3 Overview

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

  (2) This Part contains preliminary provisions that—

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

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

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

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

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

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

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

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

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

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

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

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

  (4) Part 3 contains provisions that—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 Purpose

• The purpose of this Act is to—

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

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

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

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

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

    • (ii) protect and promote public health; and

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

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

5 Application of Act

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

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

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

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

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

  (4) Subsection (3) is subject to—

  • (a) sections 42 and 43; and

  • (b) sections 316 to 319; and

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

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

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

5 Application of Act

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

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

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

  (1) This section achieves its purpose by—

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

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

  (2) This Act applies to—

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

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

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

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

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

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

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

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

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

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

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

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

6 Act binds the Crown

• This Act binds the Crown.

7 Interpretation

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

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

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

  • (a) goods or services; or

  • (b) brand of goods or services; or

  • (c) person who provides goods or services

  appropriate registration authority,—

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

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

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

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

  approved person—

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

  • (b) includes an approved class of persons

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

  Australia–New Zealand Joint Food Standards Agreement—

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

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

  authorised place—

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

  • (b) includes—

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

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

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

  bulk cargo container—

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

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

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

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

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

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

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

  chief executive means the chief executive of the Ministry

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

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

  • (a) restore control; or

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

  • (c) prevent recurrence of the loss of control

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

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

  district means a district of a territorial authority

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

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

  export, in relation to a thing,—

  • (a) means—

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

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

  • (b) includes—

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

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

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

  food has the meaning given to it by section 8

  food business has the meaning given to it by section 9

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

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

  food-related accessory—

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

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

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

  food safety regime—

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

  • (b) includes—

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

    • (ii) risk-based measures; and

  • (c) also includes measures for monitoring—

    • (i) the effectiveness of those provisions:

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

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

  food sector means a group of 2 or more food businesses

  good operating practice means procedures relating to practices that—

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

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

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

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

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

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

  importer—

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

  • (b) includes—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    • (i) in Australia and New Zealand; or

    • (ii) in New Zealand only

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

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

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

  local authority means a regional council or territorial authority

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

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

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

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

  movement includes import, export, and transport

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

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

  notice of recognition means, as applicable,—

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

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

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

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

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

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

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

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

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

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

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

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

  package—

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

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

    • (i) bulk cargo containers:

    • (ii) pallet overwraps:

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

    • (iv) craft and vehicles

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

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

  • (b) other verification functions and activities:

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

  place—

  • (a) includes—

    • (i) any premises:

    • (ii) a building:

    • (iii) a temporary or permanent structure:

    • (iv) a stall:

    • (v) a conveyance:

    • (vi) a craft:

    • (vii) a vehicle:

    • (viii) a bulk cargo container; and

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

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

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

  producer means a person who produces food for sale

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

  public health means the health of—

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

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

  recognised agency—

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

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

  recognised person—

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

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

  recognised agency means—

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

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

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

  recognised person means a natural person who—

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

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

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

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

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

  registered importer means an importer registered under section 109

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

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

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

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

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

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

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

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

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

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

  requirements of this Act includes—

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

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

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

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

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

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

  risk-based measure means any of the following:

  • (a) a food control plan:

  • (b) a national programme:

  • (c) a monitoring programme

  • (d) food handler guidance

  risk management tool—

  • (a) means any of the following:

    • (i) a food control plan:

    • (ii) a national programme:

    • (iii) a monitoring programme; but

  • (b) does not include food handler guidance

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

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

  sale has the meaning given to it by section 12

  specified conviction—

  • (a) means—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  verification agency—

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

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

  verifier means—

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

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

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

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

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

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

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

8 Meaning of food

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

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

  • (b) includes—

    • (i) plants; and

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

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

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

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

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

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

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

  • (c) does not include—

    • (i) any tobacco; or

    • (ii) any cosmetics; or

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

    • (iv) any cookware and related products; or

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

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

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

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

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

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

9 Meaning of food business

• In this Act, unless the context otherwise requires, food business—

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

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

    • (i) transports or stores food; or

    • (ii) sells food on the Internet; or

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

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

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

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

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

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

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

10 Meaning of processing and handling

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

  • (a) preparing the food:

  • (b) manufacturing the food:

  • (c) packing the food:

  • (ca) labelling the food:

  • (d) transporting the food:

  • (e) storing the food:

  • (f) displaying the food:

  • (g) serving the food.

