369 as if the territorial authority were the chief executive.

Subpart 2Food control plans

Preliminary

27 Purpose of this subpart
  • The purpose of this subpart is to—

    • (a) set out provisions about the nature, content, and effect of a food control plan; and

    • (b) require the registration of food control plans.

Food control plans

28 Food control plan: general description
  • A food control plan is a plan designed for a particular food business to identify, control, manage, and eliminate or minimise hazards or other relevant factors for the purpose of achieving safe and suitable food, taking into account—

    • (a) each type of food that the food business trades in; and

    • (b) each type of process or operation that is applied to the food; and

    • (c) each place in which the food business trades in food.

    Compare: 1999 No 93 s 12

29 Food control plan: development
  • (1) A food control plan may be individually developed by a person or food business for the food business to which it is to apply.

    (2) Alternatively, a food control plan may be developed by 1 person or food business and then adopted and amended to suit the operations of some other food business.

    (3) In developing a food control plan, the following matters must be taken into account in order to achieve the safety and suitability of food:

    • (a) the identification of all relevant hazards and other factors that are reasonably likely to occur or arise; and

    • (b) the identification of appropriate control measures and the basis for considering them valid; and

    • (c) the identification of process, performance, or product parameters; and

    • (d) any other matters specified in a notice under section 367.

30 Food control plan: coverage
  • (1) A food control plan may apply to 1 or more food businesses1 food business or, if the requirements of section 45(2) are met, to more than 1 food business.

    (2) Conversely, a food business may also be covered by 1 or more food control plans.

31 Food control plan: based on template or model
  • (1) Despite section 29, a food control plan may be fully based on a template or model.

    (2) For the purposes of subsection (1), a food control plan is fully based on a template or model even though some parts of the template or model are not applicable to the food business and are not included in the food control plan.

31 Food control plan: based on official template or model
  • (1) A food control plan may be based on an official template or model.

    (2) For the purposes of this Act, a food control plan that is based on an official template or model—

    • (a) may exclude any part of the template or model that is not applicable to any food business to which the plan applies; and

    • (b) must not include any provision that is not part of an official template or model.

32 Food control plan: chief executive's power to issue official template or model
  • (1) The chief executive may, by notice under section 367,—

    • (a) issue a template or model for different types of food sectors or food businesses; and

    • (b) amend, replace, or revoke a template or model.

    (1) The chief executive may, by notice under section 367, issue a template or model for different types of food sectors or food businesses.

    (2) If the chief executive issues or amends a template or model, the chief executive must—

    • (a) make a copy of the template or model available, free of charge, on an Internet site or for public inspection at reasonable hours at the head office of the Ministry; or

    • (b) on request, supply a copy of the template or model, free of charge, to any person who cannot access it on the Internet site.

    (3) The chief executive must ensure that the requirements in section 29(3) are met when developing a template or model.

    (4) This section does not limit or affect section 33.

33 Food control plan: chief executive's power to approve official template or model developed by third party
  • (1) The chief executive may, by notice under section 367, approve a template or model developed by a person other than the chief executive or by a food industry body.

    (2) The chief executive may give an approval under this section subject to conditions.

    (3) An approval must end within 3 years from the date of approval.

    (3) An approval must end within—

    • (a) 3 years from the date of approval; or

    • (b) a shorter period specified by the chief executive.

    (4) The notice under section 367 must state—

    • (a) any conditions subject to which the approval is given; and

    • (b) the date on which the approval ends.

    (5) Before an approval ends, the chief executive may issue a new notice under section 367 approving the template or model for a period of up to 3 years.

    (6) The chief executive may suspend or withdraw an approval by issuing a notice under section 367.

    (7) This section does not limit or affect section 37.

34 Food control plan: form
  • A food control plan must be in writing in a form acceptable to the chief executive appropriate registration authority for the plan.

    Compare: 1999 No 93 s 17(1)(a)

35 Food control plan: contents
  • A food control plan must set out—

    • (a) the name, trading name, and business address (including the electronic address, if available) of—

      • (i) the operator whose plan it is; and

      • (ii) the food business or businesses covered by the plan (whether or not the business is owned by the operator whose plan it is); and

    • (a) the name, trading name, and business address (including the electronic address, if available) of—

      • (i) the food business or businesses covered by the plan; and

      • (ii) if the plan applies to only 1 food business, the operator of the food business; and

      • (iii) if the plan applies to more than 1 food business, the operator of the plan and the operator of each food business covered by the plan; and

    • (aa) the operators' physical and electronic addresses for the purposes of section 340(3)(a); and

    • (ab) the physical address or, if appropriate, the location of the food business or its nominated home base; and

    • (b) the name, or the position or designation, and the area of responsibility (if appropriate) of the person who is responsible for the day-to-day management of the plan, as nominated by the person in control of the food business or businesses; and

    • (c) the scope of the plan, including (without limitation)—

      • (i) the type of food to which it applies; and

      • (ii) the nature of the food business or businesses covered by the plan; and

      • (iii) the trading operations under the plan; and

    • (d) how the applicable requirements of this Act (as defined in section 7(1)) will be met under the plan; and

    • (e) a description of the hazards and other factors that are reasonably likely to occur or arise; and

    • (f) procedures to achieve the safety and suitability of food, including (without limitation)—

      • (i) good operating practice; and

      • (ii) control of all relevant hazards and other factors that are reasonably likely to occur or arise; and

      • (iii) monitoring of appropriate parameters and limits; and

      • (iiia) preventative actions; and

      • (iv) corrective actions; and

      • (v) operator verification activities; and

      • (vi) document control and record keeping; and

    • (g) any validation information as appropriate; and

    • (h) any procedures necessary to prepare for, mitigate, and deal with the impact of an emergency on the safety and suitability of food that may be specified in regulations or in notices under section 367; and

    • (i) any other matters that may be specified in regulations or in notices under section 367.

    Compare: 1999 No 93 s 17(1)(b), (c), (2)

35A Regulations about food control plans
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

    • (a) stating matters relating to the content and purpose of a food control plan for the food sectors referred to in section 20(3)(a):

    • (b) prescribing controls, restrictions, requirements, and prohibitions in relation to a food sector, including provisions about how a food sector must manage or deal with risks that arise from trading in food:

    • (c) prescribing verification requirements, including provisions that deal with the frequency, intensity, and cost of verification:

    • (d) prescribing requirements for the registration of food control plans and providing for the manner and form in which a person must register a food control plan:

    • (da) prescribing conditions, or restrictions on conditions, that the registration authority may impose on the registration of a food control plan:

    • (e) prescribing requirements for the validation and evaluation of food control plans:

    • (f) providing for any other matters that may be necessary or desirable to give effect to or to administer the registration of food control plans:

    • (g) requiring persons who operate under food control plans to demonstrate competency, in relation to the safety and suitability of food, food production, and food processing and handling, to undergo appropriate training, and to provide training for staff as appropriate:

    • (i) requiring reports to be made in respect of breaches of a food control plan:

    • (j) requiring samples and tests to be carried out in relation to matters covered by a food control plan and for the results of those tests to be reported to the chief executive:

    • (k) prescribing any other matters that may be necessary to ensure that a food control plan effectively minimises and manages risks to public health and protects and promotes public health:

    • (l) prescribing requirements relating to the safety and suitability of food and to good operating practice:

    • (m) prescribing any other matters that may be necessary for the purpose of giving effect to the implementation of food control plans.

    (2) Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

Amendments to food control plans

36 Amendments to food control plan based on template or model issued by chief executive
  • (1) This section applies if the chief executive, by notice under section 367, does any of the following things under section 32 in relation to a template or model issued by the chief executive under that section:

    • (a) amends the template or model; or

    • (b) revokes the template or model and replaces it with another template or model; or

    • (c) revokes the template or model without replacing it with another template or model.

    (2) The operator of a registered food control plan based on the template or model that is so amended or revoked must comply with any requirements specified by the chief executive in the notice under section 367 within the time specified in that notice.

    (3) Without limiting subsection (2), the requirements that may be specified in the notice include—

    • (a) the application of the new template or model to existing operations covered by the plan; and

    • (b) the options available to the operator under the new template or model (for example, whether to fully apply the new template or model or to use the new template or model as a basis for a food control plan that is not fully based on a template or model); and

    • (c) the transitional provisions required if the new template or model is to be applied; and

    • (d) how the documentation relating to the food control plan that is being replaced is to be handled or managed; and

    • (e) any other matters that may be necessary to give effect to the amendment, replacement, or revocation of the template or model.

37 Amendments to food control plan based on template or model approved by chief executive
  • (1) This section applies if a person or an industry body that developed a template or model that the chief executive approved under section 33 amends the template or model.

    (2) The operator of a registered food control plan based on the template or model that is so amended must comply with any requirements specified by the chief executive, by notice under section 367, within the time specified in the notice.

38 Significant amendments to food control plan
  • (1) This section applies if the chief executive, by notice under section 367, specifies what amendments to a food control plan must be treated as significant amendments.

    (2) Without limiting subsection (1), the matters that may be specified in the notice under section 367 include—

    • (a) details of what are or are not significant amendments; and

    • (b) an explanation of the effect of a significant amendment; and

    • (c) guidance on how outdated documentation should be handled or managed; and

    • (d) any other matters that are necessary to give effect to this section.

    (3) The operator of a registered food control plan must amend that plan and apply for registration of any amendment that constitutes a significant amendment as so specified in accordance with subsection (1).

    (4) The operator of a registered food control plan must apply for registration of the amendment to the plan before any change, event, or other matter that must be treated as a significant amendment as so specified in accordance with subsection (1), if the operator knows of the change, event, or other matter in advance, and in all other cases must do so without unreasonable delay.

    Compare: 1999 No 93 s 25

39 Application for registration of amendment
  • (1) The operator of a registered food control plan may apply to the appropriate registration authority (as specified in section 48) for registration of—

    • (a) an amendment to the plan under section 36 or 37; or

    • (b) a replacement plan under section 36.

    (2) Sections 49 to 53 apply, with any necessary modifications, to an application for registration under subsection (1) as if it were an application for registration under section 49.

40 Registration of amendment to, or replacement for, food control plan
  • As soon as practicable after determining to register an amendment to, or a replacement for, a registered food control plan, the registration authority must—

    • (a) give written notice of the registration of the amendment or replacement to the chief executive, if the registration authority is the relevant territorial authority; or

    • (b) make an appropriate entry on the relevant public register, if the registration authority is the chief executive or if the chief executive receives the written notice under paragraph (a).

Amendments to food control plans

36 Chief executive's power to amend, replace, or revoke template or model issued under section 32
  • (1) The chief executive may, by notice under section 367, amend, replace, or revoke a template or model issued under section 32.

    (2) If a registered food control plan is based on a template or model that is amended or replaced in accordance with subsection (1), the operator of the plan—

    • (a) must comply with any requirements specified by the chief executive in the notice under section 367 within the time specified in that notice; but

    • (b) is not obliged to re-register the food control plan.

    (3) If a registered food control plan is based on a template or model that is revoked, and not replaced, in accordance with subsection (1),—

    • (a) the operator of the plan and the operator of a food business to which the plan applies may continue to operate under the food control plan until the expiry of the period specified in the notice under section 367; but

    • (b) the operator of the plan must, before the expiry of that period, apply to the appropriate registration authority for an alternative food control plan to be registered.

    (4) If the chief executive amends or replaces a template or model in accordance with subsection (1), the chief executive must—

    • (a) make a copy of the amended or replacement template or model available, free of charge, on an Internet site or for public inspection at reasonable hours at the head office of the Ministry; or

    • (b) on request, supply a copy of the amended or replacement template or model, free of charge, to any person who cannot access it on the Internet site.

37 Operator may amend food control plan based on template or model issued under section 32 or approved under section 33
  • (1) An operator of a registered food control plan based on a template or model issued by the chief executive under section 32 or approved by the chief executive under section 33 may amend the food control plan.

    (2) If the amendment to the food control plan is not a significant amendment, the operator must give written notice of the amendment to the registration authority for that plan.

    (3) If the amendment to the food control plan is a significant amendment, the operator must apply to that registration authority for the amended plan to be registered.

    (4) If the registration authority for the plan determines that it is no longer the appropriate registration authority for that plan, that registration authority must forward the application to the appropriate registration authority.

    (5) For the purposes of this section, the chief executive may, by notice under section 367, specify what amendments to a food control plan must be treated as significant amendments.

40 Operator may amend food control plan not based on official template or model
  • (1) An operator of a registered food control plan that is not based on an official template or model may amend the food control plan.

    (2) If the amendment to the food control plan is not a significant amendment, the operator must give written notice of the amendment to the appropriate registration authority for the plan.

    (3) If the amendment to the food control plan is a significant amendment, the operator must apply to the appropriate registration authority for the amended plan to be registered.

    (4) On receipt of an application under subsection (3), the appropriate registration authority may require the amended food control plan to be evaluated before registering the plan.

    (5) If the appropriate registration authority considers that the amendment to the food control plan is so extensive that it constitutes a new food control plan, the appropriate registration authority may treat the application for registration of the amended food control plan as an application for registration of a new food control plan.

    (6) For the purposes of this section, the chief executive may, by notice under section 367, specify what amendments to a food control plan must be treated as significant amendments.

40A Sections 49 to 53, 55, and 56 apply to applications for registration of amended food control plans
  • Sections 49 to 53, 55, and 56 apply with any necessary modifications to an application under section 37(3) or 40(3) for an amended food control plan to be registered.

Requirement to register food control plans

41 Food control plans must be registered
  • An operator of a food business that is required to operate under a food control plan must—

    • (a) register the food control plan that is proposed to apply to the food business; and

    • (b) ensure that, before any food is sold by the food business,—

      • (i) the food business is operating under the registered food control plan; and

      • (ii) the food is imported, produced, or, as the case may be, processed and handled under the registered food control plan.

41 Food control plans must be registered
  • An operator of a food business that is required to operate under a food control plan must—

    • (a) register with the appropriate registration authority the food control plan that is proposed to apply to the food business; or

    • (b) ensure that there is registered with the appropriate registration authority a food control plan that applies to the food business.

Other provisions relating to registered food control plans

42 Secondary processor of animal product that is food may apply for operations to be included under registered food control plan
  • (1) This section applies to a person—

    • (a) who is required to operate under a food control plan; and

    • (b) who is a secondary processor (within the meaning of section 4(1) of the Animal Products Act 1999) of an animal product that is food; and

    • (c) who does not require an official assurance issued under section 61 of that Act.

    (2) A person to whom this section applies may apply to the chief executive to include the person’s secondary processing operations under a registered food control plan.

    (3) Sections 49 to 53 apply to an application under subsection (2), subject to subsections (4) and (5) and with any necessary modifications.

    (4) In determining the application, the chief executive must take into account the following matters:

    • (a) the frequency, type, and nature of the secondary processing operations:

    • (b) the feasibility, effectiveness, and efficiency of operating under a food control plan:

    • (c) any other matters that the chief executive considers relevant.

    (5) If the chief executive decides to approve the application,—

    • (a) the chief executive must, as soon as practicable, give the person written notice of that fact; and

    • (b) the person is no longer subject to the Animal Products Act 1999 in respect of the person’s secondary processing operations in relation to the part that is covered by a registered food control plan; and

    • (c) the chief executive may impose any reasonable conditions on the person, including the condition that specified standards set under the Animal Products Act 1999 are covered by the person’s registered food control plan.

    (6) If the chief executive decides to refuse the application, the chief executive must, as soon as practicable, give the person written notice of—

    • (a) the decision and the reason for it; and

    • (b) the person’s right to seek a review of the decision under section 325.

43 Winemaker may apply for winemaking operations to be included under registered food control plan
  • (1) This section applies to a person—

    • (a) who is required to operate under a food control plan; and

    • (b) who is a winemaker within the meaning of section 4(1) of the Wine Act 2003; and

    • (c) who does not require an official assurance issued under section 42 of that Act; and

    • (d) whose wine is not subject to export eligibility requirements under section 38 of that Act.

    (2) A person to whom this section applies may apply to the chief executive to include the person’s winemaking operations under a registered food control plan.

    (3) Sections 49 to 53 apply to an application under subsection (2), subject to subsections (4) and (5) and with any necessary modifications.

    (4) In determining the application, the chief executive must take into account the following matters:

    • (a) the frequency, type, and nature of the winemaking operations:

    • (b) the feasibility, effectiveness, and efficiency of operating under a food control plan:

    • (c) any other matters that the chief executive considers relevant.

    (5) If the chief executive decides to approve the application,—

    • (a) the chief executive must, as soon as practicable, give the person written notice of that fact; and

    • (b) the person is no longer subject to the Wine Act 2003 in respect of the person’s winemaking operations in relation to the part that is covered by a registered food control plan; and

    • (c) the chief executive may impose any reasonable conditions on the person, including the condition that specified wine standards are covered by the person’s registered food control plan.

    (6) If the chief executive decides to refuse the application, the chief executive must, as soon as practicable, give the person written notice of—

    • (a) the decision and the reason for it; and

    • (b) the person’s right to seek a review of the decision under section 325.

44 Requirements of Act to prevail in cases of inconsistency with registered food control plan
  • If there is any inconsistency between the requirements of a registered food control plan and the applicable requirements of this Act (whether by reason of a failure to amend or update the plan to reflect any new requirements or otherwise), the applicable requirements of this Act prevail.

Duties of operators of registered food control plans

45 Duties of operators of registered food control plans
  • (1) The operator of a registered food control plan must—

    • (a) ensure that the operations of the food business or food businesses to which the food control plan applies comply with the relevant requirements set out in the plan:

    • (b) ensure that the operations of that food business or those food businesses comply with the applicable requirements of this Act:

    • (c) ensure that the plan is consistent with the applicable requirements of this Act:

    • (d) adequately implement and resource all operations under the plan, including provision for the instruction, competency, training, and supervision of staff to achieve the safety and suitability of food instructing, training, and supervising staff to achieve the safety and suitability of food and ensuring that staff have the necessary competency to achieve that purpose:

    • (e) ensure that all operations under the plan are commensurate with the capability and the capacity of the place, facilities, equipment, and staff to achieve the safety and suitability of food:

    • (f) ensure that, after commencement of the operations to which the registered food control plan relates, the plan is verified by an appropriate recognised agency or recognised person:

    • (g) give relevant recognised agencies and recognised persons the freedom and access that will allow them to carry out their functions and activities under this Act (including verification functions and activities):

    • (h) keep a copy of the plan for as long as its registration is effective:

    • (i) if the plan is amended, revoked, or replaced, keep a copy of the plan (as it was before it was amended, revoked, or replaced) for a period of not less than 4 years and keep a copy of the amended or replacement plan for as long as its registration is effective:

    • (j) comply with section 46.

    (2) For a registered food control plan that applies to all or part of more than 1 food business, the operator of the plan must ensure that—

    • (a) the operator will have sufficient control, authority, and accountability for all matters covered by the plan in relation to the other food business or businesses, or part- business or businesses, subject to the plan’s coverage; and

    • (b) the person in control operator of each food business agrees to carry out the duties under subsection (1) for the business that person controls the operator's business.

    (3) To avoid doubt, the The duties set out in subsection (1) also apply (so far as they are applicable to their businesses) to the person in control operator of each food business referred to in subsection (2)(b).

    Compare: 1999 No 93 s 16

46 Operator of registered food control plan must notify registration authority of significant change in circumstances
  • (1) The operator of a registered food control plan must give written notice to the registration authority of any significant change in circumstances within the time specified in a notice under section 367.

    (1A) The notice under subsection (1) must be given—

    • (a) before the significant change in circumstances occurs; or

    • (b) if compliance with paragraph (a) is not practicable, as soon as practicable after the significant change in circumstances occurs but, in any event, not later than 10 working days after the change occurs.

    (2) In this section, significant change in circumstances

    • (a) means—

      • (i) any change in the information that the operator has provided in respect of an application for registration of the food control plan under section 49 in respect of the information required under section 35(a) to (c) and under section 51:

      • (i) any change in any of the following information that the operator has provided under section 49 in respect of an application for registration of the food control plan:

        • (A) the information required under section 35(a) to (c) and (f)(ii):

        • (B) the verifier or verification agency that will carry out verification functions in respect of the plan:

      • (ia) any change in the information that the operator has provided under section 51 in respect of an application for registration of the food control plan:

      • (ii) any matter that results in the food control plan not meeting the criteria under section 52; and

    • (b) includes—

      • (i) any change that a notice issued under section 367 specifies to be a significant change of circumstances for the purposes of this section:

      • (ii) any change in the ownership or control of the food business concerned (but not in a company’s shareholding, unless the change in shareholding results in control of the company passing to 1 or more different persons).

    • (b) includes the death, bankruptcy, receivership, voluntary administration, or liquidation of the operator of the plan or the operator of a food business to which the plan applies.

    (3) If subsection (2)(b) applies to the operator of the plan, the person who assumes control of the operator's business must give the written notice required by subsection (1).

Registration of food control plans

47 Application for registration: who may apply
  • An operator of a food business to which a food control plan is proposed to apply may apply to the appropriate registration authority for the registration of that food control plan.

    Compare: 1999 No 93 s 20(1)

48 Application for registration: who is appropriate registration authority
  • (1) The appropriate registration authority is,—

    • (a) for a food control plan that is fully based on a template or model issued by the chief executive under section 32, the relevant territorial authority; or

    • (b) for any other case,—

      • (i) the chief executive; or

      • (ii) a territorial authority, if regulations made under this Act provide accordingly.

    (1) The appropriate registration authority for a food control plan that is based on a template or model issued by the chief executive under section 32 is the relevant territorial authority, unless the plan applies to more than 1 place of business and the definition in subsection (2) would result in more than 1 relevant territorial authority.

    (1A) The appropriate registration authority for all other food control plans is—

    • (a) the relevant territorial authority, if regulations made under this Act authorise the territorial authority (either generally or specifically) to perform this function; or

    • (b) the chief executive, in any other case.

    (2) In this Act, relevant territorial authority means,—

    • (a) if the application for registration relates to a place 1 or more fixed places of business, the territorial authority that, under this Act, is responsible for performing the function of a registration authority for the district or combined district where that place is the 1 or more places are situated; or

    • (b) if the application for registration relates to a mobile food business, the territorial authority that, under this Act, is responsible for performing the function of a registration authority for the district or combined district where the business address of the mobile food business is situated.

49 Application for registration: form and content
  • (1) An application for registration must—

    • (a) be made in writing in a form or manner approved by the chief executive appropriate registration authority; and

    • (b) include the information described in subsection (2) or, as the case may be, subsection (3); and

    • (c) be accompanied by the prescribed fee (if any) that is prescribed or set under section 175 or 176.

    (2) For a food control plan that is fully based on a an official template or model (whether issued by the chief executive under section 32 or approved by the chief executive under section 33), the information referred to in subsection (1)(b) is—

    • (a) the information required under section 35(a) to (c) that provides a comprehensive and accurate representation of all the requirements of those paragraphs and any information required under section 35(i); and

    • (b) the reference number of the official template or model used; and

    • (c) any further information and other material (including declarations, if appropriate) that may be required by notice under section 367 or by regulations made under this Act.

    • (c) confirmation of the verifier or verification agency that will carry out verification functions in respect of the plan.

    (3) For a food control plan that is not fully based on a  an official template or model, the information referred to in subsection (1)(b) is—

    • (a) either of the following:

      • (i) an outline of the information required under section 35(a) to (c) and (f)(ii) that provides a comprehensive and accurate representation of all the requirements of those paragraphs and a list of the contents of the food control plan; or:

      • (ii) a copy of the entire food control plan, as may be required by notice under section 367; and

    • (b) unless waived by the chief executive on a case-by-case basis or by notice under section 367, a report of an independent evaluation, carried out not more than 6 months before the date of the application for registration, of the validity of the food control plan in terms of sections 29, 34, and 35 34 and 35; and

    • (c) an indication confirmation of the verifier and verifying or verification agency that will carry out verification functions in respect of the plan.

    • (d) any further information and other material (including declarations, if appropriate) that may be required by notice under section 367 or by regulations made under this Act.

    Compare: 1999 No 93 s 20(2), (3)

50 Registration authority may refuse to process application for registration
  • The registration authority may refuse to process an application for registration if the applicant does not provide an application that complies with section 49.

51 Registration authority may require further information
  • (1) The registration authority may require an applicant to supply relevant further information or material (including the whole or part of a food control plan) before determining whether or not to register a food control plan.

    (2) An application for registration lapses if the information or material is not supplied—

    • (a) within 3 months after the date of the requirement; or

    • (b) within any further time that the registration authority allows.

    Compare: 1999 No 93 s 21

52 Criteria for registration of food control plan
  • The registration authority must register a food control plan if satisfied that—

    • (a) the food control plan complies with the applicable requirements of this Act; and

    • (b) if implemented appropriately, the food control plan will enable safe and suitable food to be traded; and

    • (c) the business, or its operator, is resident in New Zealand (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007); and

    • (d) the operator of the food business is able to comply with the requirements of this Act.

