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Food Bill 160-2 (2010), Government Bill

Food Bill

Government Bill

160—2

As reported from the Primary Production Committee

Commentary

Recommendation

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

Introduction

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

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

Relationship with other Acts

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

Meaning of food business

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

Meaning of safety and suitability

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

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

Winemaking operations

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

Food control plans

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

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

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

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

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

Regulations about national programmes

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

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

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

Food handler guidance

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

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

Charitable purpose

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

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

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

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

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

Personal development

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

Small scale businesses

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

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

Delegation to territorial authorities

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

Exclusivity of verification functions and activities granted to territorial authorities

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

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

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

Review of operation

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

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

Power to issue improvement notice

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

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

Green Party minority view

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

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

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

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

Appendix

Committee process

The Food Bill was referred to the committee on 22 July 2010. The closing date for submissions was 2 September 2010. We received and considered 66 submissions from interested groups and individuals. We heard 26 submissions.

We received advice from the Food Safety branch of the Ministry of Agriculture and Forestry (formerly the New Zealand Food Safety Authority.) The Regulations Review Committee reported to the committee on the powers contained in clauses 21, 178, 180, 346, 367 and 403.

Committee membership

Shane Ardern (Chairperson)

Hon Jim Anderton

Brendon Burns

Dr Ashraf Choudhary

Craig Foss

Sandra Goudie

Colin King

Hon Damien O’Connor

Sue Kedgley was a non-voting member for this item of business.

Key to symbols used

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Hon Kate Wilkinson

Food Bill

Government Bill

160—2

Contents

1 Title

2 Commencement

Part 1
Preliminary provisions

Subpart 1—Introduction

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 2—Interpretation

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 3—Regulatory 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 4—Primary duty of persons who trade in food

18 Primary duty of persons who trade in food

Part 2
Risk-based measures

Subpart 1—General

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

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

Subpart 2—Food 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 official template or model

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

33 Food control plan: chief executive's power to approve 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

38 Chief executive may register food control plan amended by operator under section 37

39 Operator may amend food control plan based on template or model 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

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 3—National 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

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

Suspension of operations of registered food business under national programme

80 Mandatory suspension

81 Voluntary suspension

Removal of registration of food business

82 Removal from public register

83 Cancellation of registration

84 Surrender of registration

Subpart 4—Monitoring programmes

85 Purpose of this subpart

86 Monitoring programme: general description

87 Monitoring programme: scope

88 How monitoring programme may be imposed

89 Chief executive may specify certain matters by notice

90 Monitoring programme not invalid on certain grounds

Subpart 5—Food 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

94 Exemption if trading in food is for charitable purpose

94A Exemption if trading in food is for personal development purpose

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

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

Subpart 1—Recognised 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

127A Recognition for certain verification functions and activities may only be granted to territorial authorities

127B Review of operation of section 127A

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 2—Territorial 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

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 3—Cost recovery

170 Principles of cost recovery

171 Methods of cost recovery

172 Territorial authority responsible for cost recovery

173 Cost recovery to relate generally to financial year

174 Three-yearly review of cost recovery

175 Regulations may impose fees and charges

176 Territorial authority to set fees

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 due to chief executive

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 4—Payment 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 5—Offences

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

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

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, 216, or 217

Laying information

219 Period within which information must be laid

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

Evidence

227 Evidence of requirement of this Act

228 Evidence of person’s documents

229 Evidence of testing

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 6—Powers 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

Powers and duties of food safety officers

263 Power to ask for assistance

264 Purposes of powers in sections 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

291 Issue of search warrant

292 Form of 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

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 1—Exemptions

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 section 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 2—Immunity, delegation, and review provisions

Protection from civil and criminal liability

322 Protection from civil and criminal liability

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 3—Information 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

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 4—Regulations

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 management tools 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 and recognised 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 5—Food 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

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 6—Notices

Notices

367 Notices: content

368 Notices: consultation

369 Notices: publication

369A Certain notices subject to disallowance

370 Power to issue emergency notice

371 Notification and duration of emergency notice

372 Emergency notice prevails

Subpart 7—Transitional 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

Pre-commencement

379 Pre-commencement legislative requirements

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 8—Miscellaneous

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

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 subject to food handler guidance

Schedule 4
Miscellaneous provisions relating to registrations and recognition

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.

Part 1
Preliminary provisions

Subpart 1—Introduction

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.

    (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 risk-based measure generally applies to food businesses in each of those 3 classes; and

    • (c) require 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

    • (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, improving the safety and suitability of food, imported food, recognised agencies and recognised 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.

    (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

    • (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

  • (1) The purpose of this section is to—

    • (a) clarify 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 animal products and wine; and

    • (b) minimise 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 minimise 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 2—Interpretation

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, but 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

    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 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

    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

    Customs or the Customs has the meaning given to it 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 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

    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, 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, except in sections 267A and 267B, 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

    joint food standard means 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 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

    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

    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 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

    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

    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 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:

    • (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

    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

    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)

    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:

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

    • (d) effectiveness of a risk management tool

    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

    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.

