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Digest No. 1785

Food Bill 2010

Date of Introduction: 26 May 2010
Portfolio: Food Safety
Select Committee: As at 28 May, 1st Reading not held.
Published: 30 June 2010byJohn McSoriley BA LL.B, Barrister,Legislative AnalystP: (04) 817-9626 (Ext. 9626)F: (04) 817-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of the Bill is to introduce " ... substantial reforms to the regulatory regime for the safety and suitability of food". It will eventually fully replace the Food Act 1981 and the Food Hygiene Regulations 1974 and it amends the Animal Products Act 1999 and the Wine Act 2003 " ... to improve the interface of regulatory processes across food sectors" [1]   .

Background

In a media release [2]   Hon Kate Wilkinson, the Minister for Food Safety, stated that the Food Act had not been updated for 30 years and New Zealand's current regulatory system was not as effective and efficient as it could be. She said: "We have recently seen regional inconsistencies in how councils apply the current law, which will be addressed. There also remains a significant incidence of food-borne illness in New Zealand and more can be done to protect consumers" .

The Minister said that the new Food Bill had been developed over the past three years and was aligned with the New Zealand Standard platform, which provides the basis for New Zealand food exports. It included Schedules that set out what risk-based measure would apply to each food sector and would increase the number of sectors required to operate under National Programmes.

The main features of the Bill are:

  • a regulatory framework to enable businesses to take primary responsibility for the sale of safe and suitable food. Food businesses are regulated relative to the degree of risk a food selling activity poses. The risk management tools are:
  • food control plans for high-risk businesses such as restaurants;
  • national programmes for medium to low risk businesses, such as horticulture producers;
  • food handler guidance - educational information for low risk operations, such as fundraising activities;
  • monitoring programmes (set by regulation) to impose measures (in specified circumstances) for determining the safety and suitability of food;
  • specific requirements for imported food - all persons importing food will have a duty to ensure it meets the same standards as domestically produced food, and every consignment of food imported into New Zealand requires a registered importer;
  • the reform of the penalty provisions.

Main Provisions

This Bill is a major piece of law reform and is preceded by a clear and comprehensive explanatory note which explains its provisions in some detail.

Definitions

The Bill contains many detailed definitions including of such terms as: "food", "food business", "processing and handling", "safety and suitability" and "sale". Amongst the more important are the definitions of "food", "food business" and "sale" (Part 1, Subpart 2, Clauses 7-12).

Definition of "food"

The Bill defines, for the purposes of the Bill, the term "food" as "unless the context otherwise requires" anything that is used, capable of being used, or represented as being for use, for human consumption (whether raw, prepared, or partly prepared); and includes:

  • plants;
  • live animals intended for human consumption at the place of purchase;
  • live animals for human consumption that are sold in retail premises;
  • 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 anything that is or is intended to be mixed with or added to any food or drink (however, any such 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 is not required to comply, on its own, with the applicable requirements of this Act that specifically relate to food in its final consumable form);
  • chewing gum, and any ingredient of chewing gum, and anything that is or is intended to be mixed with or added to chewing gum;
  • anything that is declared by the Governor-General, by Order in Council made under Clause 355 (regulations about definitions), to be food for the purposes of the Bill.
  • Food does not include: any tobacco; any cosmetics; 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); any cookware and related products; or any packaging (except edible packaging) (Part 1, Subpart 2, Clause 8).

Definition of "food business"

The Bill defines, unless the context otherwise requires, food business to mean for the purposes of the Bill:

  • a business, activity, or undertaking that trades in food (whether in whole or in part); and
  • includes a business, activity, or undertaking that:
  • transports or stores food; or
  • sells food on the Internet; or
  • 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
  • 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
  • However, excluded from this definition is a business, activity, or undertaking that:
  • 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 (including mobile premises) or services (for example, an Internet service provider or an auction site on the Internet); or
  • trades exclusively in food-related accessories; or
  • lets for hire any equipment (such as marquees, tables, and chairs); or
  • is declared by the Governor-General, by Order in Council made under Clause 355, not to be a food business for the purposes of this Bill (Part 1, Subpart 2, Clause 9).