    • (c) either,—

      • (i) if the plan applies to 1 food business, the operator of the food business is a New Zealand resident (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007); or

      • (ii) if the plan applies to more than 1 food business, every operator of the food businesses and the operator of the plan are New Zealand residents within the meaning of either of those sections of that Act; and

    • (d) either,—

      • (i) if the plan applies to 1 food business, the operator of the food business is able to comply with the requirements of this Act; or

      • (ii) if the plan applies to more than 1 food business, every operator of the food businesses and the operator of the plan are able to comply with the requirements of this Act.

    Compare: 1999 No 93 s 22

53 Refusal to register food control plan
  • (1) If the registration authority proposes to refuse to register a food control plan, the registration authority must give the applicant—

    • (a) a written notice that clearly informs the applicant of the grounds proposed for refusal; and

    • (b) a reasonable opportunity to make written submissions.

    (2) If the registration authority finally determines to refuse to register the plan, the registration authority must, as soon as practicable, give the applicant written notice of—

    • (a) the decision and the reason for it; and

    • (b) the applicant’s right to seek a review of the decision under section 325.

    Compare: 1999 No 93 s 23

54 Applicants for registration must notify registration authority of significant change in circumstances
  • (1) An applicant for registration of a food control plan must give written notice to the registration authority of any significant change in circumstances within the time specified in a notice under section 367.

    (1A) The notice under subsection (1) must be given—

    • (a) before the significant change in circumstances occurs; or

    • (b) if compliance with paragraph (a) is not practicable, as soon as practicable after the significant change in circumstances occurs but, in any event, not later than 10 working days after the change occurs.

    (2) In this section, significant change in circumstances

    • (a) means—

      • (i) any change in the information that the applicant has provided in respect of the application for registration of the food control plan under section 49 in respect of the information required under section 35(a) to (c) and under section 51:

      • (ia) any change in the procedures set out in the food control plan that relate to the matters referred to in section 35(f)(ii):

      • (ii) any matter that results in the food control plan not meeting the criteria under section 52; and.

    • (b) includes—

      • (i) any change that a notice issued under section 367 specifies to be a significant change of circumstances for the purposes of this section:

      • (ii) any change in the ownership or control of the food business concerned (but not in a company’s shareholding, unless the change in shareholding results in control of the company passing to 1 or more different persons).

55 Registration of food control plan
  • (1) If the registration authority is the chief executive and decides to register a food control plan, the registration authority must, as soon as practicable,—

    • (a) enter the name of the operator of the food business covered by the plan or of the operator of the plan, and the date of registration of the plan, on the relevant public register; and

    • (a) enter the information required by clause 4 of Schedule 5 on the relevant public register; and

    • (b) give the applicant written notice of specifying the date on which the registration takes effect, which notice must state the duration of the registration, and any conditions imposed under section 56.

    (2) If the registration authority is not the chief executive and decides to register a food control plan, the registration authority must, as soon as practicable,—

    • (a) provide the information required by clause 4 of Schedule 5 to the chief executive for entry on the relevant public register; and

    • (b) give the applicant written notice specifying the date on which the registration takes effect, the duration of the registration, and any conditions imposed under section 56.

    (3) After being provided with information under subsection (2)(a), the chief executive must, as soon as practicable, enter the information on the relevant public register.

    Compare: 1999 No 93 s 22(3)

56 Registration authority may impose conditions on registration of food control plan
  • (1) The registration authority may register a food control plan subject to any reasonable conditions that it may specify.

    (2) The registration authority may, at any time, vary any conditions by written notice to the operator of a food control plan, revoke, amend, or add to any conditions imposed in respect of the plan.

    (2A) However, if regulations have been made under section 35A(1)(da), the conditions must comply with those regulations.

    (3) If the registration authority imposes or varies conditions under this section, the registration authority must, as soon as practicable, give the operator of the food control plan in question written notice of—

    • (a) the conditions and the reason for imposing or varying them; and

    • (b) the operator's right to seek a review of the conditions under section 325.

    (4) In this section, vary means—

    • (a) to impose additional conditions; or

    • (b) to revoke or amend any conditions.

57 Duration of registration
  • (1) The registration of a food control plan is effective from the date of registration until—

    • (a) the date that is 12 months after the date of registration; or

    • (b) a later date specified by the registration authority by written notice to the operator of the food control plan.

    (2) Subsection (1) applies unless the registration—

    • (a) expires in accordance with a condition imposed under section 56; or

    • (b) is cancelled under section 64; or

    • (c) is surrendered under section 68.

    (3) The registration may be renewed for further periods in accordance with Part 2 of Schedule 4.

58 Registration may not be transferred
  • (1) The registration of a food control plan applies only to the particular operator specified in the plan and—

    • (a) may not be transferred to a different operator; and

    • (b) may not vest by operation of law in any person other than the operator whose plan it is.

    (2) For the purposes of this section, the following circumstances will, except as otherwise specified by the chief executive by notice under section 367, be treated as involving a change in the operator of a registered food control plan and so require registration of a new food control plan rather than the amendment of an existing registered plan:

    • (a) a change in the name of a company (but not in a company’s shareholding, unless the change in shareholding results in control of the company passing to 1 or more different persons):

    • (b) a change in the members of a partnership (but not in members’ respective shares in the partnership):

    • (c) the death, bankruptcy, receivership, voluntary administration, or liquidation of the operator of the plan.

    Compare: 1999 No 93 s 24

Suspension of operations under registered food control plan

59 Mandatory suspension
  • (1) The registration authority may, at any time, suspend all or any operations under a registered food control plan in accordance with clauses 4 and 6 of Schedule 4 if it has reasonable grounds to believe that—

    • (a) the food control plan may not be, or is no longer, effective (for example, because of a failure to have the plan verified in accordance with the applicable requirements of this Act); or

    • (b) the food traded under the food control plan does not meet, or no longer meets, the applicable requirements of this Act; or

    • (c) the food traded under the food control plan may pose a risk to human life or public health; or

    • (d) there is or has been a serious failure of operations or there are or have been other matters (including non-compliance with the conditions of registration) under the plan that cast doubt on the safety and suitability of food traded under it.

    (2) The maximum period of suspension under this section is 3 months.

    Compare: 1999 No 93 s 27

60 Registration authority may extend mandatory suspension
  • (1) The registration authority may extend the period of a suspension under section 59 in accordance with clause 5 of Schedule 4 if the registration authority considers it necessary in the circumstances.

    (2) The period of extension—

    • (a) may be for any further period that the registration authority notifies in writing to the operator of the food control plan before the expiry of the original suspension; but

    • (b) must not exceed 3 months.

61 Voluntary suspension
  • (1) If the operator of a registered food control plan wishes to suspend all operations under the plan or the operations of 1 or more food businesses covered by the plan, the operator must suspend those operations in accordance with clause 7 of Schedule 4.

    (2) The suspension must be for a period of at least 3 months, but the operator may extend the period of suspension.

    (3) The maximum period of suspension under this section is 12 months.

62 Effect of suspension
  • (1) If all or any operations under a registered food control plan are suspended under section 59 or 61 or the period of suspension of any operation is extended under section 60, the registration authority may—

    • (a) direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

    • (b) direct the operator of the food business or person in control of any affected food, food-related accessory, or operations of the food business, to take appropriate action to deal with the affected food, food-related accessory, or operations; and

    • (c) exercise any of the relevant powers under section 253.

    (2) Section 253 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

    (2A) The registration authority must ensure that, during the period of suspension, the suspension is recorded on the relevant public register.

    (3) A suspension under section 59 or 61 does not affect any other actions that the registration authority may take under this Act.

    Compare: 1999 No 93 s 27(8)

Removal of registration of food control plans

63 Removal from public register
  • The registration authority must remove a food control plan from the relevant public register if the registration authority—

    • (a) cancels the registration of the food control plan under section 64; or

    • (b) records the surrender of the registration of the food control plan under section 68.

    (1) This section applies to a food control plan if the chief executive—

    • (a) cancels the plan's registration under section 64 or is notified of its cancellation by a registration authority under section 64(2)(a)(ii); or

    • (b) is notified of the surrender of the plan's registration under section 68, either by notice by the operator of the plan under section 68(1) or notice by the registration authority under section 68(2).

    (2) As soon as practicable after this section applies to a food control plan, the chief executive must—

    • (a) record the cancellation or surrender on the relevant public register; and

    • (b) remove the food control plan from the relevant public register.

64 Cancellation of registration
  • (1) The registration authority may cancel the registration of a food control plan in accordance with Part 4 of Schedule 4 if satisfied that—

    • (a) suspending operations under the plan under section 59 would be justified, but it would be more appropriate to cancel the registration of the plan because of—

      • (i) the failure of the operator of the plan to properly attend to matters that would lead to the suspension; or

      • (ii) repeated suspensions in the past under that section or section 61; or

    • (b) the period of a suspension of the plan under section 59 has expired, but the operator of the plan has failed to properly attend to matters that led to the suspension of operations under the plan and there are no reasonable grounds for believing that the operator would properly attend to those matters; or

    • (c) whether by reason of the passage of time, changing circumstances, or for any other reason, the plan is no longer capable of achieving the safety and suitability of food traded under it; or

    • (d) the plan has ceased to be relevant to the operations it purports to cover because there has been a change in—

      • (i) the identity of the operator of the food business concerned; or

      • (ii) the place where the relevant operations are carried out; or

      • (iii) the food being traded; or

      • (iv) the type of trading being carried out; or

    • (e) the operator of the plan has ceased to operate as an importer, a producer, processor, or seller of food and has either—

      • (i) surrendered the registration of the plan; or

      • (ii) failed to surrender the registration of the plan despite reasonable efforts by the registration authority to contact the operator; or

    • (ea) the operator of the plan has transferred the food business covered by the plan to a new operator, but the registration authority is not satisfied of the matters in section 52(c) or (d) in relation to the new operator; or

    • (f) the operator of the plan has failed to pay any fees or charges imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

    (2) If the registration authority decides to cancel the registration of a food control plan, the registration authority—

    • (a) must, as soon as practicable, give written notice of the cancellation to—

      • (i) the appropriate verifier or verification agency (if any); and

      • (ii) the chief executive, if the registration authority is not the chief executive; and

    • (b) may notify the cancellation in the Gazette.

    Compare: 1999 No 93 s 28(1)

65 Effective date of cancellation
  • The cancellation of the registration of a food control plan takes effect on the date specified by the registration authority in the notice given to the operator of the plan under clause 10(1)(d) of Schedule 4, which must be a date after the date of that notice.

66 Effect of cancellation of registration
  • (1) If the registration of a food control plan is cancelled, the registration authority may—

    • (a) direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

    • (b) direct the operator of the food business or person in control of any affected food, food-related accessories, or operations of the food business to take appropriate action to deal with the affected food, food-related accessories, or operations; and

    • (c) exercise any of the other powers under section 253.

    (2) Section 253 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

    (3) A cancellation of registration does not affect any other actions that the registration authority may take under this Act.

    Compare: 1999 No 93 s 28(4), (5)

67 Removal of food business from coverage of food control plan
  • (1) The registration authority may remove a food business from the coverage of a registered food control plan that applies to 2 or more businesses if satisfied that cancellation of the plan’s registration would be appropriate under section 64 if the food business were the only one operating under the plan.

    (2) In determining whether to exercise the power conferred by subsection (1), the registration authority must take into account the effect of removing the food business from the coverage of the food control plan on any food business or food businesses that will continue to be covered by the plan and whether the plan will continue to achieve safe and suitable food.

    (3) Section 64 Sections 63 to 66 and Part 4 of Schedule 4 apply, subject to any necessary modifications, in relation to the removal of the business from the coverage of the food control plan as if references in that section those sections or that schedule to cancellation of the plan’s registration were references to removal of a food business from the coverage of the plan.

    Compare: 1999 No 93 s 28A

68 Surrender of registration
  • (1) The operator of a registered food control plan may, at any time, surrender the plan’s registration by written notice to the registration authority.

    (2) As soon as practicable after being notified of a surrender under subsection (1), the registration authority must record the surrender on the relevant public register.

    (2) If the registration authority is not the chief executive and is notified of a surrender under subsection (1), the registration authority must, as soon as practicable after being notified, notify the chief executive of the surrender.

    (3) A surrender does not affect any other actions that the registration authority may take under this Act.

    Compare: 1999 No 93 s 29(1)

69 Effective date of surrender
  • A surrender takes effect—

    • (a) on the date specified in the notice given to the registration authority under section 68(1), which must be a date later than the date of the notice; or

    • (b) if no date is specified, on the date on which the registration authority receives that notice.

Subpart 3National programmes

Preliminary

70 Purpose of this subpart
  • The purpose of this subpart is to set out provisions about the nature, content, and effect of a national programme.

National programmes

71 National programme: general description
  • (1) A national programme is a programme designed to identify, control, manage, and eliminate or minimise hazards or other relevant factors for the purpose of achieving safe and suitable food by—

    • (a) imposing controls on a food business in relation to matters such as (without limitation) good operating practice, documentation requirements, verification requirements, and registration requirements; and

    • (b) managing the relevant risks in a manner that ensures the level of control placed on food businesses in a food sector is, among other things, proportional to the level of risk that the food sector generally poses to public health.

    (2) A national programme must require every person or food business that is subject to it to comply with the applicable requirements of this Act.

    (3) A national programme may be 1 of the 3 levels specified in section 20(3)(b) and each of those levels may differ in the level of control or the set of requirements that it imposes, depending on how high or low the level is.

    (4) Accordingly, a level 3 national programme generally imposes a higher level of control on a food business than a level 2 or level 1 national programme, and a level 2 national programme generally imposes a higher level of control than a level 1 national programme.

72 How national programme may be imposed
  • (1) A national programme may be imposed by regulations made under section 73 and, if required, supplemented by specifications set by the chief executive by notice under section 367.

    (2) Any regulations or specifications referred to in subsection (1) may—

    • (a) apply to particular food businesses or food sectors or to classes of food businesses or food sectors:

    • (b) specify different requirements for different food businesses or food sectors or different classes of food businesses or food sectors:

    • (c) make different provision for different food businesses or food sectors or classes of food businesses or food sectors.

    (3) To avoid doubt, section 367(6) applies if the chief executive issues a notice setting specifications for the purposes of subsection (1).

    Compare: 1999 No 93 ss 38(2), 39(3), (4)

73 Regulations about national programmes
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

    • (a) stating the scope and purpose of a national programme for each of the levels of national programmes specified in section 20(3)(b):

    • (b) prescribing controls, restrictions, requirements, and prohibitions in relation to a food sector, including provisions about how a food sector must manage or deal with risks that arise from trading in food:

    • (c) prescribing verification requirements, including provisions that deal with the frequency, intensity, and cost of verification and that require a person to allow verifiers on to premises for the purpose of carrying out verifications:

    • (d) prescribing requirements for the registration of information and providing for the manner and form in which a person must register information:

    • (e) prescribing procedures and requirements for the registration of food businesses, including who the appropriate registration authority should be, the form and content of registration, and the fees and charges payable for registration (if any):

    • (f) setting out criteria for the registration of a food business that is subject to a national programme, including criteria for refusing registration and the consequences of the refusal:

    • (g) providing for conditions to prescribing conditions, or restrictions on conditions, that may be imposed by the registration authority on the registration of a food business that is subject to a national programme:

    • (h) prescribing procedures, criteria, and other requirements for the mandatory or voluntary suspension, cancellation, and surrender of the registration of a food business that is subject to a national programme, including providing for the date on which the suspension, cancellation, or surrender takes effect:

    • (i) prescribing the duration of the registration of a food business that is subject to a national programme:

    • (j) providing for any other matters that may be necessary or desirable to give effect to or to administer the registration of a food business that is subject to a national programme:

    • (k) prescribing requirements relating to the safety and suitability of food and to good operating practice:

    • (l) requiring persons who operate food businesses to undergo training courses on the safety and suitability of food, and to provide training for staff as appropriate:

    • (l) requiring persons who operate under a national programme to demonstrate competency, in relation to the safety and suitability of food, food production, and food processing and handling, to undergo appropriate training, and to provide training for staff as appropriate:

    • (m) requiring the supervision of certain specified persons and the use of equipment in certain specified circumstances:

    • (n) requiring persons subject to a national programme to collect and keep certain records and documents in relation to the programme and to prepare reports about those records and documents:

    • (o) requiring reports to be made in respect of breaches of a national programme:

    • (p) requiring samples and tests to be carried out in relation to matters under a national programme and for the results of those tests to be reported to the chief executive:

    • (q) prescribing any other matters that may be necessary to ensure that a national programme effectively minimises and manages risks to public health and protects and promotes public health:

    • (r) prescribing any other matters that may be necessary for the purpose of giving effect to a national programme.

    (2) Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

    Compare: 1999 No 93 s 39(1)

74 National programme not invalid on certain grounds
  • A national programme may not be held invalid merely because it—

    • (a) confers any discretion on, or allows any matter to be determined or approved by, the Minister, the chief executive, the registration authority, or any food safety officer; or

    • (b) allows the Minister or the chief executive to impose specifications or other requirements as to the performance of any activities.

    Compare: 1999 No 93 s 39(2)

75 Requirements of national programme to prevail in cases of inconsistency with other regulations or specifications made under this Act
  • If there is any inconsistency between the requirements of a national programme and the provisions of any other regulations or specifications made under this Act, the requirements of the national programme prevail.

Requirement for food businesses subject to national programme to register

76 Food businesses subject to national programme must be registered
  • An operator of a food business that is subject to a national programme must—

    • (a) register the food business in accordance with section 79; and

    • (b) ensure that the food business is registered before it trades in food.

76 Food businesses subject to national programme must be registered
  • An operator of a food business that is subject to a national programme must ensure that the food business is registered with the appropriate registration authority under section 79F.

Duties of operators of food businesses subject to national programme

77 Duties of operators of food businesses subject to national programme
  • The operator of a food business subject to a national programme must—

    • (a) comply with sections 76 and 78 this section and section 78:

    • (b) ensure that the operations of the food business comply with the relevant requirements set out in the national programme:

    • (c) ensure that the operations of the food business comply with the applicable requirements of this Act:

    • (d) adequately implement and resource all operations under the national programme, including provision for the instruction, competency, training, and supervision of staff to achieve the safety and suitability of food instructing, training, and supervising staff to achieve the safety and suitability of food and ensuring that staff have the necessary competency to achieve that purpose:

    • (e) ensure that, after commencement of the operations to which the national programme registration relates, compliance of the food business with the national programme is verified by an appropriate recognised agency or recognised person and with the frequency required in the national programme:

    • (f) give relevant recognised persons the freedom and access that will allow them to carry out their functions and activities under this Act (including verification functions and activities):

    • (f) comply with sections 262 and 262A:

    • (g) keep a copy of all documents required to be kept under the national programme.

78 Operators of food businesses subject to national programme must notify registration authority of significant change in circumstances
  • (1) The operator of a food business subject to a national programme must give written notice to the registration authority of any significant change in circumstances within the time specified in a notice under section 367.

    (1A) The notice under subsection (1) must be given—

    • (a) before the significant change in circumstances occurs; or

    • (b) if compliance with paragraph (a) is not practicable, as soon as practicable after the significant change in circumstances occurs but, in any event, not later than 10 working days after the change occurs.

    (2) In this section, significant change in circumstances

    • (a) means any change in the nature of the food business that would impact on the level of national programme applicable to that food business or would require it to operate under a food control plan; and

    • (b) includes—

      • (i) any change that a notice issued under section 367 specifies to be a significant change of circumstances for the purposes of this section:

      • (ii) any change in the ownership or control of the food business (but not in a company’s shareholding, unless the change in shareholding results in control of the company passing to 1 or more different persons):

      • (iii) any change to the verifier or verification agency for the food business.

    • (a) means—

      • (i) any change in any of the information that the operator has provided under section 79A(b) to (h) in respect of the application for registration of the food business:

      • (ii) any change in the nature of the food business that would affect the level of national programme applicable to that food business or would require it to operate under a food control plan; and

    • (b) includes the death, bankruptcy, receivership, voluntary administration, or liquidation of the operator of the food business.

    (3) If subsection (2)(b) applies, the person who assumes control of the food business must give the written notice required by subsection (1).

Registration of food businesses subject to national programme

79 Registration of food business
  • (1) An operator of a food business that is subject to a national programme must register the food business with the appropriate registration authority in accordance with regulations made under section 73.

    (2) The appropriate registration authority is either the chief executive or the relevant territorial authority, as provided for by those regulations.

    (3) If the registration authority decides to register a food business that is subject to a national programme, the registration authority must, as soon as practicable,—

    • (a) enter the name of the operator of the food business, and the date of registration, on the relevant public register; and

    • (b) give the operator written notice of the date on which the registration takes effect and the conditions of registration (if any) imposed by the registration authority.

    (4) The registration of a food business applies only to the particular operator concerned and—

    • (a) may not be transferred to a different operator; and

    • (b) may not vest by operation of law in any person other than the operator.

79 Application for registration: who is appropriate registration authority
  • The appropriate registration authority is either the chief executive or the relevant territorial authority, as provided for by regulations made under section 73.

79A Application for registration: form and content
  • An application for registration must—

    • (a) be made in writing in a form or manner approved by the appropriate registration authority; and

    • (b) include the full name and business address (including the electronic address, if available) of the operator of the food business; and

    • (c) include the operator's physical and electronic address for the purposes of section 340(3)(a); and

    • (d) include the trading name of the food business; and

    • (e) include the physical address or, if appropriate, the location of the food business or its nominated home base; and

    • (f) include the position or designation of the person who is responsible for the day-to-day management of the food business, as nominated by the person in control of the food business; and

    • (g) include the scope of the operations of the food business; and

    • (h) include confirmation of the verifier or verification agency that will carry out the verification functions in respect of the food business; and

    • (i) include any further information or other material (including declarations, if appropriate) that may be required by notice under section 367 or by regulations made under this Act; and

    • (j) be accompanied by the fee (if any) that is prescribed or set under section 175 or 176.

79B Registration authority may refuse to process application for registration
  • The registration authority may refuse to process an application for registration if the applicant does not provide an application that complies with section 79A.

79C Registration authority may require further information
  • (1) The registration authority may require an applicant to supply further information or material before determining whether or not to register the food business to which the applicant's application for registration relates.

    (2) An application for registration lapses if the information or material is not supplied—

    • (a) within 3 months after the date of the requirement; or

    • (b) within any further time that the registration authority allows.

79D Criteria for registration of food business subject to national programme
  • The registration authority must register a food business that is subject to a national programme if satisfied that—

    • (a) the relevant application for registration complies with section 79A; and

    • (b) the operator of the food business is a New Zealand resident (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007).

79E Refusal to register food business subject to national programme
  • (1) If the registration authority proposes to refuse to register a food business that is subject to a national programme, the registration authority must give the applicant concerned—

    • (a) a written notice that clearly informs the applicant of the grounds proposed for refusal; and

    • (b) a reasonable opportunity to make written submissions.

    (2) If the registration authority finally determines to refuse to register the food business, the registration authority must, as soon as practicable, give the applicant written notice of—

    • (a) the decision and the reason for it; and

    • (b) the applicant’s right to seek a review of the decision under section 325.

79F Registration of food business subject to national programme
  • (1) If the registration authority is the chief executive and decides to register a food business that is subject to a national programme, the registration authority must, as soon as practicable,—

    • (a) enter the information required by clause 7 of Schedule 5 on the relevant public register; and

    • (b) give the operator written notice specifying the date on which the registration takes effect, the duration of registration (if prescribed by regulations made under section 73(1)(i)), and any conditions imposed under section 79G.

    (2) If the registration authority is not the chief executive and decides to register a food business that is subject to a national programme, the registration authority must, as soon as practicable,—

    • (a) provide to the chief executive for entry on the relevant public register the details of the food business, as required for the purposes of clause 7 of Schedule 5, and the date of registration of the food business and (if prescribed by regulations made under section 73(1)(i)) the duration of registration; and

    • (b) give the operator written notice specifying the date on which the registration takes effect and the conditions of registration (if any) imposed by the registration authority.

    (3) The chief executive must, as soon as practicable after being notified, enter on the relevant public register the details as required by clause 7 of Schedule 5.

    (4) The registration of a food business may be renewed in accordance with Part 2 of Schedule 4.

79G Registration authority may impose conditions on registration of food business
  • (1) The registration authority may register a food business subject to any reasonable conditions that it may specify.

    (2) The registration authority may, at any time, vary any conditions imposed in respect of the food business.

    (2A) However, if regulations have been made under section 73(1)(g), the conditions must comply with those regulations.

    (3) If the registration authority imposes or varies conditions under this section, the registration authority must, as soon as practicable, give the operator of the food business in question written notice of—

    • (a) the conditions and the reason for imposing or varying them; and

    • (b) the operator's right to seek a review of the conditions under section 325.

    (4) In this section, vary means—

    • (a) to impose additional conditions; or

    • (b) to revoke or amend any conditions.

Suspension of operations of registered food business under national programme

80 Mandatory suspension
  • The registration authority may, at any time, suspend all or any operations of a registered food business that is subject to a national programme in accordance with regulations made under section 73.

81 Voluntary suspension
  • If the operator of a registered food business that is subject to a national programme wishes to suspend all operations of the food business under the national programme, the operator must suspend those operations in accordance with regulations made under section 73.

80 Mandatory suspension
  • (1) The registration authority may, at any time, suspend all or any operations of a registered food business that is subject to a national programme in accordance with clause 4 of Schedule 4 if it has reasonable grounds to believe that—

    • (a) the food traded by the food business does not meet, or no longer meets, the applicable requirements of this Act; or

    • (b) the food traded by the food business may pose a risk to human life or public health; or

    • (c) there is or has been a serious failure of operations or there are or have been other matters (including non-compliance with the conditions of registration) under the national programme that cast doubt on the safety and suitability of food traded by the food business.

    (2) The maximum period of suspension under this section is 3 months.

81 Registration authority may extend mandatory suspension
  • (1) The registration authority may extend the period of a suspension under section 80 in accordance with clause 5 of Schedule 4 if the registration authority considers it necessary in the circumstances.

    (2) The period of extension—

    • (a) may be for any further period that the registration authority notifies in writing to the operator of the food business before the expiry of the original suspension; but

    • (b) must not exceed 3 months.

81A Voluntary suspension
  • (1) If the operator of a registered food business that is subject to a national programme wishes to suspend all operations of the food business under the national programme, the operator must suspend those operations in accordance with clause 7 of Schedule 4.

    (2) The suspension must be for a period of at least 3 months, but the operator may extend the period of suspension.

    (3) The maximum period of suspension under this section is 12 months.

81B Effect of suspension
  • (1) If all or any operations of a registered food business that is subject to a national programme are suspended under section 80 or 81A or the suspension is extended under section 81, the registration authority may—

    • (a) direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

    • (b) direct the operator of the food business, or the person in control of any affected food, food-related accessory, or operations of the food business, to take appropriate action to deal with the affected food, food-related accessory, or operations; and

    • (c) exercise any of the relevant powers under section 253.

    (2) Section 253 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

    (2A) The registration authority must ensure that, during the period of suspension, the suspension is recorded on the relevant public register.

    (3) A suspension under section 80 or 81A does not affect any other actions that the registration authority may take under this Act.

Removal of registration of food business

82 Removal from public register
  • The registration authority must remove a food business that is subject to a national programme from the relevant public register if the registration authority—

    • (a) cancels the registration of the food business under section 83; or

    • (b) records the surrender of the registration of the food business under section 84.

    (1) This section applies to a food business that is subject to a national programme if the chief executive—

    • (a) cancels the registration of the food business under section 83 or is notified of its cancellation by a registration authority under section 83(2)(b); or

    • (b) is notified of the surrender of the registration of the food business under section 84B, either by notice by the operator of the business under section 84B(1) or notice by the registration authority under section 84B(2).

    (2) As soon as practicable after this section applies to a food business, the chief executive must—

    • (a) record the cancellation or surrender on the relevant public register; and

    • (b) remove the food business from the relevant public register.

83 Cancellation of registration
  • The registration authority may cancel the registration of a food business that is subject to a national programme in accordance with regulations made under section 73.

84 Surrender of registration
  • The operator of a registered food business that is subject to a national programme may, at any time, surrender the registration of the food business in accordance with regulations made under section 73.

83 Cancellation of registration
  • (1) The registration authority may cancel the registration of a food business that is subject to a national programme in accordance with Part 4 of Schedule 4 if satisfied that—

    • (a) suspending operations of the food business under section 80 would be justified, but it would be more appropriate to cancel the registration of the food business because of—

      • (i) the failure of the operator of the food business to properly attend to matters that would lead to the suspension; or

      • (ii) repeated suspensions in the past under that section; or

    • (b) the period of a suspension of the food business under section 80 has expired, but the operator of the food business has failed to properly attend to matters that led to the suspension of operations and there are no reasonable grounds for believing that the operator would properly attend to those matters; or

    • (c) the operator of the food business has ceased to operate as a producer, processor, or seller of food and has either—

      • (i) surrendered the registration of the food business; or

      • (ii) failed to surrender the registration of the food business despite reasonable efforts by the registration authority to contact the operator; or

    • (d) the operator of the food business has failed to pay any fees or charges imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

    (2) If the registration authority decides to cancel the registration of a food business that is subject to a national programme, the registration authority must, as soon as practicable, give written notice of the cancellation to—

    • (a) the appropriate verifier or verification agency (if any); and

    • (b) the chief executive, if the registration authority is not the chief executive.

84 Effective date of cancellation
  • The cancellation of the registration of a food business that is subject to a national programme takes effect on the date specified by the registration authority in the notice given to the operator of the food business under clause 10(1)(d) of Schedule 4, which must be a date after the date of that notice.

84A Effect of cancellation of registration
  • (1) If the registration of a food business that is subject to a national programme is cancelled, the registration authority may—

    • (a) direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

    • (b) direct the operator of the food business or person in control of any affected food, food-related accessories, or operations of the food business to take appropriate action to deal with the affected food, food-related accessories, or operations; and

    • (c) exercise any of the other powers under section 253.

    (2) Section 253 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

    (3) A cancellation of registration does not affect any other actions that the registration authority may take under this Act.

84B Surrender of registration
  • (1) The operator of a food business that is subject to a national programme may, at any time, surrender the registration of the food business by written notice to the registration authority.

    (2) If the registration authority is not the chief executive and is notified of a surrender under subsection (1), the registration authority must, as soon as practicable after being notified, notify the chief executive of the surrender.

    (3) A surrender does not affect any other actions that the registration authority may take under this Act.

84C Effective date of surrender
  • A surrender takes effect—

    • (a) on the date specified in the notice given to the registration authority under section 84B(1), which must be a date later than the date of the notice; or

    • (b) if no date is specified, on the date on which the registration authority receives that notice.

Subpart 4Monitoring programmes

85 Purpose of this subpart
  • The purpose of this subpart is to set out provisions about the nature, content, and effect of a monitoring programme.

86 Monitoring programme: general description
  • (1) A monitoring programme is used to impose, in the circumstances described in subsection (2), monitoring measures and related activities that are necessary—

    • (a) for determining the safety or suitability of food; and or

    • (b) for ensuring the effectiveness of the food safety regime; and or

    • (c) for enhancing, or determining the need for, adopted joint food standards, domestic food standards, or national outcomes; and or

    • (d) for determining regulatory performance against the objectives of minimising and managing the food risks in respect of public health.

    (2) The circumstances are as follows:

    • (a) the monitoring measures and related activities need to be provided for on a sector or industry basis because food businesses in the sector or industry are not generally subject to the requirement to operate under a food control plan or a national programme; or

    • (b) it is not feasible or practicable to provide for the monitoring measures and related activities by means of other risk-based measures.

    (3) A monitoring programme may be imposed on any food sector despite the fact that the sector is already subject to other risk-based measures a risk-based measure.

87 Monitoring programme: scope
  • A monitoring programme must specify its purpose, and may—

    • (a) apply to all or any class or classes of importer, food, persons or business, process or operation, place, or area:

    • (b) set out how monitoring will take place:

    • (c) provide for matters such as surveying, monitoring, surveillance, data collection, sampling, and testing of or in relation to food and any thing in the environment:

    • (d) provide for reporting requirements relating to certain results (including specified contaminants or pathogens in food):

    • (e) authorise or provide for technical matters and specifications and matters of detail to be specified by the chief executive by notice under section 367:

    • (f) authorise or provide for operational matters to give effect to the monitoring programme (for example, periodic sampling plans).

88 How monitoring programme may be imposed
  • (1) A monitoring programme may be imposed by way of—

    • (a) regulations made under section 347 on the recommendation of the Minister; and

    • (b)  if required, a notice issued by the chief executive under section 89.

    (2) Any regulations or notice referred to in subsection (1) may be supplemented by specifications set by the chief executive by notice under section 367, which may provide for any other matters necessary to give effect to the monitoring programme that have not been provided for by the chief executive in the notice referred to in subsection (1)(b).

    (3) Any regulations referred to in subsection (1)(a) may authorise the chief executive to exempt, after taking into account the matters specified in subsection (4), any person or group of persons from compliance with, or from the application of, any provisions of a monitoring programme.

    (4) The matters referred to in subsection (3) are—

    • (a) the circumstances specified in section 86(2); and

    • (b) the particular circumstances of the person or group of persons that would make it unreasonable or impracticable for them to comply with the monitoring programme.

    (5) Before recommending the making of regulations under section 347, the Minister must—

    • (a) be satisfied that 1 or both of the circumstances specified in section 86(2) apply; and

    • (b) be satisfied that the monitoring programme is a cost-effective way of providing for the monitoring measures and related activities; and

    • (c) take into account the following matters:

      • (i) the need to meet the purpose of this Act:

      • (ii) the relative cost of having the monitoring programme or not having it, and who bears the cost:

      • (iii) any other matters that the Minister considers relevant; and

    • (d)  be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

    Compare: 1999 No 93 ss 38(2), 39(3), (4)

88 Regulations about monitoring programmes
  • (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or both of the following purposes:

    • (a) prescribing 1 or more monitoring programmes:

    • (b) authorising the chief executive to exempt, after taking into account the matters specified in subsection (2), any person or group of persons from compliance with, or from the application of, any provisions of a monitoring programme.

    (2) The matters referred to in subsection (1)(b) are—

    • (a) the circumstances specified in section 86(2); and

    • (b) the particular circumstances of the person or group of persons that would make it unreasonable or impracticable for them to comply with the monitoring programme.

    (3) Before recommending the making of regulations under this section, the Minister must—

    • (a) be satisfied that 1 or both of the circumstances specified in section 86(2) apply; and

    • (b) be satisfied that the monitoring programme is a cost-effective way of providing for the monitoring measures and related activities; and

    • (c) take into account the following matters:

      • (i) the need to meet the purpose of this Act:

      • (ii) the relative cost of having the monitoring programme or not having it, and who bears the cost:

      • (iii) any other matters that the Minister considers relevant; and

    • (d) be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

    Compare: 1999 No 93 s 39(3), (4)

89 Chief executive may specify certain matters by notice
  • (1) For the purpose of giving effect to a monitoring programme, the chief executive may issue a notice that specifies, by notice under section 367, specify the following matters that are necessary to give effect to the matters provided for in section 87:

    • (a) sampling plans:

    • (b) sampling regimes:

    • (c) test methodologies:

    • (d) competencies:

    • (e) procedures to be followed:

    • (f) reporting:

    • (g) provision of information:

    • (h) surveillance and the consequences of surveillance.

    (2) The chief executive may, by notice under section 367, supplement any regulations referred to in section 88 by providing for any other matters necessary to give effect to the monitoring programme that have not been provided for by the regulations.

    (3) A notice referred to in subsection (1) or (2) must not be inconsistent with the regulations.

90 Monitoring programme not invalid on certain grounds
  • A monitoring programme may not be held invalid merely because it—

    • (a) confers any discretion on, or allows any matter to be determined or approved by, the Minister, the chief executive, or any food safety officer; or

    • (b) allows the Minister or the chief executive to impose specifications or other requirements as to the performance of any activities.

    Compare: 1999 No 93 s 39(2)

Subpart 5Food handler guidance

91 Purpose of this subpart
  • The purpose of this subpart is to set out provisions about the nature and effect of food handler guidance.

92 Food handler guidance: general description
  • (1) Food handler guidance

    • (a) is guidance issued by a registration authority about the steps that are necessary to achieve safe and suitable food; and

    • (b) is intended to be educative only; and

    • (c) does not, on its own, impose any duties on a person or food business that is subject to it.

    (2) The following are subject to food handler guidance:

    • (a) food businesses in food sectors classified in Schedule 3:

    • (b) persons to whom section 94 applies (that is, persons involved in community-based fund-raising events):

    • (c) persons who are exempted under section 95 from the requirement to operate under a registered food control plan or a national programme.

93 Food handler guidance: effect
  • (1) A person or food business that is subject to food handler guidance—

    • (a) is not required to operate under a risk management tool; and

    • (b) is not subject to the verification requirements of this Act.

    (2) However, a person or food business that is subject to food handler guidance—

    • (a) must comply with any other applicable requirements of this Act; and

    • (b) is liable to prosecution if the failure to comply with those requirements is an offence against this Act.

94 Exemption for certain persons involved in community-based fund-raising activities
  • (1) This section applies to a person—

    • (a) who is not ordinarily in the business of trading in food; but

    • (b) who—

      • (i) organises or conducts a community-based fund-raising activity; or

      • (ii) trades in food in connection with, or as part of, that activity.

    (2) A person to whom this section applies is exempt from the requirement to operate under a registered food control plan or a national programme in respect of the community-based fund-raising activity.

    (3) However, the person must operate under any food handler guidance that applies to any trading in food being carried out in connection with, or as part of, the community-based fund-raising activity.

    (4) In this section, community-based fund-raising activity

    • (a) means an activity that is held or conducted by a non-profit community organisation for the sole purpose of raising funds for the benefit of the community or a significant section of the community; and

    • (b) includes, for example, sausage sizzles and preparing and selling home baking or home preserves for a charity fund-raiser or church bazaar.

95 Chief executive may grant exemption from requirement to operate under registered food control plan or national programme
  • (1) The chief executive may exempt any person, group of persons, or any type or description of food business within a food sector from the requirement to operate under a registered food control plan or a national programme—

    • (a) on his or her own initiative; or

    • (b) on application by any person.

    (2) The chief executive may grant an exemption on application only if he or she is satisfied that the person, group of persons, or food business concerned—

    • (a) has demonstrated a valid and appropriate reason to operate under food handler guidance that outweighs the public interest in maintaining consistency of treatment of persons and food businesses in the same food sector; and

    • (b) has demonstrated understanding and awareness of the importance of hazards and other factors that are relevant in achieving safe and suitable food.

    (3) In determining whether to grant an exemption (whether on application or on his or her own initiative), the chief executive must take into account the following matters:

    • (a) the hazards and other factors that are relevant in achieving safe and suitable food:

    • (b) the potential impact on consumers:

    • (c) the frequency of operation:

    • (d) the feasibility, effectiveness, and efficiency of operating under a food control plan or a national programme:

    • (e) the appropriateness of regulatory control in comparison with controls specified for similar food sectors or types or descriptions of food business:

    • (f) any other matters that the chief executive considers relevant.

    (4) An exemption—

    • (a) must be granted by notice under section 367; and

    • (b) may be amended or revoked at any time by the chief executive by further notice under section 367; and

    • (c) applies during the period (if any) specified in the notice; and

    • (d) is subject to conditions (if any) that may be specified in the notice.

    Compare: 1999 No 93 s 14

96 Chief executive may delegate functions, duties, or powers under section 95 to territorial authorities
  • (1) The chief executive may delegate any of the chief executive's functions, duties, or powers under section 95 to any officer or employee of a territorial authority or to any officers or employees of more than 1 territorial authority.

    (2) A person to whom any functions, duties, or powers are delegated under this section may perform those functions and duties, or exercise those powers, in the same manner and with the same effect as if they had been imposed or conferred on that person directly by this Act and not by delegation.

    (3) However, a delegation under this section may be made on any terms and conditions that the chief executive thinks fit, and may be revoked at any time by notice to the delegate.

    (4) A person acting under the delegation is presumed to be acting in accordance with its terms in the absence of proof to the contrary.

    (5) A delegation under this section may be made to—

    • (a) a specified person or persons of a specified class; or

    • (b) the holder or holders for the time being of a specified office or position, or of a specified class of offices or positions.

    (6) A delegation under this section does not affect—

    • (a) the performance of any function or duty, or the exercise of any power, by the chief executive; or

    • (b) the responsibility of the chief executive for the actions of a person acting under the delegation.

Part 3
Food imported for purpose of sale

Preliminary

97 Purpose of this Part
  • The purpose of this Part is—

    • (a) to require the safety and suitability of food imported for the purpose of sale; and

    • (b) to provide for the registration of certain importers of that food.

98 Interpretation
  • In this Part, a reference to food imported for the purpose of sale includes a reference to food that—

    • (a) is imported for processing and handling; and

    • (b) is then subsequently exported.

99 Restriction on importation of food for purpose of sale
  • (1) A person (person A) must not import any food for the purpose of sale unless—

    • (a) person Athe person is a registered importer; or

    • (b) if person Athe person is not a registered importer, person Athe person is importing the food through an agent who is a registered importer.

    (2) The importation of food in a quantity that is more than that which a reasonable person would consider to be reasonably required for the purpose of personal consumption must, unless the contrary is proved, be treated as an importation of the food for the purpose of sale.

100 Food clearance
  • (1) A food safety officer may give any imported food a clearance for entry into New Zealand if subsection (2) or (3) applies.

    (2) This subsection applies if all of the following apply:

    • (a) the importer of the food—

      • (i) is a registered importer; or

      • (ii) is acting through an agent who is a registered importer; and

    • (b) any regulations made under section 350 are complied with; and

    • (c) any applicable notices issued under section 367 are complied with; and

    • (d) there are no discrepancies that suggest that it may be unwise for the food safety officer to rely on the documentation accompanying the food, either—

      • (i) in the documentation itself; or

      • (ii) between the documentation and the food.

    (3) This subsection applies if the importer has made a declaration a food safety officer is satisfied (including, but not exclusively, by declaration by the importer) that the food is not imported for the purpose of sale.

    (4) A food safety officer may give a clearance for entry under this section—

    • (a) unconditionally; or

    • (b) subject to any conditions that the food safety officer thinks necessary or desirable to achieve the safety and suitability of food.

    (5) A clearance for entry given under this section does not affect the application of the provisions of any other Act.

Duties of importers and registered importers

101 Duties of importer
  • (1) An importer of food for the purpose of sale must—

    • (a) ensure that the importer’s operations comply with any applicable requirements of this Act; and

    • (b) import only food that meets all applicable requirements of this Act, including the requirement—

      • (i) to maintain procedures and processes to demonstrate that the record-keeping requirements of this Act in relation to the source or traceability and processing and handling of the food imported by the importer are being complied with; and

      • (ii) to give relevant recognised persons the freedom and access that will allow them to carry out their functions and activities under this Act (including verification functions and activities).

    • (b) import only food that meets all applicable requirements of this Act; and

    • (c) maintain procedures and processes to demonstrate that the record-keeping requirements of this Act in relation to the source or traceability and processing and handling of the food imported by the importer are being complied with; and

    • (d) comply with section 262 and comply with section 262A, which, if the importer's food business is not operating under a risk-based measure, applies as if the reference to a recognised person (other than a verifier) were a reference to any recognised person (including a verifier).

    (2) To avoid doubt, subsection (1) applies whether or not the importer is registered under this Act.

    Compare: 1999 No 93 s 51

102 Duty of registered importer
  • Without limiting section 101, a registered importer must comply with any applicable requirements of this Act.

Registration of importers

103 Who must be registered
  • For every consignment of food imported for sale into New Zealand, there must be a person resident in New Zealand who is a New Zealand resident (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007) and who is registered as an importer under this Act.

104 Application for registration
  • An application for registration must—

    • (a) be made in writing to the chief executive in a form or manner approved by specified by the chief executive by notice under section 367; and

    • (aa) include the applicant's name, trading name, and business address (including the electronic address, if available); and

    • (ab) include the applicant's physical and electronic address for the purposes of section 340(3)(a); and

    • (b) be accompanied by the prescribed fee (if any).

105 Chief executive may refuse to process application for registration
  • The chief executive may refuse to process an application for registration if the applicant does not provide an application that complies with section 104.

106 Chief executive may require further information
  • (1) The chief executive may require an applicant to supply further information or material before determining whether or not to register the applicant.

    (2) An application for registration lapses if the information or material is not supplied—

    • (a) within 3 months after the date of the requirement; or

    • (b) within any further time that the chief executive may allow by written notice to the applicant.

    Compare: 1999 No 93 s 54(4), (5)

107 Criteria for approval of application for registration
  • (1) The chief executive must approve an application for registration that complies with section 104 if satisfied that the applicant is a fit and proper person to be registered as an importer.

    (2) In determining whether an applicant is a fit and proper person for the purposes of subsection (1), the chief executive must may take into account all of the following matters:

    • (a) any specified conviction entered against the applicant or any director or manager or against any director, manager, or significant shareholder of the applicant:

    • (b) whether there has in the past been a serious or repeated failure by the applicant, or by any director, manager, or significant shareholder of the applicant, to comply with the duties of an importer in section 101 or the duty of a registered importer in section 102:

    • (c) whether there are other grounds for considering that the applicant is likely in the future to fail to comply with those duties:

    • (d) any other matters that the chief executive considers relevant.

    (3) In this section, significant shareholder means a shareholder whose shareholding in the applicant enables the shareholder to exercise control over the affairs of the applicant.

108 Refusal to register
  • (1) If the chief executive proposes to refuse to register an applicant, the chief executive must give the applicant—

    • (a) a written notice that clearly informs the applicant of the grounds proposed for refusal; and

    • (b) a reasonable opportunity to make written submissions.

    (2) If the chief executive finally determines to refuse to register the applicant, the chief executive must, as soon as practicable, give the applicant written notice of—

    • (a) the decision and the reason for it; and

    • (b) the applicant’s right to seek a review of the decision under section 325.

    Compare: 1999 No 93 s 56

109 Registration
  • If the chief executive approves an application for registration, the chief executive must, as soon as practicable,—

    • (a) enter the applicant’s name and the date of registration the information required by clause 13 of Schedule 5 on the relevant public register; and

    • (b) give the applicant written notice of specifying the date on which the registration takes effect and the duration of the registration.

110 Duration of registration
  • (1) An importer’s registration is effective from the date of registration until—

    • (a) the date that is 12 months after the date of registration; or

    • (b) a later date specified by the chief executive by written notice to the importer.

    (2) Subsection (1) applies unless the registration—

    • (a) is cancelled under section 118; or

    • (b) is surrendered under section 121.

    (3) The registration may be renewed for further periods in accordance with Part 2 of Schedule 4.

111 Registration may not be transferred
  • An importer’s registration—

    • (a) may not be transferred to any other person; and

    • (b) may not vest by operation of law in any person other than the importer registered under this Act.

112 Registered importers must notify chief executive of significant change in circumstances
  • (1) A registered importer must give written notice to the chief executive of any significant change in circumstances within 10 working days after the change.

    (2) In this section, significant change in circumstances

    • (a) means—

      • (i) any change in the information that the registered importer has provided under sections 104 and 106 for an application for registration:

      • (ii) any matter that results may result in that person not meeting the criteria under section 107; and

    • (b) includes any change that a notice issued under section 367 specifies to be a significant change of circumstances for the purposes of this section.

    • (b) includes the death, bankruptcy, receivership, voluntary administration, or liquidation of the registered importer.

    (3) In a case to which subsection (2)(b) applies, the person who assumes control of the importer's business must give the notice under subsection (1).

Suspension of registered importer’s operations

113 Mandatory suspension
  • (1) The chief executive may, at any time, suspend all or any specified part of a registered importer’s operations in accordance with clause 4 of Schedule 4 if the chief executive considers that—

    • (a) the food imported by the importer may pose a risk to human life or public health; or

    • (b) there is or has been a serious failure of operations or there are or have been other matters that cast doubt on the safety and suitability of the food imported by the importer.

    (2) The maximum period of suspension under this section is 3 months.

114 Chief executive may extend mandatory suspension
  • (1) The chief executive may, in accordance with clause 5 of Schedule 4, extend the period of a suspension under section 113 if the chief executive considers it necessary in the circumstances.

    (2) The period of extension—

    • (a) may be for any further period that the chief executive notifies to the registered importer in writing before the expiry of the original suspension; but

    • (b) must not exceed a further 3 months.

115 Voluntary suspension
  • (1) A registered importer may, at any time, suspend all of the importer’s operations in accordance with clause 7 of Schedule 4.

    (2) The suspension must be for a period of at least 3 months, unless the chief executive approves a period of suspension shorter than 3 months.

    (3) The registered importer may extend the period of suspension up to a maximum period of 12 months.

116 Effect of suspension
  • (1) If all or any of a registered importer’s operations are suspended under section 113 or 115 or the period of a suspension of any operations is extended under section 114, the chief executive may—

    • (a) direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

    • (b) direct the registered importer to take appropriate action to deal with the affected food; and

    • (c) exercise any of the relevant powers under section 253.

    (1A) The chief executive must ensure that, during the period of suspension, the suspension is recorded on the relevant public register.

    (2) A suspension under section 113 or 115 or an extension of a period of a suspension of any operations under section 114 does not affect any other actions that the chief executive may take under this Act.

Removal of importer’s registration

117 Removal from public register
  • The chief executive must remove an importer’s name from the relevant public register if the chief executive—

    • (a) cancels that importer’s registration under section 118; or

    • (b) records the surrender of that importer’s registration under section 121.

    (1) This section applies to an importer if the chief executive—

    • (a) cancels the importer's registration under section 118; or

    • (b) is notified of the surrender of the importer's registration under section 121.

    (2) As soon as practicable after this section applies to an importer, the chief executive must—

    • (a) record the cancellation or surrender on the relevant public register; and

    • (b) remove the importer from the relevant public register.

118 Cancellation of registration
  • (1) The chief executive may cancel the registration of an importer in accordance with Part 4 of Schedule 4 if satisfied that the importer—

    • (a) is no longer a fit and proper person to be registered, taking into account the matters referred to in section 107(2)(b) that—

      • (i) arose after the registration of the importer; or

      • (ii) first came to the attention of the chief executive after the registration of the importer; or

    • (b) has failed to pay any fees or charges imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

    (2) If the chief executive decides to cancel the registration of an importer, the chief executive must, as soon as practicable, give written notice of the cancellation to the appropriate verifier or verification agency (if any).

    Compare: 1999 No 93 s 58(1)

119 Effective date of cancellation
  • The cancellation of an importer’s registration takes effect on the date specified by the chief executive in the notice given to the importer under clause 10(1)(d) of Schedule 4, which must be a date after the date of that notice.

120 Effect of cancellation of registration
  • (1) If an importer's registration is cancelled, the chief executive may—

    • (a) direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

    • (b) direct the importer to take appropriate action to deal with any affected food, food-related accessories, or operations; and

    • (c) exercise any of the other powers under section 253.

    (2) A cancellation of registration does not affect any other actions that the chief executive may take under this Act.

    Compare: 1999 No 93 s 28(4), (5)

121 Surrender of registration
  • (1) An importer may, at any time, surrender that importer’s registration by written notice to the chief executive.

    (2) As soon as practicable after being notified of a surrender under subsection (1), the chief executive must record the surrender on the relevant public register.

    (2) A surrender does not affect any other actions that the chief executive may take under this Act.

122 Effective date of surrender
  • A surrender takes effect on the date stated in the relevant public register.

    A surrender takes effect—

    • (a) on the date specified in the notice given to the chief executive under section 121(1), which must be a date later than the date of the notice; or

    • (b) if no date is specified, on the date on which the chief executive receives that notice.

Provisions relating to border information supplied using JBMS

122A Border information supplied using JBMS must be supplied in approved form and manner
  • (1) This section applies to a requirement by or under this Act to supply to the Ministry any border information.

    (2) Any person who uses the JBMS (Joint Border Management System) to comply with the requirement (including, without limitation, by supplying the information to the Customs, or to an appointed agency, in accordance with section 41D or 41H of the Biosecurity Act 1993) must supply the information in a form and manner—

    • (a) for complying with the requirement by using the JBMS; and

    • (b) for the time being generally approved in writing by the chief executive.

    (3) The approved form and manner referred to in subsection (2)

    • (a) must be notified via an Internet site that is, so far as practicable, publicly available free of charge; and

    • (b) may be set out, for the information of registered JBMS users, in Customs rules under section 288(1)(j) of the Customs and Excise Act 1996.

    (4) In this section and section 122B,—

    border information and JBMS have the meanings given or referred to in section 41A(1) of the Biosecurity Act 1993

    Ministry has the meaning given in section 41A(1) of the Biosecurity Act 1993 and also has the meaning given in section 7(1) of this Act.

122B Duty to use JBMS to supply border information
  • (1) This section applies to a requirement by or under this Act to supply to the Ministry any border information.

    (2) After the commencement of this section, the only ways in which a person can comply with the requirement are—

    • (a) by using the JBMS; or

    • (b) by using another means for the time being generally or specifically approved in writing by the chief executive.

Part 4
Provisions relating to recognition, territorial authorities, administration, and enforcement

Subpart 1Recognised agencies and recognised persons

Preliminary

123 Purpose of this subpart
  • (1) The purpose of this subpart is to provide for the chief executive to recognise—

    • (a) agencies that—

      • (i) are responsible for managing and carrying out verification functions and activities and other specialist functions and activities; and

      • (ii) may manage and supply recognised persons; and

    • (b) persons who carry out—

      • (i) verification functions and activities; and

      • (ii) other specialist functions and activities.

    (2) To avoid doubt, a person may apply to be both a recognised agency and a recognised person under this subpart.

Duties of recognised agencies and recognised persons

124 Duties of recognised agencies
  • When carrying out the specified functions and activities for which it is recognised, a recognised agency must ensure that—

    • (a) it carries out only those functions and activities of a recognised agency that it has been recognised to carry out:

    • (b) the recognised persons it is responsible for managing (if any) continue to meet all applicable competency requirements:

    • (c) it is adequately resourced and its systems are maintained to a level that ensures it is able to carry out the functions and activities in relation to which it is recognised:

    • (d) it has documented policies and procedures to safeguard the confidentiality of the information obtained or created while carrying out its functions and activities:

    • (e) it has systems, processes, and procedures to manage appropriately any conflict of interest that might arise while carrying out its functions and activities:

    • (f) it complies with any applicable requirements of this Act.

125 Duties of recognised persons
  • When carrying out the specified functions and activities for which the person is recognised, a recognised person must ensure that the person—

    • (a) carries out only those functions and activities of a recognised person that the person has been recognised to carry out:

    • (b) maintains all applicable competency requirements:

    • (c) maintains an appropriate degree of impartiality and independence in carrying out the functions and activities that the person has been recognised to carry out:

    • (d) maintains appropriate confidentiality, particularly in respect of commercially sensitive matters, relating to operations and activities the person may come into contact with in the course of carrying out the functions and activities that the person has been recognised to carry out (except to the extent that the person is required to report under paragraph (e) or otherwise for the purposes of this Act), including matters relating to design, technology, systems, personnel, and practices:

    • (e) reports the following to the registration authority, in accordance with the applicable requirements of this Act:

      • (i) a failure to comply with, or any inadequacy in, a food control plan:

      • (ii) a failure to comply with a national programme:

      • (iii) a failure to comply with a monitoring programme:

      • (iv) any other matter that is required to be reported by a relevant recognised person by or under this Act:

    • (f) complies with any applicable requirements of this Act.

Recognition

126 Recognition of agency responsible for verification and other specialist functions and activities
  • (1) The chief executive may, on the application of a person or body, recognise that person or body as an agency that, for the purposes of this Act,—

    • (a) is responsible for the management and carrying out of either or both of the following:

      • (i) verification functions and activities:

      • (ii) other specialist functions and activities; and

    • (b) may manage and supply recognised persons to perform verification and other specialist functions and activities.

    (2) Without limiting subsection (1), the functions and activities that a person or body may be recognised for include—

    • (a) verification functions and activities in relation to—

      • (i) food control plans:

      • (ii) national programmes:

      • (iii) monitoring programmes:

    • (b) other verification functions and activities:

    • (c) the provision of independent evaluations of the validity of food control plans for the purposes of section 49(3)(b):

    • (d) other specialist functions and activities specified in a notice issued under section 367.

    (3) A person or body may be recognised as an agency under this section even though the persons managed by the agency have not been recognised to carry out the agency's functions.

    (4) Before granting recognition as an agency, the chief executive must be satisfied that the applicant is a fit and proper person to manage and carry out the particular functions and activities concerned.

    (5) In determining whether an applicant is a fit and proper person for the purposes of subsection (4), the chief executive must take into account the following matters:

    • (a) the competencies and resources of the applicant to meet and maintain the specified functions and activities that the applicant is to be recognised for:

    • (b) any specified conviction entered against the applicant or any director or manager of the applicant:

    • (c) the applicant’s character or reputation, including, if appropriate, the character or reputation of the directors of the applicant or of those responsible for its management or control:

    • (d) the applicant’s ability to maintain an appropriate degree of impartiality and independence in managing and carrying out the functions and activities:

    • (e) any applicable requirements of this Act:

    • (f) any other matters that the chief executive considers relevant.

127 Certain persons or bodies may be treated as recognised agency
  • (1) For the purposes of this Act, the chief executive may, without receiving an application under section 126(1), grant recognition to any of the following persons or bodies to carry out functions and activities as an agency specified by the chief executive:

    • (a) the Ministry:

    • (b) any group of persons within the Ministry that is designated by the chief executive for the purpose:

    • (c) any department of the public service listed in Schedule 1 of the State Sector Act 1988:

    • (d) any territorial authority.

    (2) Sections 126 and 133 to 144 apply to subsection (1) accordingly, with all necessary modifications.

128 Recognition of person responsible for verification and other specialist functions and activities
  • (1) The chief executive may, on the application of a person, recognise that person or a class of persons to which that person belongs as being suitable to carry out verification functions and activities or other specialist functions and activities for the purposes of this Act.

    (2) Without limiting subsection (1), the functions and activities that a person or class of persons may be recognised for include—

    • (a) verification functions and activities in relation to—

      • (i) food control plans:

      • (ii) national programmes:

      • (iii) monitoring programmes:

    • (b) other verification functions and activities:

    • (c) the provision of independent evaluations of the validity of food control plans for the purposes of section 49(3)(b):

    • (d) other specialist functions and activities specified in a notice issued under section 367.

    (3) Before granting recognition, the chief executive must be satisfied that the applicant is a fit and proper person to carry out the particular functions and activities concerned.

    (4) In determining whether an applicant is a fit and proper person for the purposes of subsection (3), the chief executive must take into account the following matters:

    • (a) the relevant competencies of the applicant:

    • (b) any specified conviction entered against the applicant:

    • (c) the applicant's character and reputation:

    • (d) the applicant's ability to maintain an appropriate degree of impartiality and independence in carrying out the functions and activities:

    • (e) any applicable requirements of this Act:

    • (f) any other matters that the chief executive considers relevant.

129 Certain individuals to be treated as recognised person
  • (1) For the purposes of this Act, the chief executive may, without receiving an application under section 128(1), grant recognition to any officer or employee of the Ministry or of any department of the public service listed in Schedule 1 of the State Sector Act 1988 to carry out functions and activities specified by the chief executive that the individual is qualified for under section 128(1).

    (2) Sections 128 and 133 to 144 apply to subsection (1) accordingly, with all necessary modifications.

130 Application for recognition
  • An application for recognition under section 126 or 128 must—

    • (a) be made in writing to the chief executive in a form or manner approved by the chief executive; and

    • (b) be accompanied by the prescribed fee (if any).

131 Chief executive may require further information
  • (1) The chief executive may require an applicant to supply further information or material before determining whether or not to grant the applicant recognition.

    (2) An application for recognition lapses if the additional information or other material is not supplied—

    • (a) within 3 months after the date of the requirement; or

    • (b) within any further time that the chief executive allows.

132 Refusal to grant recognition
  • (1) If the chief executive proposes to refuse to grant an applicant recognition for the functions and activities applied for, the chief executive must give the applicant—

    • (a) a written notice that clearly informs the applicant of the grounds proposed for refusal; and

    • (b) a reasonable opportunity to make written submissions.

    (2) If the chief executive finally determines to refuse to grant recognition, the chief executive must, as soon as practicable, give the applicant written notice of—

    • (a) the decision and the reason for it; and

    • (b) the applicant's right to seek a review of the decision under section 325.

133 Grant of recognition
  • (1) If the chief executive determines to grant an applicant recognition, the chief executive must, as soon as practicable,—

    • (a) enter the applicant's name in the relevant public register under Part 4 of Schedule 5; and

    • (b) give the applicant a notice of recognition.

    (2) The notice of recognition must specify—

    • (a) the functions and activities that,—

      • (i) for a recognised agency, the applicant is responsible for managing and carrying out; or

      • (ii) for a recognised person, the applicant is responsible for carrying out; and

    • (b) any conditions imposed under section 134; and

    • (c) the duration of the recognition under section 135.

134 Chief executive may impose conditions on grant of recognition
  • (1) The chief executive may grant recognition subject to any conditions that the chief executive thinks fit and specifies in the notice of recognition.

    (2) Without limiting subsection (1), the conditions of recognition may include requirements as to the provision of returns, records, and other information the chief executive may reasonably require from time to time to ensure that the recognised agency or the recognised person is properly carrying out the functions and activities the agency or the person is recognised for.

    (3) In the case of a recognised laboratory, a condition may include reporting requirements relating to certain test results (including a requirement to report specified contaminants or pathogens in food).

    (4) The chief executive—

    • (a) may, at any time, by written notice to a recognised agency or a recognised person, revoke, amend, or add to any conditions imposed under subsection (1); and

    • (b) must give the recognised agency or the recognised person a reasonable opportunity to make written submissions if a condition is varied under paragraph (a).

    (5) Subsection (4)(b) does not apply if a variation to the condition is made on the application of the recognised agency or the recognised person in accordance with the terms of that application.

135 Duration of recognition
  • (1) A grant of recognition is effective for—

    • (a) a specified period commencing on the date stated in the notice of recognition given under section 133(1)(b); or

    • (b) an indefinite period.

    (2) A grant of recognition continues in force until—

    • (a) it is withdrawn under section 142; or

    • (b) it is surrendered under section 143; or

    • (c) for recognition granted for a specific period, the expiry of that period.

136 Recognition may not be transferred
  • A recognition applies only to the particular agency or the particular person specified in the notice of recognition and—

    • (a) may not be transferred to a different agency or person; and

    • (b) may not vest by operation of law in any person other than the agency or person so specified.

137 Recognition fees
  • (1) A recognised agency or a recognised person is liable to pay the prescribed fee (if any) for recognition.

    (2) A recognition fee is payable either annually or at a greater interval, as may be prescribed.

    (3) Different levels of fees may be prescribed for recognition of different types of functions and activities, agencies, or persons.

    (4) A failure to pay the appropriate fee within 30 days of the due date may result in the withdrawal of recognition by the chief executive, in accordance with section 142(1)(f).

Suspension of recognition

138 Mandatory suspension
  • (1) The chief executive may, at any time, suspend all or part of the recognition of an agency or a person in accordance with clause 4 of Schedule 4 if the chief executive has reasonable grounds to believe that the performance of the agency or the person is unsatisfactory, taking into account the requirements of the recognition.

    (2) The maximum period of suspension under this section is 3 months.

    (3) The chief executive may—

    • (a) impose conditions that must be satisfied before the suspension may be lifted:

    • (b) require an agency or a person suspended under this section to take appropriate action to remedy the deficiency or failure that resulted in suspension.

139 Chief executive may extend mandatory suspension
  • (1) The chief executive may, in accordance with clause 5 of Schedule 4, extend the period of a suspension under section 138 if he or she considers the conditions that were imposed under that section have not been satisfied within the suspension period.

    (2) The period of extension—

    • (a) may be for any further period that the chief executive notifies in writing to the agency or the person before the expiry of the original suspension; but

    • (b) must not exceed a further 3 months.

140 Effect of suspension
  • (1) A suspension under section 138 or an extension of suspension under section 139 does not affect any other actions that the chief executive may take under this Act.

    (2) The chief executive must notify—

    • (a) the relevant recognised agency of the suspension, or extension of suspension, of recognition of a person for whom the agency is responsible:

    • (b) any relevant recognised person of the suspension, or extension of suspension, of recognition of an agency that manages that person.

Removal of recognition

141 Removal from public register
  • The chief executive must remove the name of a recognised agency or a recognised person from the relevant public register if the chief executive—

    • (a) withdraws the recognition of the agency or the person under section 142; or

    • (b) records the surrender of the agency's or the person's recognition under section 143.

142 Withdrawal of recognition
  • (1) The chief executive may withdraw all or part of the recognition of an agency or a person in accordance with Part 4 of Schedule 4 if satisfied that—

    • (a) suspending all or part of the agency's or the person's recognition under section 138 would be justified, but it would be more appropriate to withdraw the recognition because of—

      • (i) the failure of the agency or the person to properly attend to matters that would lead to the suspension of recognition; or

      • (ii) repeated suspensions in the past under that section; or

    • (b) the agency or the person is not, or is no longer, a fit and proper person to carry out the functions or activities for which the recognition was granted; or

    • (c) the agency or the person has failed to comply with any term or condition of the recognition, or has failed to meet any performance criteria specified by the chief executive in a notice issued under section 367; or

    • (d) the agency or the person has failed to comply with any applicable requirements of this Act and that failure causes the chief executive to question the agency’s or the person’s ability to carry out the functions or activities for which the recognition was granted; or

    • (e) the agency or the person has ceased to operate as a recognised agency or a recognised person; or

    • (f) the agency or the person has failed to pay any fees imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

    (2) As soon as practicable after withdrawing the recognition of an agency or a person, the chief executive must,—

    • (a) if the withdrawal relates to a recognised agency, notify the withdrawal to every recognised person for whom the agency is responsible; or

    • (b) if the withdrawal relates to a recognised person, notify the withdrawal to the recognised agency that manages that person.

    (3) If recognition is withdrawn, the recognised agency or the recognised person must, as soon as practicable, send the agency's or, as the case may be, the person's notice of recognition to the chief executive.

143 Surrender of recognition
  • (1) A recognised agency or a recognised person may, at any time, surrender that recognition by written notice to the chief executive.

    (2) As soon as practicable after being notified of a surrender under subsection (1), the chief executive must record the surrender on the relevant public register.

    (3) As soon as practicable after the surrender of recognition, the recognised agency or recognised person must, before the date on which the surrender takes effect,—

    • (a) if the surrender relates to a recognised agency, notify the surrender to every recognised person for whom the agency is responsible; or

    • (b) if the surrender relates to a recognised person, notify the surrender to the recognised agency that manages that person.

144 Effective date of surrender
  • A surrender takes effect—

    • (a) on the date specified in the notice given under section 143(1); or

    • (b) if no date is specified, on the date on which the chief executive receives that notice.

Miscellaneous

145 Liability for loss
  • (1) The following are not liable for any loss arising through the actions or omissions of a recognised agency or a recognised person:

    • (a) the Crown:

    • (b) the chief executive:

    • (c) an employee of the Ministry.

    (2) However, subsection (1) does not apply to a recognised agency or to a recognised person who is—

    • (a) the Ministry, or a group of persons within the Ministry, and granted recognition as a recognised agency under section 127; or

    • (b) an officer or employee of the Ministry who is granted recognition as a recognised person under section 129; or

    • (c) a department of the public service listed in Schedule 1 of the State Sector Act 1988.

    (3) A person appointed as a recognised person under section 128 may not be treated as an employee of the Ministry only by reason of that appointment.

Subpart 1Recognised agencies, persons, and classes of persons

123 Outline of this subpart
  • This subpart—

    • (a) establishes a procedure for the recognition of agencies (including verification agencies) that are responsible for managing and carrying out specified functions and activities for the purposes of this Act; and

    • (b) establishes a procedure for the recognition of persons (including verifiers) or classes of persons who are to carry out specified functions and activities for the purposes of this Act; and

    • (c) sets out the duties of recognised agencies, recognised persons, and recognised classes, and when their recognition can be suspended or withdrawn; and

    • (d) provides for the establishment and maintenance of a public register of recognised agencies, recognised persons, and recognised classes, and for the public to access the register.

Recognition of agencies, persons, and classes of persons

124 Recognition of agencies
  • (1) The chief executive may, on the application of a person, recognise that person as an agency that is responsible for the management and carrying out of specified functions and activities.

    (2) Before recognising an applicant, the chief executive must—

    • (a) consider whether to impose a condition under section 136(1) requiring the applicant to manage or supply recognised persons to carry out some or all of the permissible functions and activities for which recognition is sought; and

    • (b) be satisfied that the applicant is a fit and proper person to manage and carry out the permissible functions and activities for which recognition is sought.

    (3) In determining whether an applicant is a fit and proper person, the chief executive—

    • (a) must take into account the following matters:

      • (i) the competencies and resources of the applicant to manage and carry out the permissible functions and activities for which recognition is sought; and

      • (ii) any specified conviction entered against the applicant or any director or manager of the applicant; and

      • (iii) the applicant’s character and reputation, including, if appropriate, the character and reputation of the directors of the applicant or of those responsible for its management or control; and

      • (iv) the applicant’s ability to maintain an appropriate degree of impartiality and independence in managing and carrying out the permissible functions and activities for which recognition is sought; and

      • (v) any applicable requirements of this Act; and

    • (b) may take into account any other matters that the chief executive considers relevant.

    (4) This section is subject to section 126(5).

125 Recognition of certain agencies without application
  • (1) The chief executive may, without receiving an application under section 124(1), recognise any of the following, or any group of persons within each of the following, as an agency that is responsible for the management and carrying out of specified functions and activities:

    • (a) the Ministry:

    • (b) a department of the Public Service listed in Schedule 1 of the State Sector Act 1988.

    (2) Section 124(2) and (3) apply to subsection (1) accordingly, with all necessary modifications.

    (3) This section is subject to section 126(5).

126 Recognition of territorial authorities for certain verification functions and activities
  • (1) A territorial authority is recognised as the agency that is responsible for the management and carrying out of verification functions and activities in relation to a food business that is—

    • (a) operating under a food control plan that is based on a template or model issued under section 32; and

    • (b) operating entirely within the district of that territorial authority; and

    • (c) selling food primarily directly to consumers.

    (2) The recognition of a territorial authority under subsection (1) must be treated as if it were recognition by the chief executive under section 125 for an indefinite duration.

    (3) However, sections 144C to 144L do not apply in respect of a territorial authority's recognition under subsection (1).

    (4) To avoid doubt,—

    • (a) other provisions of this subpart that apply to an agency recognised under section 125 (such as section 136) apply in respect of a territorial authority's recognition under subsection (1); and

    • (b) nothing in this section limits or affects the application of sections 157 to 169 in respect of a territorial authority managing and carrying out verification functions and activities described in subsection (1).

    (5) The chief executive must not recognise any person besides a territorial authority as an agency that is responsible for the management and carrying out of the verification functions and activities described in subsection (1).

127 Review of operation of section 126
  • As soon as practicable after the expiry of the Act's introductory period (as defined in section 375), the chief executive must—

    • (a) review the operation of section 126 since the date of commencement of that section; and

    • (b) consider whether any amendments to the law are necessary or desirable and, in particular, whether there is a need to retain, amend, or repeal section 126; and

    • (c) present a report of the review to the Minister within 6 months of commencing the review.

128 Recognition of persons
  • (1) The chief executive may, on the application of a natural person, recognise that person to carry out specified functions and activities.

    (2) Before recognising an applicant, the chief executive must—

    • (a) consider whether to impose a condition under section 136(1) requiring the applicant to be managed, employed, or engaged by a recognised agency to carry out some or all of the permissible functions and activities for which recognition is sought; and

    • (b) be satisfied that the applicant is a fit and proper person to carry out the permissible functions and activities for which recognition is sought.

    (3) In determining whether an applicant is a fit and proper person, the chief executive—

    • (a) must take into account the following matters:

      • (i) the competency of the applicant to carry out the permissible functions and activities for which recognition is sought; and

      • (ii) any specified conviction entered against the applicant; and

      • (iii) the applicant’s character and reputation; and

      • (iv) the applicant’s ability to maintain an appropriate degree of impartiality and independence in carrying out the permissible functions and activities for which recognition is sought; and

      • (v) any applicable requirements of this Act; and

    • (b) may take into account any other matters that the chief executive considers relevant.

129 Recognition of certain persons without application
  • (1) The chief executive may, without receiving an application under section 128(1), recognise any of the following natural persons to carry out specified functions and activities:

    • (a) any officer or employee of the Ministry:

    • (b) any officer or employee of any department of the Public Service listed in Schedule 1 of the State Sector Act 1988:

    • (c) any officer or employee of a territorial authority.

    (2) Section 128(2) and (3) apply to subsection (1) accordingly, with all necessary modifications.

130 Recognition of classes of persons
  • (1) The chief executive may recognise a class of natural persons to carry out specified functions and activities.

    (2) The chief executive may recognise a class of natural persons—

    • (a) on the application of any person who the chief executive is reasonably satisfied—

      • (i) represents that class of persons; or

      • (ii) is an appropriate person to make an application on behalf of that class of persons; or

    • (b) without receiving an application.

    (3) Before recognising a class of natural persons, the chief executive must—

    • (a) consult the members of the class and the applicant (if any) in accordance with section 144N about the application for recognition of the class; and

    • (b) be satisfied that the class is an appropriate class to carry out the permissible functions and activities for which the class is proposed to be recognised.

    (4) In determining whether a class is an appropriate class, the chief executive—

    • (a) must take into account the following matters:

      • (i) whether the class can be defined with appropriate accuracy and specificity; and

      • (ii) the degree to which members of the class share common characteristics (for example, qualifications, skills, and experience); and

      • (iii) the degree to which the ordinary qualifications, skills, functions, and activities of members of the class correspond with, and demonstrate adequate competency to carry out, the permissible functions and activities for which the class is proposed to be recognised; and

      • (iv) whether the class is supervised, regulated, governed, or controlled by or under a professional or regulatory body or system (for example, a disciplinary body or system), or an enactment; and

      • (v) whether the class is subject to a code of ethics or standards of professional conduct to which members must adhere; and

      • (vi) any applicable requirements of this Act; and

    • (b) may take into account any other matters that the chief executive considers relevant.

    (5) If the chief executive recognises a class of persons under this section, the chief executive may, if he or she considers on reasonable grounds that it is appropriate to do so, exclude 1 or more members of the class, or categories of members of the class, from the recognised class (see section 135).

131 Interrelationship between sections 124, 125, and 128 to 130
  • To avoid doubt, a natural person may be recognised under any 1 or more of sections 124, 125, and 128 to 130 despite already being recognised in another capacity under any 1 or more of those sections.

Recognition process

132 Application for recognition
  • An application for recognition under section 124, 128, or 130 must—

    • (a) be in the appropriate form and manner provided or approved by the chief executive for that purpose; and

    • (b) be accompanied by the prescribed application fee (if any).

133 Chief executive may require further information
  • (1) The chief executive may require a person who applies for recognition to supply further information or material before determining whether to grant the recognition.

    (2) An application for recognition lapses if the additional information or other material is not supplied—

    • (a) within 3 months after the date of the requirement; or

    • (b) within any further time that the chief executive allows by notice in writing.

134 Proposal to refuse application to recognise agency, person, or class of persons
  • (1) If the chief executive proposes to refuse an application for recognition in whole or in part, the chief executive must consult the applicant in accordance with section 144N about the proposed refusal.

    (2) The notification given to the applicant in accordance with section 144N(a)(i) must—

    • (a) specify the grounds for proposing to refuse the application; and

    • (b) include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to refuse the application.

    (3) If the chief executive finally determines to refuse the application (in whole or in part), the chief executive must, as soon as practicable, give the applicant written notice of—

    • (a) the decision and the chief executive's reasons for it; and

    • (b) the applicant's right to seek a review of that decision under section 325.

135 Proposal to exclude members, or categories of members, from recognition of class
  • (1) If the chief executive proposes to exclude any members, or categories of members, from the recognition of a class, the chief executive must consult those members and the applicant (if any) in accordance with section 144N about the exclusion of the members.

    (2) The notification given to the members and the applicant (if any) in accordance with section 144N(a) must—

    • (a) specify the grounds for proposing to exclude the members; and

    • (b) include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to exclude the members.

    (3) If the chief executive finally determines to exclude any members, or categories of members, from the recognition of a class, the chief executive must, as soon as practicable, give those members and the applicant (if any) written notice of—

    • (a) the decision and the chief executive's reasons for it; and

    • (b) the members' and the applicant's right to seek a review of that decision under section 325.

136 Chief executive may impose or vary conditions of recognition
  • (1) The chief executive may impose any conditions the chief executive thinks fit when he or she recognises an agency, a person, or a class of persons under any of sections 124, 125, and 128 to 130.

    (2) The chief executive may vary any conditions by, as appropriate,—

    • (a) giving a recognised agency or a recognised person written notice of the variation; or

    • (b) notifying a recognised class of the variation in accordance with section 144M.

    (3) However, before varying a condition the chief executive must consult the recognised agency, recognised person, or recognised class in accordance with section 144N about the proposed variation, unless the agency is, or is within, the Ministry or the person is within the Ministry.

    (4) If the chief executive varies a condition, the recognised agency, the recognised person, or a member of the recognised class to whom the condition applies may seek a review of the variation under section 325.

    (5) Subsections (3) and (4) do not apply if the variation is made on the application of the recognised agency, recognised person, or recognised class in accordance with the terms of that application.

    (6) In this section, vary means—

    • (a) to impose additional conditions; or

    • (b) to revoke or amend any conditions.

137 Grant of recognition
  • (1) If the chief executive recognises an agency, a person, or a class of persons, the chief executive must, as soon as practicable,—

    • (a) enter the name of the recognised agency or recognised person, or a definition of the class that allows the class to be accurately and readily identified, in the relevant public register; and

    • (b) for a recognised agency or a recognised person, give the agency or person a notice of recognition; and

    • (c) for a recognised class,—

      • (i) notify the class in accordance with section 144M of its recognition; and

      • (ii) if there was an applicant, give the applicant written notice of the recognition of the class.

    (2) A notice of recognition must specify—

    • (a) the permissible functions and activities for which the recognition is granted; and

    • (b) for a recognised class, any members or categories of members that are excluded from the recognised class in accordance with section 130(5); and

    • (c) any conditions of recognition imposed under section 136(1); and

    • (d) the duration of the recognition under section 139.

138 Scope, effect, and transfer of recognition
  • (1) Recognition of a recognised agency or a recognised person applies only to the particular agency or particular person specified in the notice of recognition.

    (2) If a class of persons is recognised,—

    • (a) that recognition applies—

      • (i) to the class as defined in the relevant public register; and

      • (ii) to each member of that class, but only—

        • (A) to the extent that the member carries out the specified functions and activities for which the class is recognised; and

        • (B) while the member continues to hold the qualifications or meet the other membership criteria according to which the class is defined in the relevant public register in accordance with section 137(1)(a); and

    • (b) each member of the class—

      • (i) is a recognised person; and

      • (ii) is subject to the duties of recognised persons set out in section 144A; and

      • (iii) may independently carry out the specified functions and activities for which the class is recognised; and

      • (iv) may have the recognition of the class of which he or she is a member suspended or withdrawn for him or her only; and

    • (c) all conditions of recognition imposed on the class under section 136, and all directions or other requirements that apply to the class, also apply to, and must be complied with by, each member of the class individually; and

    • (d) a suspension or withdrawal of the recognition of the class, and any condition or corrective action imposed under section 144C(3) on the suspension of the class, also applies to each member of the class individually; and

    • (e) each member of the class who carries out the specified functions and activities for which the class is recognised—

      • (i) does so on his or her own account; and

      • (ii) is personally responsible for his or her own actions or omissions.

    (3) Further to subsection (2), this subpart applies to a recognised person who is recognised by virtue of being a member of a recognised class, as far as applicable and with all necessary modifications, as if—

    • (a) a reference to a recognised person's specified functions and activities were a reference to the specified functions and activities of the recognised class of which he or she is a member; and

    • (b) a reference to a recognised person's recognition were a reference to the class's recognition; and

    • (c) a reference to a recognised person's notice of recognition were a reference to the class's notice of recognition.

    (4) Recognition may not be transferred to a different agency, person, or class of persons, and may not vest by operation of law in any person other than the agency, person, or class of persons specified in the notice of recognition.

139 Duration of recognition
  • (1) Recognition has effect for—

    • (a) a specified period commencing and ending on the dates stated in a notice of recognition in accordance with section 137(2)(d); or

    • (b) if no period is specified, an indefinite period.

    (2) However,—

    • (a) recognition ends if it is withdrawn under section 144G or 144H or surrendered under section 144J; and

    • (b) recognition has no effect while it is suspended under section 144C or 144D.

140 Renewal of recognition before expiry
  • (1) If an agency, a person, or a class of persons is recognised for a specified period, then no later than 1 month before the end of that period—

    • (a) the agency, the person, or an appropriate representative may apply to the chief executive for renewal of the recognition; or

    • (b) the chief executive may renew the recognition without application if the agency, person, or class was initially recognised by the chief executive without application.

    (2) In determining whether to renew the recognition of an agency, a person, or a class of persons, the chief executive must consider the matters set out in (as applicable) section 124(2) and (3), 128(2) and (3), or 130(3)(b) and (4) unless the chief executive is satisfied that—

    • (a) either—

      • (i) the circumstances of the agency, person, or class have not changed; or

      • (ii) if the circumstances of the agency, person, or class have changed, those changes do not adversely affect the current recognition; and

    • (b) the reasons why the chief executive recognised the agency, person, or class still apply; and

    • (c) the agency or person has, or a sufficient proportion of the members of the class have, complied with all applicable conditions of recognition imposed under section 136 and requirements of this Act during the period of recognition.

    (3) If the chief executive proposes to vary any conditions of recognition imposed on the agency, person, or class of persons under section 136 when the chief executive renews the recognition, the chief executive—

    • (a) must vary the conditions in accordance with section 136(2) to (6); and

    • (b) may, by notice in writing to the agency, person, or class, temporarily extend the specified period of the existing recognition in order to allow consultation in accordance with section 136(3) (if required) to be completed before the period of recognition ends.

    (4) Sections 133 to 139 apply with all necessary modifications to applications under this section.

    (5) An application under this section that is received by the chief executive after the deadline specified in subsection (1) must be treated as if it were a new application for recognition under section 124, 128, or 130, as applicable.

    (6) In this section, appropriate representative means any person who the chief executive is reasonably satisfied—

    • (a) represents the recognised class; or

    • (b) is an appropriate person to make an application on behalf of the class.

141 Application for renewal of recognition
  • An application for renewal of recognition under section 140 must—

    • (a) be in the appropriate form and manner provided or approved by the chief executive for that purpose; and

    • (b) be accompanied by the prescribed application fee (if any).

142 Substituted notice of recognition
  • (1) A recognised agency or a recognised person may apply to the chief executive for a new notice of recognition to be issued in substitution for an existing notice of recognition if—

    • (a) any conditions of recognition imposed on the agency or person are varied under section 136(2); or

    • (b) the existing notice has become disfigured or dilapidated, or contains a mistake; or

    • (c) the existing notice has been lost or destroyed.

    (2) The chief executive must cancel the existing notice of recognition and give a new notice of recognition in substitution for it if—

    • (a) an application for a substituted notice of recognition is made to the chief executive in the appropriate form and manner provided or approved by the chief executive for that purpose; and

    • (b) the application is accompanied by the prescribed application fee (if any).

143 Ongoing recognition fees, charges, or levies
  • Recognised agencies and recognised persons must pay the prescribed fee, charge, or levy (if any) for ongoing recognition for the prescribed period on or before the date provided or approved by the chief executive for that purpose.

Performance of specified functions and activities

144 Duties of recognised agencies
  • (1) When carrying out its specified functions and activities, a recognised agency must ensure that it—

    • (a) carries out only functions and activities that are within the scope of those specified; and

    • (b) is adequately resourced and its systems are maintained to a level that ensures it is able to carry out those functions and activities; and

    • (c) has documented policies and procedures to safeguard the confidentiality of the information obtained or created while carrying out those functions and activities; and

    • (d) has systems, processes, and procedures to manage appropriately any conflict of interest that might arise while carrying out those functions and activities; and

    • (e) complies with all applicable requirements of this Act.

    (2) When carrying out its specified functions and activities, a recognised agency must also ensure that each recognised person that the agency manages and supplies (if any)—

    • (a) maintains all competency requirements applicable to his or her recognition; and

    • (b) is not placed in a position or a situation that compromises his or her impartiality and independence in carrying out his or her specified functions and activities.

    (3) The duties in section 144A apply to a recognised agency (in addition to the duties in subsection (1)), but only to the extent that the agency is recognised to carry out its specified functions and activities itself (instead of being recognised to manage or supply a recognised person to carry out its specified functions and activities).

144A Duties of recognised persons
  • When carrying out his or her specified functions and activities, a recognised person must ensure that he or she—

    • (a) carries out only functions and activities that are within the scope of those specified; and

    • (b) maintains all competency requirements applicable to his or her recognition; and

    • (c) maintains an appropriate degree of impartiality and independence; and

    • (d) maintains appropriate confidentiality (particularly in respect of commercially sensitive matters) relating to operations and activities the person comes into contact with in the course of carrying out those functions and activities (except to the extent that the person is required to report under paragraph (e) or otherwise for the purposes of this Act), including matters relating to design, technology, systems, personnel, and practices; and

    • (e) reports to the registration authority, in accordance with any applicable requirements of this Act,—

      • (i) a failure to comply with, or any inadequacy in, a food control plan:

      • (ii) a failure to comply with a national programme:

      • (iii) a failure to comply with a monitoring programme:

      • (iv) any other matter that a recognised person is required to report; and

    • (f) complies with all applicable requirements of this Act.

144B Recognised agency or person may act in other capacities
  • Nothing in section 144 or 144A prevents a recognised agency or a recognised person from carrying out functions and activities that are outside the scope of the agency's or person's specified functions and activities, provided that the agency or person does not do so—

    • (a) in the agency's or person's capacity as a recognised agency or a recognised person; or

    • (b) while purporting to act as a recognised agency or a recognised person.

Suspension of recognition

144C Suspension of recognition of recognised agency, etc
  • (1) The chief executive may suspend all or part of the recognition of a recognised agency, recognised person, or recognised class if the chief executive has reasonable grounds to believe that—

    • (a) the performance of the agency, person, or a significant proportion of the members of the class is unsatisfactory, taking into account the requirements of the recognition; or

    • (b) the agency, person, or a significant proportion of the members of the class no longer meets 1 or more of the criteria on which that agency, person, or class was recognised under whichever of sections 124, 125, and 128 to 130 applies; or

    • (c) the agency, person, or a significant proportion of the members of the class has failed to comply with section 144 or 144A or any other applicable requirements of this Act, and that failure causes the chief executive to question the ability of the agency, person, or class to carry out the specified functions or activities of the agency, person, or class; or

    • (d) for an agency or a person, the agency or person has failed to pay an ongoing recognition fee, charge, or levy within 30 days after the date on which it was due and payable.

    (2) The maximum period of suspension under this section is 3 months.

    (3) The chief executive may do either or both of the following:

    • (a) impose conditions that must be satisfied before the suspension is lifted:

    • (b) require a suspended agency, person, or class to take appropriate corrective action to remedy the deficiency or failure that resulted in the suspension.

144D Chief executive may extend suspension
  • (1) The chief executive may extend the period of a suspension under section 144C if the chief executive has reasonable grounds to believe that—

    • (a) any conditions imposed under that section have not been satisfied within the suspension period; or

    • (b) any corrective actions imposed under that section have not been fulfilled within the suspension period.

    (2) The period of extension—

    • (a) may be for any further period that the chief executive notifies in writing to the agency or the person, or notifies to the class in accordance with section 144M, before the expiry of the original suspension; but

    • (b) must not exceed a further 3 months.

    (3) The chief executive may (in addition to any conditions or requirements imposed under section 144C(3)) do either or both of the following:

    • (a) impose conditions that must be satisfied before the extended period of suspension is lifted:

    • (b) require a suspended agency, person, or class to take appropriate corrective action to remedy the deficiency or failure that resulted in the suspension.

144E Method of suspension of recognition
  • (1) The chief executive must, as soon as practicable after deciding to suspend, or extend the suspension of, a recognised agency, recognised person, or recognised class, notify—

    • (a) a recognised agency or recognised person of the suspension of the agency or person; and

    • (b) a recognised agency of the suspension of a recognised person for whom the agency is responsible; and

    • (c) a recognised person of the suspension of any recognised agency that is responsible for that person; and

    • (d) a recognised class of the suspension of the class.

    (2) A notice of suspension must—

    • (a) be given to a recognised agency or a recognised person by notice in writing; and

    • (b) be given to a recognised class by notifying the class in accordance with section 144M; and

    • (c) specify—

      • (i) the reason for the suspension; and

      • (ii) the date and time the suspension starts; and

      • (iii) the period of the suspension; and

      • (iv) the specified functions and activities that the suspension relates to; and

      • (v) any conditions or corrective actions imposed under section 144C(3) or 144D(3); and

    • (d) set out the right of the recognised agency, recognised person, or recognised class (under section 325) to seek a review of the decision to suspend the recognition.

    (3) The chief executive may notify any suspension of recognition in the Gazette.

    (4) In subsections (1) to (3), suspension includes an extension of a suspension.

144F Suspension does not limit other actions
  • A suspension under section 144C or an extension of a suspension under section 144D does not affect any other actions that the chief executive may take under this Act.

Withdrawal of recognition

144G Withdrawal of recognition of recognised agency or recognised person
  • (1) The chief executive may withdraw all or part of the recognition of a recognised agency or a recognised person if the chief executive has reasonable grounds to believe that—

    • (a) suspending all or part of the agency’s or person’s recognition under section 144C (or extending a suspension under section 144D) would be justified, but repeated suspensions in the past have been ineffective; or

    • (b) the agency or person is no longer a fit and proper person to carry out the agency's or person's specified functions and activities; or

    • (c) the agency or person has failed to comply with section 144 or 144A or any other applicable requirements of this Act, and that failure causes the chief executive to question the agency’s or the person’s ability to carry out the agency's or person's specified functions or activities; or

    • (d) the agency or person has ceased to operate as a recognised agency or a recognised person; or

    • (e) the agency or person has continued to fail to pay an ongoing recognition fee, charge, or levy after the agency's or person's recognition has been suspended on the ground set out in section 144C(1)(d); or

    • (f) the agency or person has failed to comply with or maintain any criteria or competencies that led to the recognition of the agency or person; or

    • (g) the agency is no longer the appropriate agency to hold the recognition, but only if the agency is, or is within, the Ministry or a department of the Public Service listed in Schedule 1 of the State Sector Act 1988.

    (2) However, before withdrawing recognition, the chief executive must consult the agency or person in accordance with section 144N about the proposed withdrawal of recognition, unless the agency is, or is within, the Ministry or the person is within the Ministry.

    (3) The notification given to the agency or person in accordance with section 144N(a)(i) must—

    • (a) specify the grounds for the proposed withdrawal; and

    • (b) include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to withdraw the recognition.

144H Withdrawal of recognition of recognised class
  • (1) The chief executive may withdraw all or part of the recognition of a recognised class if the chief executive has reasonable grounds to believe that a significant proportion of the members of the class—

    • (a) have ceased to hold a qualification or meet 1 or more other membership criteria according to which the class is defined in the relevant public register in accordance with section 137(1)(a); or

    • (b) have failed to comply with section 144A or any other applicable requirements of this Act, and that failure causes the chief executive to question the class’s ability to carry out the class's specified functions or activities.

    (2) However, before withdrawing recognition on the ground set out in subsection (1)(b), the chief executive must consult the recognised class in accordance with section 144N about the proposed withdrawal of recognition.

    (3) The notification given to the recognised class in accordance with section 144N(a)(ii) must—

    • (a) specify the grounds for the proposed withdrawal; and

    • (b) include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to withdraw the recognition.

144I Method of withdrawal of recognition
  • (1) The chief executive must, as soon as practicable after deciding to withdraw all or part of the recognition of a recognised agency, recognised person, or recognised class, notify—

    • (a) a recognised agency or recognised person of the withdrawal of recognition of the agency or person; and

    • (b) a recognised agency of the withdrawal of recognition of a person for whom the agency is responsible; and

    • (c) a recognised person of the withdrawal of recognition of any recognised agency that is responsible for that person; and

    • (d) a recognised class and, if there was an applicant on behalf of the class, the applicant of the withdrawal of recognition of the class.

    (2) A notice of withdrawal must—

    • (a) be given to a recognised agency, a recognised person, or an applicant by notice in writing; and

    • (b) be given to a recognised class by notifying the class in accordance with section 144M; and

    • (c) specify—

      • (i) the reason for the withdrawal; and

      • (ii) the date and time the withdrawal takes effect; and

      • (iii) the specified functions and activities that the withdrawal relates to; and

    • (d) set out the right of the recognised agency, recognised person, or recognised class (under section 325) to seek a review of the decision to withdraw the recognition.

    (3) The chief executive may notify any withdrawal of recognition in the Gazette.

    (4) An agency or a person who is recognised under any of sections 124, 125, 128, and 129 and whose recognition is withdrawn must return the agency’s or person’s notice of recognition to the chief executive as soon as practicable after the withdrawal of recognition takes effect.

    (5) An agency or a person whose recognition is withdrawn must, as soon as practicable after the withdrawal of recognition takes effect, take reasonable steps to notify each person who was a client of the agency or person immediately before the withdrawal that the agency's or person’s recognition has been withdrawn.

Surrender of recognition

144J Surrender of recognition
  • (1) A recognised agency or recognised person may—

    • (a) surrender his, her, or its recognition by written notice to the chief executive; and

    • (b) specify in the notice a future date on which the surrender is to take effect.

    (2) Before the date on which a surrender takes effect, the recognised agency or recognised person that is surrendering his, her, or its recognition must,—

    • (a) for a recognised agency, notify the surrender to any recognised persons for whom the agency is responsible; and

    • (b) for a recognised person, notify the surrender to any recognised agency that is responsible for that person; and

    • (c) take reasonable steps to notify each person who will be a client of the agency or person immediately before the surrender that the agency's or person’s recognition is surrendered.

144K Effective date of surrender
  • A surrender takes effect on the later of—

    • (a) the date specified in the notice given under section 144J(1); or

    • (b) the date on which the chief executive records the surrender in the relevant public register under clause 10(1)(b)(v) of Schedule 5 or removes the agency or person from the relevant public register under section 144L(3).

Removal of registration of recognised agencies, recognised persons, and recognised classes

144L Removal from public register
  • (1) The chief executive must, as soon as practicable, remove the name of a recognised agency, recognised person, or recognised class from the relevant public register if the period for which the recognition is granted expires and is not extended under section 140(3)(b) or renewed.

    (2) Subsection (3) applies if the recognition of a recognised agency, a person who is recognised under section 128, or a recognised class is—

    • (a) withdrawn under section 144G or 144H; or

    • (b) surrendered under section 144J.

    (3) The chief executive must, as soon as practicable after withdrawing the recognition or being notified of the surrender,—

    • (a) record the withdrawal or surrender and the date on which it takes effect; and

    • (b) remove that agency, person, or class from the relevant public register.

Miscellaneous matters

144M Notification to category or class of persons
  • (1) If any matter is required to be notified to a category or class of persons or a recognised class under this subpart, it must be notified in 1 or more of the following ways:

    • (a) by notice in the Gazette:

    • (b) by publication in all major metropolitan daily newspapers on at least 2 occasions:

    • (c) by notifying a person who the chief executive is reasonably satisfied represents the category or class or is an appropriate person to receive a notification on behalf of the category or class:

    • (d) if there was an applicant for the recognition of the class, by notifying that applicant:

    • (e) by publication, either temporarily or permanently, on the Ministry’s public Internet site:

    • (f) by post or email to all members of the category or class:

    • (g) in any other manner that the chief executive is reasonably satisfied will ensure that the matter is sufficiently notified to the category or class.

    (2) In deciding which methods of notification are most appropriate in any particular case, the chief executive must consider—

    • (a) the nature and significance of the matter required to be notified; and

    • (b) the size and type of the category or class of persons and its characteristics, geographical spread, and degree of representation and organisation.

144N Means of consultation
  • If the chief executive is required to consult a person or a category or class of persons under this subpart, the chief executive must—

    • (a) notify the person or persons of the matter to be consulted on (the matter) by, as applicable,—

      • (i) giving the person written notice; or

      • (ii) notifying the category or class of persons in accordance with section 144M; and

    • (b) give all persons who are notified of the matter a reasonable opportunity to make a written submission on the matter; and

    • (c) if provided for in the notice (at the discretion of the chief executive), give all persons who are notified of the matter a reasonable opportunity to make an oral submission on the matter; and

    • (d) consider any submissions that he or she receives on the matter from any person who was notified of the matter.

144O Chief executive may require notification of termination of contracts
  • (1) The chief executive may, by notice under section 367, require any verifier or verification agency to notify the chief executive of the termination of any contract with a client for managing or carrying out verification functions and activities.

    (2) The notice may apply generally or to any particular case or class of case.

    (3) The verifier or verification agency must notify the chief executive in writing of the termination as soon as practicable, and in no case later than 7 days after it occurs.

144P Chief executive must consider exemption, waiver, or refund of fees
  • (1) The chief executive must consider whether an exemption, a waiver, or a refund of all or part of a prescribed fee, charge, or levy is appropriate if—

    • (a) an application is made under section 132 by 1 person for more than 1 type of recognition (for example, if a person applies to be recognised as both a recognised agency and a recognised person); or

    • (b) an application is made under section 140 by 1 person to renew more than 1 type of recognition; or

    • (c) 1 person is liable under section 143 to pay a prescribed fee, charge, or levy for ongoing recognition under more than 1 of sections 124, 125, and 128 to 130.

    (2) However, subsection (1) only applies if regulations prescribing the relevant fee, charge, or levy authorise the chief executive to grant an exemption, a waiver, or a refund in these circumstances (see section 178).

145 Liability for loss
  • (1) The following are not liable for any loss arising through the actions or omissions of a recognised agency or a recognised person:

    • (a) the Crown:

    • (b) the chief executive:

    • (c) an employee of the Ministry.

    (2) However, subsection (1) does not apply to a recognised agency or to a recognised person who is—

    • (a) the Ministry, or a group of persons within the Ministry, and granted recognition as a recognised agency under section 125; or

    • (b) an officer or employee of the Ministry who is granted recognition as a recognised person under section 129; or

    • (c) a department of the Public Service listed in Schedule 1 of the State Sector Act 1988, a group of persons within a department who are recognised as a recognised agency under section 125, or an officer or employee of a department who is recognised as a recognised person under section 129.

    (3) A person recognised as a recognised person under section 128 may not be treated as an employee of the Ministry only by reason of that appointment.

Subpart 2Territorial authorities

Functions and duties of territorial authorities

146 Functions of territorial authority
  • (1) The functions of a territorial authority set out in subsection (2) are incidental, related, or consequential to the role specified in section 17.

    (2) A territorial authority has the following functions:

    • (a) to perform the function of a registration authority:

    • (b) to manage and train its staff to carry out functions and activities in relation to this Act:

    • (c) to manage verification functions (including acting as a recognised agency, if so recognised under this Act) in relation to certain food control plans and national programmes, and as otherwise provided for under this Act:

    • (d) to administer the system that disseminates food handler guidance:

    • (e) as directed by the chief executive, to investigate non-compliance and complaints regarding the safety and suitability of food in relation to food control plans or, as the case may be, food businesses subject to national programmes registered by the territorial authority, or to investigate any other matters:

    • (f) to instigate appropriate corrective and preventative actions for matters described in paragraph (e):

    • (g) to enable its food safety officers to enforce the applicable requirements of this Act:

    • (h) to respond to recalls and to respond in an emergency situation, in accordance with any directions given by the chief executive:

    • (i) to disseminate information and provide advice promoting the safety and suitability of food to food businesses and the public:

    • (j) to perform administrative functions relating to this Act, including—

      • (i) gathering information:

      • (ii) receiving applications for registration of food control plans and of food businesses subject to national programmes:

      • (iii) transferring information to the Ministry:

      • (iv) if requested under section 157(1)(b), reporting to the chief executive:

    • (k) in relation to its district, to carry out monitoring and information-gathering activities for the purpose of ascertaining compliance with the applicable requirements of this Act:

    • (l) to perform any other function relevant to its role.

    (3) A territorial authority may, by written agreement, combine with 1 or more other territorial authorities for the purpose of performing the function of a registration authority referred to in subsection (2)(a) in the combined district of the territorial authorities that are parties to the agreement.

    (4) If 2 or more territorial authorities have combined under subsection (3), they may designate any of them as the territorial authority responsible for performing the function of a registration authority for the combined district.

    (5) A territorial authority may not contract out any of the following functions, except to another territorial authority:

    • (a) the function of a recognised agency, if it is so recognised under this Act; and

    • (b) any of the functions referred to in subsection (2)(a), (d), and (e) to (i).

    (6) A territorial authority may not contract out the function referred to in subsection (2)(c) to a person who is not recognised to carry out that function under this Act.

    (7) If a territorial authority contracts out 1 or more of its functions, it continues to have responsibility for that function.

147 Duties of territorial authority
  • A territorial authority must—

    • (a) take all reasonable steps to ensure it has adequate resources and capability to carry out its role, functions, and duties and to exercise its powers under this Act:

    • (b) take all reasonable steps to ensure its functions, duties, and powers under this Act are managed, performed, and exercised in accordance with any relevant national outcomes issued under section 148:

    • (c) take all reasonable steps to ensure that relevant persons who are employed or engaged by the territorial authority are able to carry out their functions and activities under this Act, including verification, investigation, and enforcement activities:

    • (d) take all reasonable steps to ensure that relevant persons who are employed or engaged by the territorial authority for the purposes of this Act maintain their competencies:

    • (e) take all reasonable steps to ensure that any person who is employed, engaged, or used by the territorial authority is not placed in a situation that compromises his or her impartiality or independence in relation to the performance of his or her functions or activities under this Act:

    • (f) monitor its performance of its functions and duties and its exercise of its powers under this Act and provide written reports on these matters to the chief executive annually or at intervals specified in a notice under section 367 (which reports must include any details specified in the notice under that section):

    • (g) provide capability to respond as required in an emergency situation in accordance with any directions given by the chief executive:

    • (h) if it is being reviewed under section 158, facilitate the conduct of the review and provide any information required under section 162 by the person conducting the review:

    • (i) carry out any other function, duty, or direction imposed or given by or under this Act.

National outcomes for territorial authorities

148 Minister may issue national outcomes for territorial authorities
  • (1) For the purposes of this Act, the Minister may—

    • (a) issue national outcomes in relation to the performance or exercise by territorial authorities of functions, duties, and powers under this Act, including the measures to determine whether territorial authorities achieve those outcomes:

    • (b) amend or revoke a national outcome issued under paragraph (a).

    (2) The Minister must not issue, amend, or revoke a national outcome under this section unless the Minister—

    • (a) has first consulted the Minister of Local Government; and

    • (b) is satisfied that consultation has been carried out in accordance with section 341 with respect to issuing, amending, or revoking that national outcome.

    (3) If the Minister issues, amends, or revokes a national outcome, the Minister must, as soon as practicable, notify that fact—

    • (a) to every territorial authority; and

    • (b) in the Gazette.

Transfer of territorial authority's functions, duties, and powers to another territorial authority or regional council

149 Transfer of functions, duties, and powers to territorial authority or regional council
  • (1) A territorial authority that has functions, duties, and powers under this subpart may, under the Local Government Act 2002, transfer any of those functions, duties, and powers to another territorial authority or to a regional council if the other territorial authority or the regional council—

    • (a) agrees in writing to the transfer; and

    • (b) is able to meet any national outcomes issued under section 148 for the relevant district.

    (2) However, a territorial authority may not transfer the function of a recognised agency, if it is so recognised under this Act.

150 Effect of transfer to territorial authority or regional council
  • (1) If a territorial authority transfers any functions, duties, or powers under section 149, the territorial authority ceases to be responsible for the performance or exercise of those functions, duties, and powers.

    (2) If functions, duties, and powers are transferred under section 149 to a territorial authority, that territorial authority is responsible for the performance or exercise of those functions, duties, and powers.

    (3) If functions, duties, and powers are transferred under section 149 to a regional council, the regional council is to be treated as a territorial authority for the purposes of this Act.

151 Records of transfer
  • (1) A territorial authority that transfers any functions, duties, or powers to another territorial authority or to a regional council under section 149 must—

    • (a) keep and maintain a record of the transfer (including a record of the relevant transfer arrangement made under that section); and

    • (b) as soon as practicable after the transfer, provide a summary to the chief executive of the following:

      • (i) the functions, duties, and powers that have been transferred; and

      • (ii) to whom they have been transferred; and

      • (iii) if applicable, for how long they have been transferred.

    (2) A territorial authority or regional council to whom any functions, duties, or powers are transferred under section 149 must keep and maintain a record of the transfer (including a record of the relevant written agreement under that section).

Transfer of territorial authority's functions, duties, and powers to chief executive

152 Transfer of functions, duties, and powers to chief executive
  • (1) A territorial authority that has functions, duties, and powers under this subpart may transfer those functions, duties, and powers to the chief executive if the chief executive agrees to the transfer.

    (2) However, subsection (1) is subject to subsections (3) and (4).

    (3) A territorial authority may not transfer all or any of the following, including any related powers or duties:

    • (a) its power to transfer functions, duties, and powers under subsection (1):

    • (b) its function of receiving applications for registration of food control plans and of food businesses subject to national programmes:

    • (c) its function of disseminating information and providing advice to promote the safety and suitability of food to food businesses and the public:

    • (d) its function as a recognised agency, if it is so recognised under this Act:

    • (e) any administrative and reporting functions relating to paragraphs (a) to (d).

    (4) A territorial authority may not transfer any functions, duties, or powers under this section unless the requirements of section 153 are satisfied and either of the following applies:

    • (a) the territorial authority has included the proposal for the transfer in its long-term council community plan; or

    • (b) the territorial authority has done both of the following:

      • (i) used the special consultative procedure set out in section 83 of the Local Government Act 2002; and

      • (ii) given prior notice to the chief executive of the proposal.

153 Transfer agreement
  • A transfer of functions, duties, or powers under section 152 must—

    • (a) be made in writing; and

    • (b) be made by agreement between the territorial authority concerned and the chief executive; and

    • (c) include any terms and conditions that are agreed, including any financial arrangements.

154 Effect of transfer to chief executive
  • (1) If a territorial authority transfers any functions, duties, or powers under section 152, that territorial authority ceases to be responsible for the performance or exercise of those functions, duties, and powers.

    (2) If functions, duties, and powers are transferred under section 152,—

    • (a) the chief executive is responsible for the performance or exercise of those functions, duties, and powers; and

    • (b) the functions, duties, and powers of the chief executive are deemed to be extended as necessary to enable the chief executive to carry out, perform, and exercise the functions, duties, and powers transferred to him or her; and

    • (c) the chief executive may contract out, or enter into, arrangements for the carrying out of the transferred functions, duties, and powers.

155 Change, revocation, or relinquishment of transfer
  • (1) A territorial authority that has transferred any functions, duties, and powers under section 152 may,—

    • (a) if the chief executive agrees, change the transfer at any time by amendment to the transfer agreement:

    • (b) revoke the transfer by following sections 152(4) and 153 as if they applied to revocation.

    (2) If an amendment to the transfer agreement has the effect of adding to or removing any function, duty, or power (excluding any extensions to the period of transfer) then section 152(4) must be complied with.

    (3) The chief executive may relinquish the transfer in accordance with the transfer agreement.

156 Records of transfer, change, etc
  • (1) A territorial authority must keep and maintain a record of—

    • (a) any transfer to the chief executive made under section 152 (including a record of the relevant transfer agreement required by section 153); and

    • (b) any change, revocation, or relinquishment made under section 155.

    (2) A territorial authority must provide the records to the chief executive as soon as practicable after the transfer, change, revocation, or relinquishment has been completed.

Monitoring performance of functions and duties, and exercise of powers, by territorial authorities

157 Powers of chief executive for monitoring performance of functions and duties and exercise of powers
  • (1) The chief executive may—

    • (a) monitor the performance of functions and duties and the exercise of powers by territorial authorities under this Act; and

    • (b) request a report from a territorial authority in relation to the carrying out of its role specified in section 17 sections 17 and 146.

    (2) For the purposes of this section, the chief executive—

    • (a) must have full access at all reasonable times to—

      • (i) all relevant information that is in the possession or control of a territorial authority; and

      • (ii) any place where that information is kept:

    • (b) may impose any requirements on a territorial authority as to the form and content of reports and the frequency of reporting:

    • (c) may require a territorial authority to—

      • (i) supply any relevant information; or

      • (ii) answer any question that relates to its performance of functions and duties and the exercise of its powers under this Act:

    • (d) may, by written notice, require a person with possession or control of any relevant information to supply to the chief executive, in a manner specified in the notice, all or any of that information.

    (3) Subsection (2) does not limit any Act that imposes a prohibition or restriction on the availability of any information.

    (4) In this section, relevant information

    • (a) means any information of any description that relates to the performance by a territorial authority of its functions and duties, and the exercise of its powers, under this Act; and

    • (b) includes information that is kept in any form (whether in electronic form or otherwise).

Review of territorial authorities

158 Reviews initiated by Minister
  • (1) The Minister may initiate a review of—

    • (a) a territorial authority's performance of all or any of its functions and duties under this Act:

    • (b) a territorial authority's exercise of all or any of its powers under this Act.

    (2) However, the Minister must consult the Minister of Local Government before exercising the powers given to the Minister by subsection (1).

159 Terms of reference
  • (1) The Minister may determine the terms of reference for each review of a territorial authority.

    (2) The terms of reference must include—

    • (a) the territorial authority’s performance during the time of review and any earlier period as determined by the Minister; and

    • (b) the impact on the territorial authority's potential future performance.

    (3) In considering the territorial authority’s performance under subsection (2), the Minister must consider the performance of all or any, as appropriate to the scope of the review, of the functions and activities of the territorial authority, taking into account, without limitation, the following factors:

    • (a) the extent to which it has exercised its powers under this Act; and

    • (b) the extent to which it has established strategies, policies, processes, and systems relating to its functions, duties, and powers; and

    • (c) the extent to which it is resourced and has built capacity to enable it to perform its functions and duties, and to exercise its powers; and

    • (d) the extent to which and the manner in which it has, or has attempted to, transfer or contract out its functions, duties, and powers.

160 Minister to consult on terms of reference
  • (1) The Minister must—

    • (a) consult the territorial authority concerned about the terms of reference; and

    • (b) take into account any representations made under paragraph (a).

    (2) The Minister may consult any other person, as the Minister considers appropriate, about the terms of reference.

161 Appointment of person to conduct review
  • (1) The Minister may appoint the person (the reviewer) to conduct a review of a territorial authority.

    (2) The Minister must—

    • (a) consult the territorial authority concerned before making an appointment under subsection (1); and

    • (b) take into account any representations made under paragraph (a).

162 Powers of reviewer
  • (1) The reviewer may examine a territorial authority’s strategies, policies, systems, processes, and records.

    (2) The reviewer may, during business hours,—

    • (a) enter any place—

      • (i) the territorial authority occupies for the purpose of its business; or

      • (ii) where documents relating to the territorial authority are held or are likely to be held:

    • (b) examine, inquire about, and copy any documents or other records (including records in electronic or other form) held by the territorial authority, or by or on behalf of the territorial authority, that relate to the territorial authority’s performance of its functions and duties, or the exercise of its powers, under this Act.

    (3) For the purposes of subsection (2)(b), the reviewer may—

    • (a) remove documents or records to another place for a reasonable time for the purpose of copying them; and

    • (b) require a person who has control or knowledge of the documents or records to reproduce or to assist in reproducing in usable form information recorded or stored in a computer or any other device or system.

163 Conduct of review
  • A review of a territorial authority must be conducted in accordance with the terms of reference determined by the Minister under section 159.

164 Report of review
  • (1) Once a review has been completed, the reviewer must—

    • (a) prepare a written draft report of the review that includes—

      • (i) the conclusions reached; and

      • (ii) any recommendations formulated as a result of conducting the review; and

    • (b) provide the chief executive and the territorial authority with a copy of the draft; and

    • (c) give the chief executive and the territorial authority a reasonable opportunity to make written submissions on the draft; and

    • (d) take those submissions (if any) into account.

    (2) The reviewer, after complying with subsection (1), must—

    • (a) prepare a written final report on the conclusions reached and recommendations formulated as a result of conducting the review and considering any comments from the chief executive and the territorial authority; and

    • (b) give a copy of the final report to the Minister, the chief executive, and the territorial authority.

    (3) The final report must include—

    • (a)  the review’s conclusions; and

    • (b)  the facts on which those conclusions were based.

164A Part 10 of Local Government Act 2002 not affected
  • Sections 158 to 164 do not affect the powers of the responsible Minister under Part 10 of the Local Government Act 2002 to assist local authorities or to intervene in their affairs in certain situations.

Non-performance by territorial authority

165 Powers of Minister in relation to non-performance by territorial authority
  • (1) If the Minister considers that either or both of the grounds in subsection (2) exist, the Minister may appoint, on terms and conditions that the Minister thinks fit, the chief executive, another territorial authority, a regional council, or a recognised agency to perform and exercise all or any of a territorial authority's functions, duties, and powers under this Act.

    (2) The grounds are that the territorial authority—

    • (a) has had a reasonable opportunity to address any concerns set out in a final report under section 164 about the territorial authority's performance of all or any of its functions and duties, or the exercise of all or any of its powers, under this Act; and

    • (b) has not addressed those concerns to the satisfaction of the Minister despite paragraph (a); and

    • (c) is not able to perform or exercise all or any of its functions, duties, or powers under this Act to the extent that the Minister considers necessary to achieve the purposes of this Act.

    (2) The grounds are that—

    • (a) the territorial authority has had a reasonable opportunity to address any concerns set out in a final report under section 164 about the performance of all or any of its functions and duties, or the exercise of all or any of its powers, under this Act, but has not addressed those concerns to the satisfaction of the Minister:

    • (b) the territorial authority is not able to perform or exercise all or any of its functions, duties, or powers under this Act to the extent that the Minister considers necessary to achieve the purposes of this Act, and the Minister considers it necessary to take action without a review.

    (3) The Minister must not make an appointment under subsection (1) unless—

    • (a) the Minister has given the territorial authority concerned at least 20 working days' written notice of his or her intention to do so and in that notice has invited the territorial authority to make submissions within the notified period; and

    • (aa) the Minister has considered any submissions received by him or her that were made within the notified period; and

    • (b) the chief executive, other territorial authority, regional council, or recognised agency agrees to the appointment in accordance with section 166.

    (4) In making an appointment under subsection (1), the Minister must state the functions, duties, or powers, or any of those functions, duties, or powers, that are transferred to the chief executive, other territorial authority, regional council, or recognised agency.

    (5) However, the Minister may not transfer a territorial authority's function of a recognised agency, if the territorial authority is so recognised under this Act.

166 Requirements for appointment
  • An appointment under section 165 must—

    • (a) be made in writing; and

    • (b) be made by agreement between the Minister and the chief executive, other territorial authority, regional council, or recognised agency concerned; and

    • (c) include any terms and conditions that are agreed, including any financial arrangements.

167 Effect of appointment
  • (1) If an appointment is made under section 165,—

    • (a) the territorial authority from whom all or any functions, duties, or powers are transferred ceases to be responsible for the performance or exercise of those functions, duties, and powers; and

    • (b) the chief executive, other territorial authority, regional council, or recognised agency is responsible for the performance or exercise of those functions, duties, and powers; and

    • (c) the functions, duties, and powers of the chief executive, other territorial authority, regional council, or, as the case may be, recognised agency are deemed to be extended as necessary to enable them to carry out, perform, and exercise the transferred functions, duties, and powers; and

    • (d) the chief executive, other territorial authority, regional council, or, as the case may be, recognised agency may contract out, or enter into arrangements for the carrying out of, the transferred functions, duties, and powers.

    (2) If appointed under section 165, the chief executive, other territorial authority, regional council, or, as the case may be, recognised agency—

    • (a) may perform or exercise the transferred functions, duties, or powers, or any of those functions, duties, or powers, only in place of the territorial authority; and

    • (b) must perform or exercise the functions, duties, or powers of a territorial authority under this Act as if they were the territorial authority, and the provisions of this Act apply accordingly.

    (3) Subsection (1)(d) is subject to section 146(5) and (6).

168 Duration of appointment
  • (1) The Minister must specify the duration of an appointment made under section 165.

    (2) The Minister may renew an appointment.

    (3) When determining whether an appointment should be renewed or whether a new appointment should be made, the Minister must—

    • (a) consider any evidence that the territorial authority from which the transfer was made is or will be capable of performing or exercising its functions, duties, and powers under this Act; and

    • (b) if he or she considers that the territorial authority is or will be so capable, direct the territorial authority to resume all or any of those functions, duties, and powers.

169 Costs, charges, and expenses incurred
  • All costs, charges, and expenses incurred for the purposes of section 165 by the chief executive, other territorial authority, regional council, or recognised agency in performing or exercising any functions, duties, and powers of a territorial authority may be recovered from the territorial authority from which the function, duty, or power was transferred as a debt due to—

    • (a) the Crown, if the chief executive is appointed; or

    • (b) the other territorial authority, regional council, or recognised agency, if it is appointed.

Subpart 3Cost recovery

170 Principles of cost recovery
  • (1) The Minister and the chief executive must take all reasonable steps to ensure that the direct and indirect costs of the Ministry in administering this Act that are not provided for by money that is funded by the Crown for the purpose are recovered under this subpart, whether by way of fees, levies, or otherwise.

    (2) In determining the most appropriate method of cost recovery under section 171, the Minister and the chief executive must take into account, as far as is reasonably practicable, the following criteria:

    • (a) equity, in that funding for a particular function, power, or service, or a particular class of function, power, or service, should generally, and to the extent practicable, be sourced from the users or beneficiaries of the relevant functions, powers, or services at a level commensurate with their use or benefit from the function, power, or service:

    • (b) efficiency, in that costs should generally be allocated and recovered in order to ensure that maximum benefits are delivered at minimum cost:

    • (c) justifiability, in that costs should be collected only to meet the actual and reasonable costs (including indirect costs) or of the provision or exercise of the relevant function, power, or service:

    • (d) transparency, in that costs should be identified and allocated as closely as practicable in relation to tangible service provision for the recovery period in which the service is provided.

    (3) Costs should not be recovered under this subpart unless—

    • (a) there has been appropriate consultation with persons or organisations that the chief executive considers representative of the interests of persons likely to be substantially affected by the exercise of the power; and

    • (b) the persons involved have been given sufficient time and information to make an informed contribution.

    (4) Subsection (3) does not require consultation in relation to specific fees or charges, or the specific levels of fees or charges, so long as the fees or charges set are reasonably within the scope of any general consultation or any consultation carried out for the purposes of section 341 or 342.

    (5) A failure to comply with subsection (3) does not affect the validity of any regulations made for the purposes of this subpart.

    (6) This section does not require a strict apportionment of the costs to be recovered for a particular function or service based on usage.

    (7) Without limiting the way in which fees or charges may be set under this subpart, a fee or charge may be set at a level or in a way that—

    • (a) is determined by calculations that involve an averaging of costs or potential costs:

    • (b) takes into account costs or potential costs of services (that are not directly to be provided to the person who pays the fee or charge but which are an indirect or potential cost) arising from the delivery of the service to a class of persons or all persons who use the service.

171 Methods of cost recovery
  • The methods by which costs may be recovered under this subpart are as follows:

    • (a) fixed fees or charges:

    • (b) fees or charges based on a scale or formula or at a rate determined on an hourly or other unit basis:

    • (c) the recovery by way of fee or charge of actual and reasonable costs expended in or associated with the performance of a service or function:

    • (d) estimated fees or charges, or fees or charges based on estimated costs, paid before the provision of the service or function, followed by reconciliation and an appropriate further payment or refund after provision of the service or function:

    • (e) refundable or non-refundable deposits paid before provision of the service or performance of the function:

    • (f) fees or charges imposed on users of services or on third parties:

    • (g) levies:

    • (h) any combination of the above.

172 Territorial authority responsible for cost recovery collection
  • A territorial authority—

    • (a) may collect an amount payable, if prescribed by regulations made under this subpart; and

    • (a) must collect an amount payable if—

      • (i) the amount is prescribed by regulations made under this subpart; and

      • (ii) the regulations provide for the territorial authority to be the collection agent; and

      • (iii) the requirement to pay the amount in the particular case has not been waived or exempted under this subpart; and

    • (aa) may, if allowed by regulations made under section 175, recover the costs of collection at a rate not exceeding the maximum rate of collection costs specified in the regulations; and

    • (b) must forward the amount collected (other than the costs of collection) to the Ministry.

173 Cost recovery to relate generally to financial year
  • (1) Except as provided in subsection (2), any regulations under this subpart that set a fee, charge, or levy that applies in any financial year—

    • (a) must have been made before the start of that financial year; but

    • (b) except as the regulations may otherwise provide, apply in that year and all subsequent years until revoked or replaced.

    (2) Subsection (1) does not prevent the alteration or setting during any financial year of a fee, charge, or levy payable in that year if either

    • (a) the fee, charge, or levy is reduced or removed, or restated, without substantive alteration (or restated without substantive alteration); or

    • (b) in the case of an increase or a new fee, charge, or levy,—

      • (i) appropriate consultation has been carried out with persons or representatives of persons substantially affected by the alteration or setting; and

      • (ii) the Minister is satisfied that those persons, or their representatives, agree or substantially agree with the alteration or setting.

    (3) Subsection (1) does not prevent the amendment of any regulations that set a fee, charge, or levy if any substantive alteration effected by the amendment is for the purpose of correcting an error.

    (4) Recovery may be made in any financial year of any shortfall in cost recovery for any of the preceding 4 financial years, and allowance may be made for any over-recovery of costs in those years (including any estimated shortfall or over-recovery for the immediately preceding financial year).

174 Three-yearly review of cost recovery
  • (1) The Minister must review the levels and methods of cost recovery in relation to any class of food or food product, food product business, persons, or other matter at least once in every 3-year period occurring since the original setting of, or latest change to, the cost recovery for those things.

    (2) The Minister must ensure that appropriate consultation in accordance with section 341 takes place in relation to each review.

    (3) A review may make provision for recovery in any relevant financial year of any shortfall in cost recovery for any of the preceding 4 financial years, or make allowance for any over-recovery of costs in those years (including any estimated shortfall or over-recovery for the immediately preceding financial year).

    (4) Subsection (1) does not—

    • (a) require all areas of cost recovery to be reviewed at the same time:

    • (b) impose any time limit on the making of regulations to implement the results of a review.

174A Regulations about fees, charges, and levies
  • The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations imposing and setting fees, charges, levies, and other cost recovery mechanisms for the purposes of this Act in accordance with the requirements for regulations made under sections 175 and 177, including—

    • (a) fees or charges for applications, renewals, or related matters under this Act:

    • (b) fees, charges, or levies that are payable on an ongoing basis by a person given a particular status under this Act.

175 Regulations may impose fees and charges
  • (1) Regulations may be made under this section, on the recommendation of the Minister, prescribing fees and charges for the purposes of this subpart.

    (2) The fees may be prescribed using any 1 or more of the methods specified in section 171.

    (3) Different fees and charges, or different rates or types of fees or charges, may be prescribed in respect of different classes or descriptions of food, food products, persons or businesses, operations, or other matters, or any combination of them.

    (4) Without limiting subsection (3), the fees and charges prescribed may—

    • (a) differ depending on whether or not a special or an urgent service is provided:

    • (b) include more than 1 level of fee or charge for the same service provided in different ways, or provided in or in respect of different places:

    • (c) differ for otherwise similar services provided in different ways:

    • (d) differ for otherwise similar services provided to different categories of persons:

    • (e) differ depending on the amount of service required or the components of the service required for the particular person or class of persons.

    (5) If regulations prescribe a formula for determining a fee or charge, the formula may specify the value attributed to any component of that formula.

    (6) The Minister may not recommend the making of regulations under this section unless satisfied that, to the extent appropriate in the circumstances, the requirements of sections 170 and 173 have been met.

    (7) This section does not limit or affect section 176.

    (8) Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

176 Territorial authority to set fees
  • (1) The fees payable to a territorial authority are those reasonable fees prescribed by resolution of the territorial authority for its functions under this Act.

    (2) Any resolution made under subsection (1) may fix fees to recover the direct and indirect costs of all or any of the following functions of the territorial authority under this Act:

    • (a) registration:

    • (b) verification:

    • (c) compliance and monitoring activities.

    (3) In prescribing fees under this section, the territorial authority must have regard to the principles of cost recovery set out in section 170.

    (4) The fees prescribed under subsection (1) must not provide for the territorial authority to recover more than the reasonable costs incurred by the territorial authority for the matter in respect of which the fee is charged.

    (5) The territorial authority must use the special consultative procedure as provided in section 83 of the Local Government Act 2002.

    (6) An increase in fees for any financial year must not come into effect other than at the commencement of that financial year.

176 Territorial authority to set fees
  • (1) A territorial authority may, by resolution, fix fees to recover the direct and indirect costs of any of the following functions under this Act:

    • (a) registration:

    • (b) verification:

    • (c) compliance and monitoring activities.

    (2) In making any resolution under this section, the territorial authority must use the special consultative procedure as provided in section 83 of the Local Government Act 2002.

    (3) Any fee fixed under this section must be for a function specified in subsection (1) and a territorial authority must not provide for the recovery of more than the reasonable costs incurred by the territorial authority in performing that function.

    (4) Subsection (3) is subject to and not limited by subsection (5) or (9).

    (5) In fixing fees under this section, the territorial authority—

    • (a) must take into account the criteria in section 170(2); and

    • (b) has the options provided by sections 170(6) and (7) and 171 (other than paragraph (g)); and

    • (c) must comply with any regulations made under section 176A.

    (6) An increase in fees for any financial year must not come into effect other than at the commencement of that financial year.

    (7) Subsection (6) does not prevent the fixing during any financial year of an increased fee or a new fee payable in that year if, following the special consultative procedure, the territorial authority is satisfied that the persons, or their representatives, affected by the increase in fees or the new fees agree or substantially agree with the alteration or fixing.

    (8) Subsection (6) does not prevent the amendment of any resolution that fixes a fee if any substantive alteration effected by the amendment is for the purpose of correcting an error.

    (9) Section 175(3) to (5) applies with the necessary modifications for the purposes of this section.

    (10) To avoid doubt, section 150 of the Local Government Act 2002 does not apply to the fixing of fees by territorial authorities for the purposes of this Act.

176A Regulations may prescribe methodology or framework for fee fixing
  • (1) Regulations may be made under this section, on the recommendation of the Minister, that prescribe a methodology or framework to be applied by a territorial authority in fixing any fees under section 176.

    (2) Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

177 Regulations may impose levies
  • (1) Regulations may be made under this section, on the recommendation of the Minister, prescribing levies for the purposes of this subpart.

    (2) Any levies prescribed by regulation are payable to the chief executive.

    (3) Different levies or rates of levy, or bases on which an amount of levy is to be calculated or ascertained, may be prescribed for—

    • (a) different purposes:

    • (b) different classes or descriptions of food material, food products, persons or businesses, operations, or other matters, or any combination of them.

    (4) Without limiting subsection (1), regulations imposing levies may—

    • (a) specify when and how a levy is to be paid:

    • (b) require that a levy, or estimated amount of levy, be paid in advance of the performance of the services or functions to which it relates:

    • (c) specify persons, other than persons primarily responsible for paying the levy, who are to be responsible for collecting a levy, and provide for retention of any part of the levy money collected as a fee for that service:

    • (d) require, or empower the chief executive to require, the provision of information and returns in relation to levies:

    • (e) require the keeping of separate trust accounts for levy money received or deducted by persons responsible for collecting levies, and prescribe matters in relation to those trust accounts:

    • (f) prescribe a method of arbitration or mediation for disputes as to the following, and provide for related matters, including procedures and remuneration for arbitrators or mediators:

      • (i) whether or not any person is required to pay, or collect, the levy concerned; or

      • (ii) the amount of levy any person is required to pay or collect.

    (5) The Minister may not recommend the making of regulations under this section unless satisfied that, to the extent he or she considers appropriate in the circumstances, the requirements of sections 170 and 173 have been met.

    (6) Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

178 Regulations may provide for exemptions, waivers, and refunds
  • (1) Regulations may be made under this section, on the recommendation of the Minister, that—

    • (a) provide for exemptions from, or waivers or refunds of, any fee, charge, or levy payable under this subpart, in whole or in part, in any class of case:

    • (b) authorise the chief executive to grant an exemption, waiver, or refund in any particular case or class of case:

    • (c) authorise a territorial authority to grant an exemption, waiver, or refund in any particular case or class of case.

    (2) Regulations made under this section must—

    • (a) expire within a specified period not exceeding 5 years; and

    • (b) set out the circumstances in which the exemption, waiver, or refund may be granted.

    (3) Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 341.

179 Trust accounts required to be kept by persons collecting levies
  • (1) If regulations made under section 177 require the operation of a trust account for any levy money by the person responsible for collecting the levy,—

    • (a) any amount held on trust that is due to be paid to the chief executive by the levy collector is to be treated as levy money held on trust for the chief executive; and

    • (b) any amount held on trust is not available for the payment of any creditor (other than the chief executive) of the levy collector, and is not liable to be attached or taken in execution at the instance of any such creditor; and

    • (c) a person who ceases to be responsible for collecting a levy must continue to maintain the trust account until all the levy money payable to the chief executive for the period during which the person was responsible for collecting the levy has been paid.

    (2) Subsection (1)(c) does not affect any obligation or liability under this Act of any other person who has become responsible for collecting the levy concerned.

180 Other charges not requiring to be prescribed
  • (1) This subpart does not prevent the chief executive from requiring a reasonable charge to be paid for any—

    • (a) of the services the Ministry provides in relation to the administration of this Act; or

    • (b) actual and reasonable expenses incurred in providing those services.

    (2) However, subsection (1) does not apply to any services in respect of which a fee or charge or levy is prescribed under this subpart.

    (3) Without limiting subsection (1), and to avoid doubt, the chief executive may—

    • (a) operate a telephone information service for which each caller pays—

      • (i) according to the caller's usage; or

      • (ii) on an averaged basis:

    • (b) charge persons for the cost of mailing posting, faxing, emailing, or couriering information to them:

    • (c) charge for the cost of written material, unless that material is required by an Act or by regulations made under this Act to be provided free of charge:

    • (d) charge for access to any Internet site, or for information or services provided by any Internet site, operated by the Ministry:

    • (e) charge for access to any library or research services provided in relation to matters pertaining to food material, food products, or food-related accessories:

    • (f) charge any person for administrative services provided in relation to a food product business or otherwise under this Act.

    (4) Any money received by the Ministry for charges made under this section must be paid into the Departmental Bank Account.

181 Fees, charges, and levies to constitute debt due to chief executive
  • (1) Any fee, charge, or levy that has become payable to the Crown is—

    • (a) a debt due to the chief executive; and

    • (b) recoverable as a debt by the chief executive in any court of competent jurisdiction.

    (1A) Any fee or charge that has become payable to a territorial authority is—

    • (a) a debt due to the territorial authority; and

    • (b) recoverable as a debt by the territorial authority in any court of competent jurisdiction.

    (2) Until the fee, charge, or levy is paid in full, it remains a debt due to the Crown chief executive or the territorial authority, as the case may be.

182 Penalties for failure to pay fee, charge, or levy
  • (1) If a person has failed to pay to the chief executive by the due date any fee, charge, or levy payable under this subpart,—

    • (a) section 185 applies to increase the amount payable; and

    • (b) section 186 applies to allow the chief executive, in appropriate cases, to waive the payment of all or any of the amount of any such increase; and

    • (c) section 187 applies to allow the chief executive to withdraw, or refuse to provide the person in default with, any service of the kind to which the debt relates.

    (2) For the purposes of subsection (1)(c) and section 187, and without limiting section 186, the references in those provisions to the withdrawal or refusal to provide any service are to be treated as also authorising the chief executive, in an appropriate case, to—

    • (a) withhold or suspend any approval under this Act:

    • (b) refuse to perform any function under this Act in relation to the person in default:

    • (c) withhold the registration of any food control plan.

    (3) If the withdrawal of any approval or registration under this section, or any suspension of operations, requires the chief executive to provide any further service, perform any further function, or incur any further costs in the interests of ensuring the fitness, for the intended purpose, of the food involved in the withdrawal or suspension, the chief executive may recover any reasonable amount for the additional service, function, or costs as a debt due from the person who owns or is responsible for the operation concerned.

    (4) This section does not apply to any debt owed to the Ministry by a territorial authority.

183 Dispute does not suspend obligation to pay fee, charge, levy, or penalty
  • A dispute between a person and the chief executive about the person’s liability to pay a fee, charge, levy, or penalty under this subpart does not suspend—

    • (a) the obligation of the person to pay the fee, charge, levy, or penalty; or

    • (b) the right of the chief executive to receive and recover the fee, charge, levy, or penalty.

184 Levy regulations to be confirmed
  • (1) Subsection (2) applies if, in any year, regulations imposing a levy have been made under this subpart on or after 1 January in any year and before 1 July in that year, and—

    • (a) have not been revoked with effect on or before 1 July in that the following year; and

    • (b) have not ceased, and will not cease, to have effect on or before 1 July in the following year by virtue of the Regulations (Disallowance) Act 1989 Part 3 of the Legislation Act 2012.

    (2) Regulations described in subsection (1) are to be treated as having been revoked with the close of 30 June in the year after the year in which they were made unless confirmed by an Act of Parliament passed on or before that day.

    (3) Subsection (4) applies where if, in any year, regulations imposing a levy have been made under this subpart after 30 June in any year and on or before 31 December in that year, and—

    • (a) have not been revoked with effect on or before 1 January in the year after the next year; and

    • (b) have not ceased, and will not cease, to have effect on or before 1 January in the year after the next year by virtue of the Regulations (Disallowance) Act 1989 Part 3 of the Legislation Act 2012.

    (4) Regulations described in subsection (3) are to be treated as having been revoked with the close of 31 December in the year after the year in which they were made unless confirmed by an Act of Parliament passed on or before that day.

Subpart 4Payment of statutory debt

185 Penalty for failure to pay statutory fees, etc
  • (1) In this section, and in sections 186 and 187, statutory debt

    • (a) means any fee, charge, or levy required to be paid to the Ministry or the holder of any specified office by—

      • (i) an enactment administered by the Ministry; or

      • (ii) any direction or other instrument made or issued under an enactment administered by the Ministry, other than an enactment that provides for the payment of interest or a monetary penalty for late payment of, or failure or refusal to pay, the fee, charge, or levy; but

    • (a) means any fee, charge, or levy required to be paid to the Ministry or the holder of any specified office by or under this Act; but

    • (b) does not include any debt owed to the Ministry by a territorial authority.

    (2) If, after the expiry of the time provided for by the enactment or under this Act or by subsection (4), all or any part of a statutory debt remains unpaid, the debt increases by an amount calculated in accordance with subsection (3).

    (3) The amount by which an unpaid statutory debt, or any unpaid part of a statutory debt, increases is the sum of—

    • (a) 10% of the debt (or of that part of the debt that remained unpaid after the expiry of the time provided for the debt’s payment); and

    • (b) for every complete period of 6 months after that expiry during which the debt or any part of it (including any deemed increase calculated under this subsection) has remained unpaid, 10% of the debt or that part.

    (4) If a time for payment is not provided for by an enactment or under this Act, the debt must be paid within 20 working days after the written demand for payment from the Ministry is received by the person responsible for payment.

    (5) When the Ministry notifies a person of the incurring of a statutory debt, it must also notify that person of the consequences of non-payment under this section.

    (6) This section applies only in respect of statutory debts that first arise after the commencement of this Act.

186 Waiver of penalty
  • (1) The chief executive may waive the payment of all or any part of the penalty added to the debt under section 185 if he or she is satisfied that the failure or refusal of a person to pay all or any part of a statutory debt was a result of a genuine dispute between the person and the Ministry as to either or both of the following:

    • (a) the person’s liability to pay the debt:

    • (b) the amount of the debt.

    (1A) The chief executive may also waive the payment of all or any part of the penalty if he or she is satisfied that there is some other good reason for waiving payment.

    (2) In any action for the recovery of a statutory debt, the court may waive the payment of all or any part of the penalty added to the debt under section 185 if the court is satisfied that the failure or refusal of a person to pay all or any part of a statutory debt was a result of a genuine dispute between the person and the Ministry as to either or both of the following:

    • (a) the person’s liability to pay the debt:

    • (b) the amount of the debt.

187 Services may be withdrawn until debt paid
  • (1) If the chief executive is satisfied under subsection (2), he or she may give written notice to the person liable to pay the statutory debt stating that service of the kind to which the debt relates may be withdrawn or no longer provided to the person unless—

    • (a) the debt is paid within 20 working days; or

    • (b) the chief executive agrees that the debt or part of the debt is not payable.

    (2) The chief executive must be satisfied that—

    • (a) a statutory debt has been correctly calculated; and

    • (b) the time provided by the enactment concerned or under this Act (or by section 185(4)) for the debt’s payment has expired; and

    • (c) the debt has not been paid.

    (3) The chief executive may withdraw or refuse to provide the service concerned if—

    • (a) 20 or more working days have expired since the chief executive gave any person notice under subsection (1); and

    • (b) the person concerned has not—

      • (i) paid the statutory debt or part of the statutory debt concerned; or

      • (ii) satisfied the chief executive that it is not payable.

    (4) If the chief executive has withdrawn or refused to supply a service under subsection (3), the chief executive is not required to reinstate or supply it until a court holds that—

    • (a) the debt or part of the debt concerned is paid; or

    • (b) the debt or part of the debt is not payable; or

    • (c) some lesser amount is payable, and the amount is so paid.

Subpart 5Offences

Infringement offences

188 Proceedings for infringement notices
  • (1) This section applies when a person is alleged to have committed an infringement offence.

    (2) Proceedings may be taken against a person under the Summary Proceedings Act 1957.

    (3) Alternatively, an infringement notice may be served on the person under section 189. In that case,—

    • (a) proceedings for the offence may be commenced in accordance with section 21 of the Summary Proceedings Act 1957; and

    • (b) section 21 of that Act applies with all necessary modifications.

    (2) The person may—

    • (a) be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or

    • (b) be served with an infringement notice as provided in section 189 and, in that case, section 21 of the Summary Proceedings Act 1957 applies with all necessary modifications.

    (3) Proceedings commenced in the way described in subsection (2)(a) do not require leave of a District Court Judge or Registrar under section 21(1)(a) of the Summary Proceedings Act 1957.

189 Issue and cancellation of infringement notices
  • (1) An infringement notice may be served on a person if a food safety officer—

    • (a) observes the person committing an infringement offence; or

    • (b) reasonably believes that the person is committing an infringement offence; or

    • (c) reasonably believes that the person has committed an infringement offence.

    (2) An infringement notice may be cancelled by a food safety officer if—

    • (a) the interests of justice require cancellation; and

    • (b) neither the particulars of a reminder notice nor a notice of hearing relating to the infringement notice has been filed in a District Court.

    (3) An infringement notice is cancelled by the service of a cancellation notice.

    (4) An infringement notice or a cancellation notice may be served by a food safety officer personally delivering it to the person alleged to have committed the infringement offence. A different food safety officer from the one who issued the notice may deliver the notice and the notice served may be a copy.

    (5) Alternatively, an infringement notice or a cancellation notice may be served by post addressed to,—

    • (a) if the person is a natural person,—

      • (i) the address of the person's last-known place of residence; or

      • (ii) the address on the person's driving licence; or

      • (iii) the person's address on the latest electoral roll; or

      • (iv) the person's last-known registered address, if the person has or has had a registered address for any purpose; or

      • (v) the person's address in the latest telephone directory; or

      • (vi) the address of the person's last-known place of business; or

    • (b) if the person is not a natural person,—

      • (i) the person's last-known registered address, if the person has or has had a registered address for any purpose; or

      • (ii) the person's address in the latest telephone directory; or

      • (iii) the address of the person's last-known place of business.

    (6) For the purposes of the Summary Proceedings Act 1957, an infringement notice or a cancellation notice served under subsection (5) is treated as having been served on the person when it was posted.

190 Form of infringement notice
  • (1) An infringement notice must be in the form prescribed under section 353.

    (2) The prescribed form must contain the following details:

    • (a) sufficient details to inform the person served with the notice of the time, place, and nature of the alleged offence; and

    • (b) the amount of the infringement fee prescribed for the offence; and

    • (c) the time within which the infringement fee must be paid; and

    • (d) the address of the place at which the infringement fee must be paid; and

    • (e) a statement of the person's right to ask for a hearing; and

    • (f) a statement of the person's right to ask for cancellation of the notice; and

    • (g) a statement of what will happen if the person does not pay the infringement fee or ask for a hearing or ask for cancellation of the notice; and

    • (h) a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957.

191 Payment of infringement fees
  • All infringement fees paid for infringement offences must be paid to the body—that is, the Ministry or a territorial authority—on whose behalf the food safety officer issued the infringement notice.

Offences

192 Offence involving knowingly or recklessly endangering or harming
  • (1) A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act and—

    • (a) the person knows that the breach or failure endangers or harms or is likely to endanger or harm the lives or health of members of the public or the life or health of an individual; or

    • (b) the person is reckless as to whether the breach or failure endangers or harms or is likely to endanger or harm the lives or health of members of the public or the life or health of an individual.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 5 years; and

      • (ii) a fine not exceeding $100,000.

193 Offence involving knowingly or recklessly creating or increasing risk
  • (1) A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act and—

    • (a) the person knows that the breach or failure—

      • (i) directly or indirectly creates a risk to the lives or health of members of the public or to the life or health of an individual; or

      • (ii) directly or indirectly increases the likelihood of an existing risk to the lives or health of members of the public or to the life or health of an individual being realised; or

    • (b) the person is reckless as to whether the breach or failure—

      • (i) directly or indirectly creates a risk to the lives or health of members of the public or to the life or health of an individual; or

      • (ii) directly or indirectly increases the likelihood of an existing risk to the lives or health of members of the public or to the life or health of an individual being realised.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $300,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 2 years; and

      • (ii) a fine not exceeding $75,000.

194 Offence involving negligently endangering, harming, creating risk, or increasing risk
  • (1) A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act and the person ought reasonably to have known that the breach or failure may—

    • (a) endanger or harm the lives or health of members of the public or the life or health of an individual; or

    • (b) directly or indirectly create a risk to the lives or health of members of the public or the life or health of an individual; or

    • (c) directly or indirectly increase the likelihood of an existing risk to the lives or health of members of the public or the life or health of an individual being realised.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 1 year; and

      • (ii) a fine not exceeding $50,000.

195 Offences involving intentionally defeating purpose of Act or deceiving in relation to documents or information
  • (1) A person commits an offence if the person, with intent to defeat the purpose of this Act or to deceive deceive and for the purpose of obtaining any material benefit or avoiding any material detriment,—

    • (a) provides a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act that—

      • (i) an applicable requirement of this Act requires to be provided to the officer or person; and

      • (ii) is false or misleading in a material detail; or

    • (b) fails to provide a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act, contrary to an applicable requirement of this Act; or

    • (c) alters, conceals, or destroys a document or information, contrary to an applicable requirement of this Act.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 5 years; and

      • (ii) a fine not exceeding $100,000.

196 Offences involving documents or information
  • (1) A person commits an offence if the person—

    • (a) provides a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act that—

      • (i) an applicable requirement of this Act requires to be provided to the officer or person; and

      • (ii) is false or misleading in a material detail; or

    • (b) fails to provide a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act, contrary to an applicable requirement of this Act; or

    • (c) alters, conceals, or destroys a document or information, contrary to an applicable requirement of this Act.

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence defences to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to a fine not exceeding $50,000.

197 Offences involving intentionally defeating purpose of Act or deceiving in relation to identifying or representing food
  • (1) A person commits an offence if the person, with intent to defeat the purpose of this Act or to deceive deceive and for the purpose of obtaining any material benefit or avoiding any material detriment,—

    • (a) alters, falsifies, misapplies, misrepresents, misuses, removes, or fails to apply a form of identification of food, contrary to an applicable requirement of this Act; or

    • (b) adulterates, misrepresents, or tampers with food or a food-related accessory so that it does not conform with—

      • (i) its label:

      • (ii) its package:

      • (iii) a statement made under section 258.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 5 years; and

      • (ii) a fine not exceeding $100,000.

    (4) In this section, misrepresentation, in relation to food or a food-related accessory, includes both a graphic and verbal misrepresentation in all forms as to the source, consignment, characteristics, description, labelling, safety and suitability, intended use, composition, ingredients or other constituents, and the proportion of ingredients or other constituents of the food or food-related accessory.

198 Offences involving identifying or representing food
  • (1) A person commits an offence if the person—

    • (a) alters, falsifies, misapplies, misrepresents, misuses, removes, or fails to apply a form of identification of food, contrary to an applicable requirement of this Act; or

    • (b) adulterates, misrepresents, or tampers with food or a food-related accessory so that it does not conform with—

      • (i) its label:

      • (ii) its packaging:

      • (iii) a statement made under section 258.

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence defences to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to a fine not exceeding $50,000.

    (6) In this section, misrepresentation, in relation to food or a food-related accessory, includes both a graphic and verbal misrepresentation in all forms as to the source, consignment, characteristics, description, labelling, safety and suitability, intended use, composition, ingredients or other constituents, and the proportion of ingredients or other constituents of the food or food-related accessory.

199 Offences involving intentionally defeating purpose of Act or deceiving in relation to sampling, testing, or evidence
  • (1) A person commits an offence if the person, with intent to defeat the purpose of this Act or to deceive,—

    • (a) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, or test results produced by or for a person who operates under a risk management tool for the purposes of—

      • (i) the risk management tool; or

      • (ii) an applicable requirement of this Act; or

    • (b) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, test results produced, or evidence taken by a food safety officer or recognised agency or recognised person in performing a function or duty, or exercising a power, under this Act; or

    • (c) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, test results produced, or evidence taken by an approved laboratory or an approved person in performing a function or duty, or exercising a power, under this Act; or

    • (d) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, or test results produced for the purposes of the person's compliance with section 276(2)(c) or with any other applicable requirement of this Act.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (1) A person commits an offence if the person, with intent to deceive and for the purpose of obtaining any material benefit or avoiding any material detriment, falsifies, suppresses, or tampers with—

    • (a) a sample of food taken, an example of a food-related accessory taken, test procedures done, or test results produced,—

      • (i) for the purposes of a risk-based measure or an applicable requirement of this Act, by or for a person who operates under the risk-based measure; or

      • (ii) for the purposes of the person's compliance with section 276(2)(c) or with any other applicable requirement of this Act; or

    • (b) a sample of food taken, an example of a food-related accessory taken, test procedures done, test results produced, or evidence taken—

      • (i) by a food safety officer or recognised agency or recognised person in performing a function or duty, or exercising a power, under this Act; or

      • (ii) by an approved laboratory or an approved person in performing a function or duty, or exercising a power, under this Act.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 5 years; and

      • (ii) a fine not exceeding $100,000.

200 Offences involving sampling, testing, or evidence
  • (1) A person commits an offence if the person—

    • (a) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, or test results produced by or for a person who operates under a risk management tool for the purposes of—

      • (i) the risk management tool; or

      • (ii) an applicable requirement of this Act; or

    • (b) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, test results produced, or evidence taken by a food safety officer or recognised agency or recognised person in performing a function or duty, or exercising a power, under this Act; or

    • (c) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, test results produced, or evidence taken by an approved laboratory or an approved person in performing a function or duty, or exercising a power, under this Act; or

    • (d) falsifies, suppresses, or tampers with a sample of food or an example of a food-related accessory taken, test procedures done, or test results produced for the purposes of the person's compliance with section 276(2)(c).

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to a fine not exceeding $50,000.

201 Offences involving intentionally defeating purpose of Act or deceiving in relation to statements
  • (1) A person commits an offence if the person, with intent to defeat the purpose of this Act or to deceive deceive and for the purpose of obtaining any material benefit or avoiding any material detriment,—

    • (a) makes a false or misleading statement or a material omission in a statement published under section 254; or

    • (b) makes a statement that appears purports to be a statement made under section 258 or a statement of the New Zealand Government's assurance about food or a consignment of food; or

    • (c) falsifies or misuses a statement made under section 258.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 5 years; and

      • (ii) a fine not exceeding $100,000.

202 Offences involving statements
  • (1) A person commits an offence if the person—

    • (a) makes a false or misleading statement or a material omission in a statement published under section 254; or

    • (b) makes a statement that appears purports to be a statement made under section 258 or a statement of the New Zealand Government's assurance about food or a consignment of food; or

    • (c) falsifies or misuses a statement made under section 258.

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence defences to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to a fine not exceeding $50,000.

203 Offence involving knowingly or recklessly selling non-complying food
  • (1) A person commits an offence if—

    • (a) the person sells food that—

      • (i) is not safe or suitable for its intended purpose; or

      • (ii) has not been produced or processed and handled as required by an applicable requirement of this Act; or

      • (iii) does not comply with an applicable requirement of this Act; and

    • (b) the person—

      • (i) knows that the food is as described in paragraph (a); or

      • (ii) is reckless as to whether the food is as described in paragraph (a).

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 2 years; and

      • (ii) a fine not exceeding $100,000.

204 Offences involving knowingly or recklessly importing non-complying food
  • (1) A person commits an offence if—

    • (a) the person imports food to sell that is not safe or not suitable; and

    • (b) the person—

      • (i) knows that the food is not safe or not suitable; or

      • (ii) is reckless as to whether the food is safe or suitable.

    (2) A person commits an offence if—

    • (a) the person breaches prescribed criteria for the categorisation of requirements for imported food; and

    • (b) the person—

      • (i) knows that the person is breaching the criteria requirements; or

      • (ii) is reckless as to whether the person is breaching the criteria requirements.

    (3) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (4) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 2 years; and

      • (ii) a fine not exceeding $100,000.

205 Offences involving imported food
  • (1) A person commits an offence if the person—

    • (a) sells food that was imported on the basis that it was for personal consumption only; or

    • (b) sells food for human consumption that was imported on the basis that it was not for human consumption; or

    • (c) breaches or fails to comply with any of sections 99, 101, and 102 section 99.

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (2) A person commits an offence if the person,—

    • (a) knowing that or being reckless as to whether food was imported on the basis that it was for personal consumption only, sells that food; or

    • (b) knowing that or being reckless as to whether food was imported on the basis that it was not for human consumption, sells that food; or

    • (c) knowing that the person is not a registered importer or being reckless as to whether the person is a registered importer, breaches or fails to comply with section 99.

    (3) In a prosecution for an offence against this section subsection (1), it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence to a prosecution for an offence against this section.

    (4) Sections 220 and 222 contain defences to a prosecution for an offence against subsection (1).

    (5) A person who commits an offence against this section subsection (1) is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $200,000:

    • (b) for an individual, to a fine not exceeding $50,000.

    (6) A person who commits an offence against subsection (2) is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $500,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 2 years; and

      • (ii) a fine not exceeding $100,000.

206 Offence involving intentionally hindering or obstructing official
  • (1) A person commits an offence if the person intentionally hinders or obstructs a person—

    • (a) who is one of the following:

      • (i) a food safety officer; or

      • (ii) an officer of a territorial authority performing a function or duty, or exercising a power, under this Act; or

      • (iii) a person assisting an officer described in subparagraph (i) or (ii); or

      • (iv) a person employed by a recognised agency; or

      • (v) a recognised person; or

      • (vi) a person appointed under section 327(2); and

    • (b) who is performing a function or duty, or exercising a power, under—

      • (i) a risk management tool risk-based measure; or

      • (ii) an applicable requirement of this Act.

    (2) Without limiting what constitutes intentionally hindering or obstructing, intentionally hindering or obstructing includes failing to allow a person to perform a function or duty or to exercise a power under this Act.

    (3) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (4) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 3 months; and

      • (ii) a fine not exceeding $50,000.

207 Offence involving threatening or assaulting official
  • (1) A person commits an offence if the person threatens or assaults a person—

    • (a) who is one of the following:

      • (i) a food safety officer; or

      • (ii) an officer of a territorial authority performing a function or duty, or exercising a power, under this Act; or

      • (iii) a person assisting an officer described in subparagraph (i) or (ii); or

      • (iv) a person employed by a recognised agency; or

      • (v) a recognised person; or

      • (vi) a person appointed under section 327(2); and

    • (b) who is performing a function or duty, or exercising a power, under—

      • (i) a risk management tool risk-based measure; or

      • (ii) an applicable requirement of this Act.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 3 months; and

      • (ii) a fine not exceeding $50,000.

208 Offence involving intentionally deceiving by pretending to be official
  • (1) A person commits an offence if, with intent to deceive, the person pretends to be—

    • (a) a food safety officer; or

    • (b) an officer of a territorial authority performing a function or duty, or exercising a power, under this Act; or

    • (c) a person assisting an officer described in paragraph (a) or (b); or

    • (d) a person employed by a recognised agency; or

    • (e) a recognised person; or

    • (f) a registration authority performing a function or duty, or exercising a power, under this Act.

    (2) A prosecution for an offence against this section may be proceeded with summarily or on indictment.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 3 months; and

      • (ii) a fine not exceeding $50,000.

209 Offences involving publishing non-complying advertisement
  • (1) A person commits an offence if both subsections (2) and (3) apply.

    (2) This subsection applies if the person publishes an advertisement relating to food or a food-related accessory that—

    • (a) does not comply with all applicable requirements of this Act relating to advertising or promoting food or food-related accessories; or

    • (b) is false as to the age, composition, effects, nature, origin, purity, quality, or strength of the food or the safety or suitability of the food or the safety or suitability of the food-related accessory; or

    • (c) is likely to deceive a buyer as to the age, composition, effects, nature, origin, purity, quality, or strength of the food or the safety or suitability of the food or the safety or suitability of the food-related accessory; or

    • (d) is prohibited by a requirement of this Act from being marked on or attached to the kind of food or the kind of food-related accessory or packages containing that kind of food or that kind of food-related accessory; or

    • (e) makes a statement prohibited by a requirement of this Act to be made in an advertisement relating to the kind of food or the kind of food-related accessory; or

    • (f) expressly or impliedly qualifies, or is contrary to, details required by a requirement of this Act to be marked on or attached to the kind of food or the kind of food-related accessory or packages containing that kind of food or that kind of food-related accessory; or

    • (g) omits from the name or description of the food or the food-related accessory any word or words required by a requirement of this Act to be included in the name or description marked on or attached to the kind of food or the kind of food-related accessory or packages containing that kind of food or that kind of food-related accessory; or

    • (h) fails to make a statement required by a requirement of this Act to be made in an advertisement relating to the kind of food or the kind of food-related accessory; or

    • (i) fails to show, in an advertisement shown on a screen, a word or words or a statement required by paragraph (g) or (h) in clearly legible lettering for a sufficient length of time for an ordinary viewer to read them.

    (3) This subsection applies if the person publishes the advertisement as—

    • (a) the person selling, promoting the sale, or appearing to promote the sale of the food or the food-related accessory; or

    • (b) the agent or employee of the person selling, promoting the sale, or appearing to promote the sale of the food or the food-related accessory.

    (4) A prosecution for an offence against this section may be proceeded with summarily.

    (5) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (6) Section 221 contains a defence to a prosecution for an offence against this section.

    (7) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to a fine not exceeding $50,000.

209A Offences involving automated electronic system
  • (1) A person commits an offence who intentionally obstructs or hinders an automated electronic system doing an action under section 337A(2).

    (2) A person commits an offence who knowingly damages or impairs an automated electronic system.

    (3) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $250,000:

    • (b) for an individual, to—

      • (i) imprisonment for a term not exceeding 3 months; and

      • (ii) a fine not exceeding $50,000.

210 Offence involving breaching or failing to carry out duty
  • (1) A person commits an offence if the person breaches or fails to carry out the duty specified in section 18 12A.

    (1A) A person commits an offence if the person breaches or fails to carry out a duty specified in section 41 (food control plans must be registered) or section 76 (food businesses subject to national programme must be registered).

    (2) A person who is the operator of a food control plan or the operator of a food business to which the plan applies commits an offence if the person breaches or fails to carry out a duty specified in section 45(1)(a) to (g).

    (3) A person who is the operator of a food business subject to a national programme commits an offence if the person breaches or fails to carry out a duty specified in section 77.

    (4) A person who is an importer commits an offence if the person breaches or fails to carry out a duty under section 101 or 102.

    (4A) A person commits an offence if the person breaches or fails to carry out a duty specified in section 144 (duties of recognised agencies) or section 144A (duties of recognised persons).

    (5) A prosecution for an offence against this section may be proceeded with summarily.

    (6) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (7) Section 220 contains a defence to a prosecution for an offence against this section.

    (7) Sections 220 and 222 contain defences to a prosecution for an offence against this section.

    (8) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $200,000:

    • (b) for an individual, to a fine not exceeding $50,000.

211 Offence involving breaching or failing to comply with suspension or direction, direction, or improvement notice
  • (1) A person commits an offence if the person breaches or fails to comply with—

    • (a) a suspension imposed under section 59, 80, or 113 (including a suspension extended under section 60, 81, or 114); or

    • (b) a direction given by the chief executive under any of sections 246, 247, 249, and 250 to 254; or

    • (c) a direction given by a food safety officer under any of sections 266 to, 267, 268, and 269; or

    • (ca) an improvement notice issued by a food safety officer under section 267A; or

    • (d) a requirement imposed by a food safety officer under any of sections 267, 270, and 272; or

    • (e) a direction given by a food safety officer executing a search warrant; or

    • (f) a requirement imposed by a food safety officer executing a search warrant.

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable to a fine on conviction,—

    • (a) for a body corporate, to a fine not exceeding $300,000:

    • (b) for an individual, to a fine not exceeding $50,000.

212 Offence involving breaching or failing to comply with order
  • (1) A person commits an offence if the person breaches or fails to comply with an order made under any of sections 239, 240, 305, 306, and 308(6)(a).

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (2) A person commits an offence if the person fails or refuses to make property available to the Crown in accordance with section 238(6).

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable to a fine on conviction,—

    • (a) for a body corporate, to a fine not exceeding $300,000:

    • (b) for an individual, to a fine not exceeding $75,000.

    (6) If an order is made under any of sections 239, 240, 305, 306, and 308(6)(a) and an appeal is filed in any court against the making of the order, the court appealed to may grant a stay of proceedings or any other interim relief in respect of the operation of the order as it thinks fit pending the determination of the appeal by that court.

212A Offence involving breaching or failing to comply with food standard, etc
  • (1) A person commits an offence if the person breaches or fails to comply with—

    • (a) a requirement in an adopted joint food standard or a domestic food standard; or

    • (b) a condition imposed under any of sections 24A(5)(b), 26D(4)(d), 56, 136, 144C(3)(a), and 259(6) or under clause 4(4)(e) or 9 of Schedule 4; or

    • (c) a requirement imposed on the person by regulations made under section 346.

    (2) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (3) Sections 220 and 222 contain defences to a prosecution for an offence against this section.

    (4) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $100,000:

    • (b) for an individual, to a fine not exceeding $20,000.

213 Offence involving breaching or failing to comply with requirement
  • (1) A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act.

    (2) A prosecution for an offence against this section may be proceeded with summarily.

    (1) A person commits an offence if the person breaches or fails to comply with—

    • (a) a requirement in this Act; or

    • (b) a requirement in regulations made under this Act; or

    • (c) a requirement in a notice given under this Act; or

    • (d) any other requirement under this Act.

    (3) In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

    (4) Section 220 contains a defence to a prosecution for an offence against this section.

    (4) Sections 220 and 222 contain defences to a prosecution for an offence against this section.

    (5) A person who commits an offence against this section is liable on conviction,—

    • (a) for a body corporate, to a fine not exceeding $100,000 $20,000:

    • (b) for an individual, to a fine not exceeding $20,000 $5,000.

Liability for offences

214 Liability of body corporate
  • (1) This section applies when—

    • (a) a body corporate is charged with an offence against this Act; and

    • (b) for the purpose of the prosecution, it is necessary to establish the body corporate’s state of mind.

    (2) It is sufficient to show that a director, an employee, or an agent of the body corporate, acting within the scope of his or her actual or apparent authority, had the state of mind.

215 Liability of body corporate, principal, or individual
  • (1) This section applies when—

    • (a) a body corporate is charged with an offence against this Act for an action or omission of a director, an employee, or an agent:

    • (b) a principal is charged with an offence against this Act for an action or omission of an agent:

    • (c) an individual is charged with an offence against this Act for an action or omission of an employee or agent.

    (2) The action or omission is treated as also the action or omission of the body corporate, principal, or individual.

    (3) In this section, agent includes a contractor.

216 Liability of director or manager of body corporate
  • (1) This section applies when a body corporate is convicted of commits an offence against this Act.

    (2) A director or manager of the body corporate is also guilty of the offence if it is proved that the director or manager—

    • (a) authorised, permitted, consented, or participated in the act or omission that constituted the offence; or

    • (b) knew, or could reasonably have be expected to have known, that the offence was to be or was being committed and failed to take all practicable steps to prevent or stop it.

    (3) A director or manager may be convicted of an offence against this section even though the body corporate has not been charged with that offence or a similar offence.

217 Parties to offences
  • (1) Section 66 of the Crimes Act 1961 applies to offences against this Act.

    (2) In addition, a person is a party to and guilty of an offence against this Act who conspires with 1 or more other persons to commit an offence against this Act.

    (2) Section 310 of the Crimes Act 1961 applies to offences against this Act.

    (3) In addition, if a body corporate actually commits an offence against this Act, a director or an agent of the body corporate is a party to the offence if the director or agent—

    • (a) authorised, permitted, consented, or participated in the offence; or

    • (b) knew that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

    (4) In addition, a person described in subsection (5) is a party to an offence against this Act that occurs in the following circumstances:

    • (a) a person buys food in a package; and

    • (b) the person sells the food in that package; and

    • (c) the person does not open that package before selling the food; and

    • (d) no employee or agent of the person opens the package before the person sells the food; and

    • (e) the sale of the food constitutes an offence against this Act.

    (5) The persons are—

    • (a) a person who appears from a statement or label on, attached to, or associated with the package to be the person who imported, produced, or processed and handled the food:

    • (b) the person who is the owner of the rights of manufacture of the food:

    • (c) a person who packaged the food:

    • (d) an employee or agent of a person referred to in any of paragraphs (a) to (c) if the employee or agent knew that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

    (6) Accordingly, a person described in subsection (5) is liable in the same manner and to the same extent as if the person had actually sold the food at the time and place at which the sale was made.

218 Defences for liability arising under section 215, 216, or 217
  • (1) Section 223 contains a defence to a prosecution in which liability arises under section 215 or 216.

    (2) Section 224 contains a defence to a prosecution in which liability arises under section 217(6) 217(4) to (6).

Laying information

219 Period within which information must be laid
  • (1) This section applies when an information is to be laid for an offence against this Act.

    (2) The information must be laid within 4 years after the time when the matter of the information arose.

    (3) Section 14 of the Summary Proceedings Act 1957 does not apply to the laying of an information for an offence against this Act.

Provisions about charging documents

219 Charging documents
  • Despite anything to the contrary in the Criminal Procedure Act 2011, a charging document in respect of any offence against this Act may be filed in any case within 4 years after the time when the offence was committed or within any longer time allowed by that other Act.

Defences

220 Defence in prosecution for strict liability offence, except advertising offence
  • (1) This section applies in a prosecution for an offence against any of sections 196, 198, 200, 202, 205(1), and 210 to 213.

    (2) The defendant has a defence if the defendant proves that—

    • (a) the commission of the offence was due to—

      • (i) the act or omission of another person; or

      • (ii) an accident; or

      • (iii) some other cause outside the defendant’s control; and

    • (b) the defendant took all reasonable precautions and exercised due diligence to avoid the commission of the offence or offences of the same kind.

221 Defences in prosecution for advertising offence
  • (1) This section applies in a prosecution for an offence against section 209.

    (2) The defendant has a defence if the defendant proves that—

    • (a) the advertisement was false or likely to deceive because of commission of the offence

      • (i) was the act or omission of another person; or

      • (ii) was an accident; or

      • (iii) resulted from some other cause outside the defendant’s control; and

    • (b) the defendant took all reasonable precautions and exercised due diligence to avoid the advertisement being false or likely to deceive commission of the offence.

    (3) The defendant has a defence if the defendant proves that—

    • (a) the defendant carried on the business of publishing or arranging for the publication of advertisements; and

    • (b) the defendant published or arranged for the publication of the advertisement in the ordinary course of the business.

    (4) Subsection (3) does not apply if the defendant—

    • (a) was informed that publication of the advertisement would constitute an offence—

      • (i) before the advertisement was published; and

      • (ii) in writing; and

      • (iii) by a food safety officer or a person performing functions or duties, or exercising powers, under this Act; or

    • (b) ought reasonably to have known that the publication of the advertisement was an offence; or

    • (c) is the operator of a food business for which the advertisement was published; or

    • (d) is involved in the management of a food business for which the advertisement was published.

222 Defences in prosecution for selling non-complying food
  • (1) This section applies in a prosecution for an offence against any of sections 192 to 205, 210, and 213 205(1), 210, 212A, and 213.

    (2) The defendant has a defence if the defendant proves that—

    • (a) the defendant bought the food in reliance on a statement as to the nature of the food that was in writing and signed supplied by or on behalf of the person from whom the defendant bought the food; and

    • (b) the defendant's sale of the food would not have constituted the offence with which the defendant is charged if the food had in fact conformed to the statement; and

    • (c) the defendant had a reasonable person would have had no reason to suspect that the food did not conform to the statement or that the statement was not genuine; and

    • (d) when the defendant sold the food, it was in the same state condition as it was when the defendant bought it.

    (3) The defendant has a defence if the defendant proves that—

    • (a) the defendant bought the food in a package and sold it in the same package and in the same condition as it was in when the defendant bought it; and

    • (b) the defendant could not reasonably have found out that selling the food would constitute the offence with which the defendant is charged.

    (4) The defences provided by this section only apply to offences involving the sale of non-complying food.

223 Defence in prosecution of body corporate, principal, or individual for action of director, agent, or employee
  • (1) This section applies when a defendant's liability to prosecution arises under section 215 or 216.

    (2) The defendant has a defence if the defendant proves that the defendant took all reasonable steps to prevent the commission of—

    • (a) the particular offence; or

    • (b) all offences of the class committed.

    (3) Subsection (2) is subject to subsection (4).

    (4) The defence under subsection (2) is available to a defendant only to the extent that it can be proved in relation to the act or omission of the relevant other person referred to in section 215, unless the court is satisfied that it would be repugnant to justice for that defence to be so limited, having regard to—

    • (a) any likely or possible benefit accruing to, or detriment suffered by, the person or body corporate from the act or omission in respect of which the proceedings are brought had the alleged offence remained undetected; and

    • (b) the purpose or motive of the relevant other person; and

    • (c) the relationship between the defendant and the relevant other person, or between the defendant and any person appearing or likely to benefit from the alleged offence; and

    • (d) if the defendant is a body corporate, whether or not any person responsible for, or closely associated with, the management of the body corporate appears to have benefited from the act or omission, or would have been likely to benefit if the alleged offence had remained undetected; and

    • (e) whether or not the defendant had taken all reasonable steps and exercised due diligence to control the activities of the relevant other person to ensure that the act or omission did not occur.

224 Defence in prosecution of importer, producer, processor and handler, manufacturing rights owner, or packer
  • (1) This section applies when a defendant's liability to prosecution arises under section 217(4) to (6).

    (2) In a prosecution relating to the condition of food, the defendant has a defence if the defendant proves that the food was in a condition that would not have given rise to the offence when the package in which the food was packed left the defendant's possession.

    (3) In a prosecution relating to the safety of food, the defendant has a defence if the defendant proves that, when or before the food left the defendant's possession, the defendant gave notice to the person to whom the defendant consigned or delivered the food that it was not intended for human consumption.

    (4) In a prosecution relating to a label or package, the defendant has a defence if the defendant proves that the offence with which the defendant is charged arises from an alteration made to the label or package after the label or package left the defendant's possession.

225 Employees and agents have same defences
  • The defences in sections 220 to 224 are available to an employee or agent of a body corporate, a principal, or an individual in the same manner and to the same extent as they would be available to the body corporate, principal, or individual if the body corporate, principal, or individual were charged with the offence.

226 Prosecutor to be notified of defences
  • (1) The defences in sections 220 to 224 are available only if the defendant—

    • (a) prepares a written notice for the prosecutor that complies with subsection (2); and

    • (b) gives the notice to the prosecutor—

      • (i) at least 15 working days before the hearing date; or

      • (ii) within another time that the court allows.

    (2) The notice must—

    • (a) state the defendant's intention to rely on the defence; and

    • (b) include,—

      • (i) in the case of the defence in section 224(3), information about the identity of the person to whom the defendant consigned or delivered the food or an explanation as to why the defendant is unable to identify that person:

      • (ia) in the case of the defence in section 220 or 221, notice in writing identifying the person or the nature of the accident or cause relied on by the defendant:

      • (ii) in any other case, the facts or circumstances that support the defence.

226A Standard of proof for establishing defence
  • The standard of proof for establishing a defence provided by this Part for an offence against this Act is the balance of probabilities.

Evidence

227 Evidence of requirement of this Act
  • (1) This section applies to the production in evidence of the documents described in subsection (2) in a prosecution for an offence against this Act.

    (2) The documents are—

    • (a) a document presented by a food safety officer purporting to be a requirement of this Act; and

    • (b) a copy of the Gazette in which the requirement was notified, if applicable.

    (3) The production in evidence of the documents is sufficient evidence, in the absence of evidence to the contrary, of the existence, notification, and contents of the requirement.

228 Evidence of person’s documents
  • (1) This section applies to the production in evidence of a document described in subsection (2) in a prosecution for an offence against this Act.

    (2) The document is one that—

    • (a) is an application, form, record, report, return, transaction, or other means of stating information; and

    • (b) purports to be completed, kept, or provided by a person or on the person’s behalf.

    (3) The production in evidence of the document is sufficient evidence, in the absence of evidence to the contrary, that the person completed, kept, or provided the document.

229 Evidence of testing
  • (1) This section applies to evidence of a test under this Act or the Agricultural Compounds and Veterinary Medicines Act 1997, Animal Products Act 1999, Biosecurity Act 1993, Customs and Excise Act 1996, Fisheries Act 1983, Fisheries Act 1996, Hazardous Substances and New Organisms Act 1996, Health Act 1956, or Wine Act 2003.

    (2) The evidence may be produced by way of—

    • (a) a certificate given by an employee of a recognised agency; or

    • (b) a certificate given by a recognised person; or

    • (c) a certificate given by an employee of a recognised person; or

    • (d) a certificate given by an employee of an approved laboratory; or

    • (e) some other means acceptable to the court.

    (3) When produced in a prosecution for an offence against this Act, the evidence must not be ruled inadmissible or disregarded only because compliance with the relevant Act's requirements on the taking or testing of a sample of food or of an example of a food-related accessory has been reasonable instead of strict.

    (4) A defendant who wants to challenge the admissibility of the evidence must do so—

    • (a) at least 15 working days before the hearing at which the prosecutor proposes to produce the evidence; or

    • (b) within another time that the court allows.

    (4) However, the evidence is inadmissible if—

    • (a) the prosecutor (or a person authorised by the prosecutor) does not—

      • (i) serve a copy of the certificate or summary of that evidence on the defendant or the defendant's agent or lawyer at least 20 working days before the hearing at which the certificate or evidence is to be tendered; and

      • (ii) at the same time inform the person served, in writing, that the prosecutor does not propose to call the person who signed the certificate or summary as a witness at the hearing; or

    • (b) not less than 5 working days before the hearing (or any lesser period that the court in the special circumstances of the case thinks fit) and on the application of the defendant made within 10 working days after receipt of the certificate or summary, the court orders that the certificate or evidence is inadmissible as evidence in the proceedings.

    (5) The court must not make an order under subsection (4) unless it is satisfied that there is reasonable doubt as to—

    • (a) the accuracy of the information contained or referred to in the certificate or summary of evidence; or

    • (b) the validity of the certificate or summary of evidence.

229A Evidence of office
  • (1) The chief executive may give a certificate stating that a person holds a particular office or position under or relevant to this Act.

    (2) A certificate given under subsection (1) is admissible in any proceedings in a New Zealand court that relate to an offence alleged or proved to have been committed against this Act and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the certificate.

    (3) It is not necessary to prove the signature on a certificate given under this section.

Presumptions

230 Application of sections 231 to 234
  • (1) Sections 231 to 234