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

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

      • (iii) live animals 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

      • (iv) any cookware and related products; or

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

    (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.

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 trading in food and, in the course of which, 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) 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:

    • (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—

    • (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.

    (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.

    (5A) Food is not unsuitable merely because it contains any substance or thing that is permitted by this Act or a requirement of this Act.

    (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.

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

    • (b) includes—

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

      • (ii) offering food 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, 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 any other place; and

      • (vii) for the purpose of advertisement or to promote any trade or business, 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.

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

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

Subpart 3—Regulatory 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

  • 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 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:

    • (e) the importance of ensuring that regulatory requirements are applied consistently and fairly across sectors and groups in relation to factors such as risk:

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

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 food for the purposes of this Act:

      • (x) declare a business 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 4—Primary 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 1—General

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; 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; and

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

    • (f) requires every person who trades in food to operate the person's food business under the 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

    • (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 persons, groups of persons, or food businesses from operating under food control plans or national programmes (for example, sections 94, 94A, and 95).

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.

    (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).

    (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.

    (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.

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 highest level of risk; or

    • (b) operate the food business under a combination of the risk-based measures specified under section 20(3) for each aspect of the food business.

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.

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—

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

    • (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.

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.

Subpart 2—Food 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 businesses.

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

31 Food control plan: based on official template or model

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

    (2) For the purposes of subsection (1), a food control plan is fully based on a an official 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.

32 Food control plan: chief executive's power to issue 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 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 39.

34 Food control plan: form

  • A food control plan must be in writing in a form acceptable to the chief executive.

    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

    • (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

      • (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 and that require a person to allow verifiers to enter a place for the purpose of carrying out verifications:

    • (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:

    • (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 undergo appropriate training, or to demonstrate competency, in relation to the safety and suitability of food, food production, and food processing and handling, and to provide training for staff as appropriate:

    • (h) requiring the supervision of certain specified persons and the use of equipment in certain specified circumstances:

    • (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.

    (3) This section does not limit the generality of section 347.

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

    • (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) An operator of a registered food control plan based on the template or model that is revoked, and not replaced, in accordance with subsection (1)—

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

    • (b) must, before the expiry of that period, apply to the appropriate registration authority (that is, the relevant territorial 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

  • (1) An operator of a registered food control plan based on a template or model issued by the chief executive under section 32 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 in respect of 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 must forward the application to the chief executive if the appropriate registration authority is not the chief executive.

    (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.

38 Chief executive may register food control plan amended by operator under section 37

  • (1) On receipt of an application made under section 37(3), the chief executive may—

    • (a) require the amended food control plan to be evaluated before registering the plan; and

    • (b) register the amended food control plan as—

      • (i) a food control plan issued under section 32; or

      • (ii) a food control plan that applies only to the food business of the operator who amended the plan.

    (2) If subsection (1)(b)(i) applies, the chief executive must—

    • (a) give written notice of the amendment to the relevant territorial authority; and

    • (b) make an appropriate entry in the relevant public register.

    (3) If subsection (1)(b)(ii) applies, the chief executive becomes the appropriate registration authority in respect of the plan. The chief executive must give written notice to the relevant territorial authority that the relevant territorial authority is no longer the appropriate registration authority in respect of the plan.

39 Operator may amend food control plan based on template or model approved under section 33

  • (1) An operator of a registered food control plan based on a template or model approved 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 appropriate registration authority in respect of the plan (that is, the chief executive).

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

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

    (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 in respect of the plan (that is, the chief executive).

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

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

    (5) If the chief executive considers that the amendment to the food control plan is so extensive that it constitutes a new food control plan, the chief executive 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), 39(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.

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 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 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:

    • (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 person:

    • (g) 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):

    • (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 of each food business agrees to carry out the duties under subsection (1) for the business that person controls.

    (3) To avoid doubt, the duties set out in subsection (1) also apply to the person in control 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.

    (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:

      • (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).

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.

    (2) Relevant territorial authority means,—

    • (a) if the application for registration relates to a place, 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 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; 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).

    (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.

    (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) 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; and

    • (c) an indication of the verifier and verifying agency that will carry out verification functions in respect of the plan; and

    • (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 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.

    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.

    (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:

      • (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

  • If the registration authority 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

    • (b) give the applicant written notice of the date on which the registration takes effect, which notice must state any conditions imposed under section 56.

    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, by written notice to the operator of a food control plan, revoke, amend, or add to any conditions imposed in respect of the plan.

    (3) If the registration authority imposes 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 them; and

    • (b) the operator's right to seek a review of the conditions under section 325.

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, 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, 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.

    (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.

64 Cancellation of registration

  • 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, 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

    • (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).

    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 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 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.

    (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); or

    • (b) if no date is specified, on the date on which the registration authority receives that notice.

Subpart 3—National 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 the food sectors referred to 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 to enter a place 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 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 undergo appropriate training, or to demonstrate competency, in relation to the safety and suitability of food, food production, and food processing and handling, 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.

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:

    • (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 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):

    • (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.

    (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.

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 ensure that the food business is registered 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.

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.

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.

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.

Subpart 4—Monitoring 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)

89 Chief executive may specify certain matters by notice

  • For the purpose of giving effect to a monitoring programme, the chief executive may issue a notice that specifies 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.

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 5—Food 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 the chief executive 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.

    • (b) a person or an organisation to whom section 94 applies (that is, a person or an organisation trading in food for a charitable purpose):

    • (c) a person or group of persons to whom section 94A applies (that is, a person or group of persons trading in food for a personal development purpose):

    • (d) a person who is 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

    • (ab) 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

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

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.

94 Exemption if trading in food is for charitable purpose

  • (1) This section applies if a person or an organisation (whether a body corporate or not)—

    • (a) trades in food for a charitable purpose; and

    • (b) carries out trading in food for that purpose—

      • (i) on a non-commercial scale; and

      • (ii) on either of the following:

        • (A) an infrequent basis that does not exceed, regardless of the location, more than 20 occasions in each calendar year; or

        • (B) a regular or frequent basis so long as the trading is an ancillary or incidental component of activities being undertaken by the person or organisation at the place where the trading occurs (for example, a permanent stall selling donated food at a hospice).

    (2) The person or organisation is exempt from the requirement to operate under a registered food control plan or a national programme.

    (3) However, the person or organisation must operate under any food handler guidance that applies to the trade in food concerned.

    (4) In this section, charitable purpose includes every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community.

94A Exemption if trading in food is for personal development purpose

  • (1) This section applies if a person or group of persons—

    • (a) trades in food for a personal development purpose; and

    • (b) carries out trading in food for that purpose—

      • (i) on a non-commercial scale; and

      • (ii) on an infrequent basis that does not exceed, regardless of the location, more than 20 occasions in each calendar year.

    (2) The person or group is exempt from the requirement to operate under a registered food control plan or a national programme.

    (3) However, the person or group must operate under any food handler guidance that applies to the trade in food concerned.

    (4) In this section, personal development purpose means a purpose that relates to the intellectual, emotional, physical, social, cultural, or other personal development of a person or members of a group.

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.

    (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 employ or engage any other person to assist in the production or sale of the food; and

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

    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 1 or more territorial authorities.

    (2) A person territorial authority 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 (subject to subsection (7)) and with the same effect as if they had been imposed or conferred on that person territorial authority 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 territorial authority.

    (4) A person territorial authority 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.

    (7) A delegation of the chief executive's power to grant an exemption under section 95 must be subject to the following conditions:

    • (a) the exemption may only be granted to a food business that is operating entirely within the district of the territorial authority to whom 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.

    (8) A territorial authority acting under delegation must grant, amend, or revoke an exemption under section 95 in accordance with the special consultative procedure specified in section 83 of the Local Government Act 2002 rather than in the manner specified in section 95(4).

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 A is a registered importer; or

    • (b) if person A is not a registered importer, person A 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 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 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).

    (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 into New Zealand, there must be a person resident in New Zealand (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007) 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 the chief executive; 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 take into account all of the following matters:

    • (a) any specified conviction entered against the applicant or any director or manager of the applicant:

    • (b) whether there has in the past been a serious or repeated failure by 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.

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 on the relevant public register; and

    • (b) give the applicant written notice of the date on which the registration takes effect.

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 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.

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, the chief executive may—

    • (a) direct that any food 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.

    (2) A suspension under section 113 or 115 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.

118 Cancellation of registration

  • 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).

    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.

122 Effective date of surrender

  • A surrender takes effect on the date stated in the relevant public register.

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

Subpart 1—Recognised 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.

    (6) This section is subject to section 127A.

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 any recognition granted under subsection (1) accordingly, to the extent they are relevant and with all necessary modifications.

    (3) This section is subject to section 127A.

127A Recognition for certain verification functions and activities may only be granted to territorial authorities

  • (1) Despite sections 126 and 127, the chief executive must not recognise any person or body besides a territorial authority as an agency that, for the purposes of this Act, is responsible for carrying out verification functions and activities in relation to a food business that is—

    • (a) operating under a food control plan based on a template or model issued under section 32; and

    • (b) operating entirely within the district of a single territorial authority; and

    • (c) selling food directly to consumers.

    (2) To avoid doubt, nothing in this section limits or affects the application of sections 130 to 144 and 157 to 169 in respect of a territorial authority carrying out verification functions and activities described in subsection (1).

127B Review of operation of section 127A

  • 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 127A 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 127A; and

    • (c) present a report of the review to the Minister within 6 months of commencing the review.

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 any recognition granted under subsection (1) accordingly, to the extent they are relevant and 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 2—Territorial 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, 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:

      • (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) ensure it has adequate resources and capability to carry out its role, functions, and duties and to exercise its powers under this Act:

    • (b) 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) 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) ensure that relevant persons who are employed or engaged by the territorial authority for the purposes of this Act maintain their competencies:

    • (e) 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:

    • (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.

    (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)