11 Meaning of safety and suitability

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

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

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

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

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

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

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

  • (b) subsection (5) do not apply.

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

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

  • (b) do not include—

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

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

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

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

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

    • (i) that is offensive; or

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

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

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

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

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

  (5) Food is unsuitable if it—

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

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

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

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

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

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

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

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

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

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

12 Meaning of sale

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

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

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

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

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

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

    • (iii) bartering food; and:

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

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

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

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

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

    • (viii) exporting food; and:

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

  • (c) does not include—

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

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

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

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

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

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

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

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

  Compare: 1981 No 45 s 4(1)–(5), (9)

12A Primary duty of persons who trade in food

• A person who trades in food must ensure that it is safe and suitable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15 Role of Minister

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

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

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

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

    • (i) amend Schedules 1 to 3:

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

    • (iii) impose national programmes:

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

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

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

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

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

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

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

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

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

  • (c) adopting joint food standards; and

  • (d) issuing domestic food standards; and

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

16 Role of chief executive

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 Role of territorial authorities

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

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

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

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

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

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

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

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

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

18 Primary duty of persons who trade in food

• A person who trades in food must ensure that it is safe and suitable.

19 Overview of this Part

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

  (2) This Part—

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

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

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

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

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

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

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

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

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

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

• (1) The classification of food sectors under this Part—

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

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

  (2) Accordingly, Schedules 1 to 3—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• (1) This section applies to a food business in a food sector that is not classified in any of Schedules 1 to 3.

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

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

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

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

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

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

• (1) This section applies to a food business carrying out activities that fall into—

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

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

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

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

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

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

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

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

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

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

• (1) This section applies to a person—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25 Requirement to operate under applicable risk-based measure

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

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

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

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

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

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

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

26 Exception to section 25

• Section 25 does not apply if an operator of a food business—

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

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

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

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

26 Exception to section 25

• Section 25 does not apply—

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

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

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

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

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

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

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

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

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

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

• (1) This section applies if—

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

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

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

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

26C Exemption does not apply in prescribed circumstances

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

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

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

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

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

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

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

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

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

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

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

  • (b) on application by any person.

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

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

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

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

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

  • (b) the potential impact on consumers:

  • (c) the frequency and scale of operation:

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

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

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

  (4) An exemption—

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

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

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

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

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

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

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

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

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

  Compare: 1999 No 93 s 14

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

28 Food control plan: general description

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

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

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

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

  Compare: 1999 No 93 s 12

29 Food control plan: development

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

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

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

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

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

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

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

30 Food control plan: coverage

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

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

31 Food control plan: based on template or model

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

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

31 Food control plan: based on official template or model

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

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

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

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

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

• (1) The chief executive may, by notice under section 367,—

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

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

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

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

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

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

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

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

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

• (1) The chief executive may, by notice under section 367, approve a template or model developed by a person other than the chief executive or by a food industry body.

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

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

  (3) An approval must end within—

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

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

  (4) The notice under section 367 must state—

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

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

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

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

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

34 Food control plan: form

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

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

35 Food control plan: contents

• A food control plan must set out—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    • (i) good operating practice; and

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

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

    • (iiia) preventative actions; and

    • (iv) corrective actions; and

    • (v) operator verification activities; and

    • (vi) document control and record keeping; and

  • (g) any validation information as appropriate; and

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

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

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

35A Regulations about food control plans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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