At more than 30 years old the current Food Act 1981 is outdated. The kind of food that is available, the way we buy it, how it’s produced and how it’s sold has all changed significantly since 1981.
A new Food Bill is before Parliament to establish a flexible, risk-based food safety system that can meet the needs of consumers as well the diversity of businesses operating in the food industry, from coffee carts and catering companies to restaurants and large industrial food manufacturers.
New Zealand’s food legislation applies to all food for sale in New Zealand and food that is exported.
What are the changes to the Food Bill?
Since the Bill had its first reading, a number of concerns regarding its scope and wording have been raised by the public. Government has considered this feedback and a Supplementary Order Paper (SOP) is being developed to clarify and simplify the Bill where possible. The clarifications and changes are outlined below.
- Recognition of industry programmes: The Bill will include a principle that where industry programmes contain equivalent requirements to the Bill there should be no duplication of those requirements on those businesses.
- Making use of Food Handler Guidance voluntary: The SOP will clarify that low-risk and very small-scale activities are simply subject to the existing basic obligation of providing safe and suitable food. While Food Handler Guidance will be available to these enterprises, it will not be mandatory. The Food Handler Guidance will be removed from legislation.
- Impact of the Bill on fundraising activities: The SOP will clarify that traditional fundraising and ‘Kiwiana’ activities such as sausage sizzles and school fairs are not regulated other than the requirement to ensure food is safe and suitable.
- Gifting and donating of food: The SOP will clarify that non-commercial exchanges of food between family and friends can take place, and that food can be provided as part of farm workers’ accommodation package (such as Willing Workers on Organic Farms or WOOFers). A ‘good Samaritan’ clause will be added in to protect businesses that donate their food in good faith.
- Seeds for sowing: As it was only ever the intention that the Food Bill would apply to seeds sold for eating, wording will be changed to explicitly exclude seeds for propagation from the scope of the Bill. This will ensure that under the Food Bill people can continue to trade and sell seeds for propagation freely.
- Ensuring Food Bill is in line with other legislation: The Bill will be updated to reflect recent legislative development, including the Search and Surveillance Act 2012 and the Legislation Act 2012.
- Keeping down fees and charges: The Billwill include a new clause that will allow for regulations to ensure local councils only charge fees that are reasonable and necessary.
- Clarifying the standard making powers in relation to GM foods: A reference to GM foods will be reinstated in the Bill to make it clear that the Government has the ability to make New Zealand-only standards relating to GM food in the exceptional circumstances set out in the Food Treaty with Australia. The Food Bill supports the existing robust scientific pre-approval process required prior to GM foods being allowed for sale.
What does this mean from a food safety perspective?
New Zealand has a widely recognised, high-quality food safety system. Changes to the Food Bill improve on the current legislation in three ways: Improving knowledge and food handling practices; improving monitoring and data collection; and improving enforcement.
Improving knowledge and food handling practices
The Food Bill improves considerably on the current food legislation because it makes good food handling practices mandatory for most high-and-medium risk foods through food control plans and national programmes. These plans and programmes identify risks in the food handling chain and set out measures to address those risks.
Verifiers will check the performance of food operators against food control plans and national programmes – this improves on the current situation where food inspectors assess premises (rather than practices) against the Food Hygiene Regulations.
Low-risk operators and those who are exempted from operating under risk-based tools will have access to guidance material that will help them control risks. They may also choose to voluntarily operate under national programmes, food control plans or other food safety programmes, possibly in response to market expectations and consumer demand.
Improving monitoring and data collection
The Food Bill will improve the Ministry for Primary Industries’ (MPI) monitoring of high-and-medium-risk food operations because it introduces a central register of businesses operating under food control plans and national programmes.
The Bill will also enable proactive risk-based checking of food safety practices as opposed to the regime under the Food Hygiene Regulations, which involves inspection of premises. Currently, the environmental health officers employed by territorial authorities do not have the mandate to check food safety practices as these are not covered by the Food Hygiene Regulations.
In addition to regulatory changes, MPI is also investing in improved monitoring and data collection.
The Bill will considerably strengthen the Government’s enforcement powers by:
- introducing infringement offences, giving officers a new enforcement option that sits between warnings and costly court action;
- creating a power to inspect and search food businesses operating from private dwellings;
- mandating the food safety practices set out in food control plans and national programmes, so that food operators can be held to account where they are failing to manage risk adequately;
- significantly increasing penalties for individuals and corporates;
- making numerous changes to offences, penalties, remedies and procedures that will clarify and tighten the regulatory regime; and
- clarifying that food manufactured for export is covered by the legislation – this is unclear under the current regime.
How will consumers benefit from the Food Bill?
The Food Bill will give consumers confidence that the rules governing the safety of the food they buy are consistent and focused on the right areas.