Definition of "sale"

The term "sale", unless the context otherwise requires, sale, in relation to food means:

  • means selling food for processing and handling or for human consumption and includes-
  • reselling food for processing and handling or for human consumption;
  • 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
  • bartering food;
  • selling, or offering to sell, any thing of which any food forms a part;
  • supplying food, together with any accommodation, service, or entertainment, as part of an inclusive charge;
  • 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;
  • 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;
  • exporting food; and
  • every other method of disposition of food for valuable consideration.

The definition deals with three particular situations as follows:

  • 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.
  • 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.
  • 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 (Part 1, Clause 12).

Risk-based measures

Every person who trades in food must, subject to certain exceptions, operate the person's food business under the risk-based measure that applies to the food sector that the food business is in. The four types of risk-based measures under the Bill are: a food control plan; a national programme; a monitoring programme; and food handler guidance. The Bill classifies food sectors into three risk classes based on, inter alia, 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. The Bill enables the Governor-General, by Order in Council, to amend the classification of food sectors and sets out rules for determining the risk-based measure that applies to a food business that is not classified or a food business carrying out activities that overlap two or more food sectors and assign the appropriate risk-based measures (Part 2, Subpart 1, Clauses 19-26, Schedules 1-3).

Food control plans, national programmes, monitoring programmes, food handler guidance

Food control plans

The Bill provides for the nature, content, and effect of a food control plan and imposes requirements for their registration. Clause 28 provides that a food control plan is a plan to identify, control, manage, and eliminate or minimise hazards or other relevant factors for the purpose of achieving safe and suitable food. Clause 25 provides that 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 person is in as specified in Schedules 1-3 or as determined (Part 2, Subpart 2, clauses 27 to 69).

National programme

Clause 71 provides that 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 . Clause 72 provides that national programmes are imposed by regulations and by specifications set by the chief executive of the Ministry (clause 72). Clause 76 provides that an operator of a food business that is subject to a national programme is required to register the food business in accordance with regulations which may also (under Clause 73) prescribe requirements for the suspension, cancellation, or surrender of the registration of a food business that is subject to a national programme (Part 2, Subpart 3, Clauses 70 to 84).

Monitoring programmes

Clause 86(1) provides that a monitoring programme is used to impose, in certain specified circumstances, monitoring measures and related activities that are necessary, inter alia, for determining the safety and suitability of food and for ensuring the effectiveness of the food safety regime. Under Clause 86(3) a monitoring programme is imposed on any food sector (even though the sector is already subject to other risk-based measures) by way of regulations made under the Bill and, if required, by a notice issued by the chief executive of the Ministry (Part 2, Subpart 4, Clauses 85-90).

Handler guidance

Food handler guidance is guidance issued by a registration authority (the chief executive of the Ministry or a territorial authority) about the steps that are necessary to achieve safe and suitable food. It is intended to be educative only and does not, on its own, impose any duties on a person or food business that is subject to it (Part 2, Subpart 5, Clauses 91-96).

Food imported for purpose of sale

The Bill provides that a person must not import food for the purpose of sale unless the person is a registered importer or is importing the food through an agent who is a registered importer. It also provides that the importation of food in a quantity that is more than that which a reasonable person would consider to be reasonably required for personal consumption must, unless the contrary is proved, be treated as an importation of the food for the purpose of "sale". Clause 100 sets out the powers of food safety officer to give any imported food a clearance for entry into New Zealand in certain circumstances. A food safety officer may give a clearance for entry unconditionally or subject to any conditions that the officer thinks necessary or desirable to achieve the safety and suitability of the food. The Bill provides for a system of registration for importers. For every consignment of food imported into New Zealand, there must be a person resident in New Zealand (resident is defined by Section YD1 or YD2 of the Income Tax Act) who is registered under this Bill (Clause 103).

Under Clauses 113-116, the chief executive of the Ministry may, at any time, suspend all or any specified part of a registered importer’s operations for an initial period of up to three months if the chief executive considers that the food imported by the importer may pose a risk to human life or public health or that there are matters that cast doubt on the safety and suitability of the food. A registered importer may also voluntarily suspend all of the importer's operations for an initial period of at least three months, unless the chief executive approves a shorter period (Part 3, Clauses 97-121).

Territorial authorities

The Bill sets out certain functions and duties of territorial authorities under the Bill and provisions which include:

  • the Minister may issue national outcomes in relation to the performance or exercise by territorial authorities of functions, duties, and powers under the Bill (Clause 148);
  • a territorial authority may, under the Local Government Act 2002, transfer its functions, duties, and powers to another territorial authority or to a regional council if the other territorial authority or regional council agrees in writing to the transfer and is able to meet any national outcomes issued by the Minister (Clauses 149 to 151);
  • a territorial authority may transfer its functions, duties, and powers to the chief executive if the chief executive agrees to the transfer (Clauses 152 to 156) (Part 4, Subpart 2, Clauses 146-169).

Offences

The Bill establishes an infringement offences regime, sets out offences against the Act, prescribes defences and makes provision for procedural matters relating to prosecutions (Part 4, Subpart 5, Clauses 188-242).

Powers and enforcement

In relation to powers and enforcement, the Bill:

  • enables the chief executive of the Ministry to appoint food safety officers and suspend or cancel appointments (Clauses 243 and 244);
  • empowers the chief executive of the Ministry to give directions to protect the safety and suitability of food (Clauses 245 to 256);
  • specifies the powers of the chief executive of the Ministry to publish statements about the safety and suitability of food (Clauses 257 and 258);
  • gives the chief executive of the Ministry power to approve documents, materials, or facilities, or persons or classes of persons, if the approval is required by a requirement of the Act (Clause 259);
  • sets out the powers of the chief executive of the Ministry to gather information (Clauses 260 and 261);
  • sets out the powers of verifiers (Clause 262);
  • provides for the powers and duties of food safety officers (Clauses 263 to 288);
  • imposes controls on the issue and use of search warrants (Clauses 289 to 300);
  • describes the compliance order regime (Clauses 301 to 313) (Part 4, Subpart 6, Clauses 243-313).

Machinery provisions

The Bill provides that the Governor-General, by Order in Council made on the recommendation of the Minister, may make regulations to exempt certain things or certain classes of persons or operations from the application of all or any provisions of the Bill. Clause 316 provides that regulations may be made in the same manner to exempt food that is to be exported to a destination other than Australia from the requirements of adopted joint food standards or domestic food standards and food that is to be exported to any destination from the requirements of any regulations made under Clause 346 ("Regulations about standards in relation to food") or any notices made under Clause 367. Under Clause 318 the chief executive has power to exempt food that is to be exported from the same requirements, by notice under clause 367, to exempt food that is to be exported from the same requirements, and with largely the same effect. The Bill exempts certain persons covered by the Animal Products Act 1999 or the Wine Act 2003 from the requirement to operate under a registered food control plan or a national programme (Clauses 320 and 321) (Part 5, Subpart 1 (Exemptions), Subpart 2 (Immunity, delegation, and review provisions), Subpart 3 (Information and consultation requirements), Subpart 4 (Regulations), Subpart 5 (Food Standards - means of giving effect to NZ's obligations under the Australia-New Zealand Joint Food Standards Agreement to give lawful effect to joint food standards), Subpart 6 (Notices), Subpart 7 (Transitional provisions), Subpart 8 (Miscellaneous), Clauses 314-406).

Copyright: © NZ Parliamentary Library, 2010
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  1. Food Bill, 2010 No 160-1, Explanatory note, General policy statement, p. 1   [back]
  2. Media release, 26 May 2010, Hon Kate Wilkinson, New Food Bill introduced to Parliament, 26 May, 2010.   [back]