More than half of New Zealand’s councils have developed their own bylaws to address gaps in the current Food Act 1981. This means food safety rules aren’t applied or enforced consistently across the country.
By introducing a set of rules that all food producers would have to follow – regardless of where in the country they are – the new Bill would largely remove the need for local food-related bylaws. Consumers will know that the same high standard of food safety will be consistently applied throughout the country.
The Bill’s risk-based approach focuses greatest scrutiny where it will do the most good. It places the strictest food safety requirements on businesses that produce the highest risk foods, and less on businesses that produce low risk foods.
Consumers will also benefit from a better system to ensure businesses comply with food safety requirements. Minor and technical offences will be dealt with faster and more effectively and penalties for the worst offences will be strengthened.
How will food businesses benefit from the Food Bill?
The Bill is intended to make it easier and – in most cases – less costly to run a food business. It takes a flexible, risk-based approach to the production of safe food. It recognises that each business is different and gives food businesses the tools they need to manage food safety in the most effective way for them.
The central feature of the Bill is a sliding scale where businesses that are higher risk from a food safety perspective will operate under more food safety requirements and checks than lower risk businesses.
Individual operators will determine their own compliance costs as the frequency of independent checks will be based on their performance. In other words, those businesses that achieve high standards of food safety will be rewarded with less frequent checks. The reverse also applies – businesses not managing food safety well will receive extra attention and pay for extra checks.
What still has to happen before the Food Bill could be passed?
There are several steps in the process before the Bill can become law. The first step is for the legislation to go back to the Primary Production Select Committee for consideration. This may include further public consultation before the Bill could go through a second reading, the committee of the whole house, and the third reading.
When the Bill becomes law it will be 18 months before it comes into force. During this time regulations will be developed. There will be extensive consultation giving people the opportunity to have their say on the detail of the new food system. After it comes into force, food businesses will have a transition period of three years to become compliant with the new rules.
Who enforces New Zealand’s food laws?
Food Safety Officers (FSOs), employed by the Ministry for Primary Industries, and Environmental Health Officers (EHOs) employed by local councils, are the frontline of New Zealand’s food safety system. They help businesses ensure they sell and serve safe and suitable food, and investigate any situation where food safety may have been compromised.
Under the Food Bill, FSOs and EHOs will be given much more effective tools for protecting consumers from unsafe food, unethical food operators and misleading or inaccurate labelling. Because the Bill will introduce infringement offences, FSOs will have the power to quickly and effectively deal with minor offences (such as technical labelling offences) instead of having to take costly and time-consuming court action as is currently the case.
The Food Bill will also considerably strengthen the penalties that can be given for the worst offences that put people’s health at risk or undermine New Zealand’s export reputation, making them among the toughest sanctions in the developed world.
What search powers will Food Safety Officers have?
Food that hasn’t been manufactured or handled correctly can carry harmful – and sometimes even deadly – contaminants. FSOs need the power to enter premises and carry out inspections and searches in a timely fashion.
FSOs will not be armed under any circumstances.
The powers given to FSOs under the Food Bill are – in essence – the same as those in the current Food Act 1981 and they have been in use for 30 years without problems. Similar powers are provided to animal welfare officers, biosecurity officers and others.
There is a change introduced by the Food Bill to the search powers of FSOs to extend their power to investigate and enforce food safety requirements in home-based businesses, just like they can in commercial premises. These will be narrowly-defined powers to enter and search only those parts of people’s houses that are used for preparing or storing food for commercial sale.
This is to reflect the fact that under the Bill, more New Zealanders will be able to set up and operate food businesses from their homes.
The Bill makes it clear that FSOs and EHOs must act in good faith and with reasonable cause. If they fail to do so they can be prosecuted or sued.
How will food businesses be regulated?
Food businesses that produce higher-risk goods or who prepare meals, will operate under a written Food Control Plan (FCP), which is registered and checked annually to make sure it is being followed. These businesses will be able to tailor their FCP to make it the most appropriate for their circumstances.
Businesses that produce or sell medium- to low-risk foods will come under National Programmes. There are three levels of National Programmes, which are based on risk. They won’t require a written Plan, but will cover the systems a food business needs to have in place to produce safe food.
Are Kiwiana fundraising activities covered by the Bill?
The changes to the Bill will clarify that traditional fundraising and ‘Kiwiana’ activities such as sausage sizzles and school fairs are not regulated other than the requirement to ensure food is safe and suitable.
This is in contrast to the current Food Act, which takes a rigid one-size-fits-all approach to food safety so that, with limited exceptions, all food for sale must be prepared in a commercial kitchen.
Various local councils have had to develop their own ad-hoc by-laws to fill gaps and get around certain impractical or unenforceable requirements of the Act. This is the only reason activities like cake stalls, sausage sizzles and food galas still operate in New Zealand.
To read the paper seeking Cabinet’s approval to progress the Food Bill, here: