The Ministry for Primary Industries has launched a public consultation on its proposal for new food safety regulations under the Food Act 2014.1 The proposed regulations would modify food businesses’ registration and verification obligations, and revise the essential elements of their food safety management systems. They would also increase the amount of money the Government charges for providing food safety and biosecurity services; establish new obligations for food importers; and confirm how existing food businesses will transition to the new regime, amongst other things.
This article: reviews the Food Act 2014’s key elements; summarises and critiques the Ministry’s proposal; identifies the next steps in the decision-making process; and explains how businesses can best seek to influence decision-makers in the months ahead.
Food Act 2014
The Food Act 2014 (Act) represents a fundamental (and long overdue) shift away from the rigid, one-size-fits-all approach to food safety prescribed by the Food Act 1981. The central feature of the new regime is a sliding scale whereby food businesses that pose higher risks from a food safety perspective will be subject to more stringent food safety requirements and checks than lower risk businesses.
Higher risk businesses (such as manufacturers of baby foods, dairy products, meats and ready to eat meals) will need to operate under a written, registered and regularly verified Food Control Plan (FCP).2 FCPs identify businesses’ potential food safety risks and the steps that will be taken to manage them. They must clearly delineate site boundaries so it is clear what risks are borne by whom.3 Businesses can develop their own FCPs4 or use an industry or Ministry for Primary Industries’ (MPI) template.5 FCPs should be drafted with care as (like contracts) they detail legally binding commitments. Businesses with overly prescriptive FCPs will expose themselves to unnecessary regulatory risk.
Businesses that produce or sell low to medium risk foods (such as non-alcoholic beverages, confectionery, fruits or vegetables) will need to operate under one of three levels of National Programme (NP) and follow the requirements for producing safe food that will be specified in the regulations.6 However, they will not be required to register a fully-documented risk management plan.
Certain parts of the Act are already in force, such as the new rules for managing food safety incidents and recalls.7 By 1 March 2016, when the entire Act will be in force, it will apply to around 85,000 food premises, growers and food importers, and up to 200,000 sellers of food.8 Businesses that want to transition to the new rules can do so now in accordance with MPI’s Voluntary Implementation Programme.9
Whist the Act establishes the bones of New Zealand's new food safety regime, regulations are necessary to amplify certain aspects of the Act and create the detailed systems and processes required to support the new regime at a practical level.
MPI’s proposed regulations would clarify a number of pressing questions, such as:10
- Registration – Who food businesses must register with; what information is required; and how long registrations will be valid for. The proposed regulations would generally require a business operating under a NP to renew its registration annually with its local territorial authority.11 The proposal also suggests publishing a notice specifying the circumstances in which an FCP amendment is a “significant amendment” warranting prior evaluation and approval. At a recent public meeting, a number of stakeholders suggested that the proposed specifications were too broad and would be problematic for business.
- Verification – How frequently food businesses must be independently verified to ensure regulatory compliance; what the verification process will entail; and how verification organisations must be qualified and recognised. The proposed regulations would take a risk-based and performance-based approach to verification. That is, lower risk businesses and those with good compliance records would be subject to less frequent and less intense checks. In addition, the proposed regulations would require verification agencies to have a prescribed range of technical competencies and management systems in place.12 For the first time, they would also prevent the same person from performing a company’s FCP evaluation and subsequent verification, as MPI sees that as a conflict of interest. MPI is aware that there may be a shortage of evaluators under the new regime (at least in the early stages), and is considering ways to ensure there is enough capacity.
- Food safety and suitability – What the essential elements of a food safety management system are. The proposed regulations would establish minimum standards for: production facilities and equipment; supporting systems; staff; ingredients and other inputs; production techniques; finished products; documentation systems; sampling and testing; and corrective action. The outgoing regime is particularly prescriptive in these areas, whilst the proposed regulations would be largely outcomes-based. It is clear from MPI’s proposal that officials are keen to understand whether the proposed regulations would provide industry with sufficient guidance.
- Cost recovery – How MPI will recover costs incurred providing food safety and biosecurity services that are not funded by the Crown. The proposed regulations would update (and generally increase) over 250 fees, levies and charges. The updates reflect changes to costs, new services or expanded services since the last reviews in 2008 and 2010. They also reflect MPI’s desire to quickly recoup historic debts from certain sectors.13 MPI aims to increase the amount recovered from industry by $12.8 million to $98.5 million in 2015/16. The proposal has prompted mixed reactions from industry. Some are comfortable paying increased fees, but are keen to improve MPI’s service delivery first. Others are strongly opposed to paying the increased fees, which they consider have been adjusted inequitably. Those with fundamental objections are advised to focus jointly on this public consultation and MPI’s upcoming First Principles Review. The latter may in fact present a more realistic opportunity for securing fundamental changes to MPI’s fees, levies and charges regime.
- Residues – How MPI will determine residue levels from agricultural compounds in food; and how it will determine when the sale of food containing such residues should be prohibited.
- Importers – What obligations will be imposed on food importers. The proposed regulations would introduce new registration, record keeping, storage, transportation, clearance and traceability requirements for importers. Whilst there are a handful of notable exceptions, the proposed regulations generally require importers to be able to demonstrate the safety and suitability of their food products, when required, rather than specifying particular pieces of information that must be collated and retained. Stricter requirements would apply to importers of high risk foods.
- Infringement offences – Which breaches of the Act should constitute infringement offences, warranting more than a warning but less than the full sanction of criminal law. The proposed regulations would introduce a wider range of enforcement options, which would give MPI significantly more flexibility in its enforcement response. Food businesses that are generally compliant and quick to address their errors are likely to be treated leniently. Whereas those that exploit regulatory loopholes are likely to face the full force of the law. Industry's reaction to this aspect of the proposal has been largely positive. Although some have expressed concern about the inconsistent manner in which MPI and territorial authorities enforce food safety rules and the fact that the proposals do not address this issue.
- Transitional arrangements – How and when existing food businesses will make the transition from the Food Act 1981 to the new Act. The proposed regulations arrange for a staggered transition that should prevent any short-term, concentrated strains on MPI’s resources. In general, higher risk businesses will transition in the “first wave”, with lower risk businesses coming later. However, companies with current Food Safety Programmes under the outgoing Food Act 1981 may transition later should they wish.
In sum, MPI's proposal provides food industry participants with a snapshot of the standards to which they are likely to be held in future and the manner in which they will need to demonstrate their compliance. Significant changes are afoot for some. Food businesses are advised to review the proposal and ensure their concerns are communicated to MPI during the public consultation. If nothing else, the proposal should prompt food businesses to focus on determining precisely how and when they will make the transition to the incoming rules.
Next steps in the decision-making process
Between 3 and 18 February 2016, MPI will run 12 public consultation meetings across the country at which it will explain the proposal and answer attendees’ questions.14 MPI has asked interested parties to file comments on the proposal via its electronic Submission Form.14 The deadlines for submissions are:
- 5pm on 20 February 2015 for comments on MPI’s cost recovery proposal (section 7 of the public consultation document); and
- 5pm on 31 March 2015 for all other proposals.
After the consultation, MPI will assess all the submissions, follow-up with interested parties as appropriate and make any necessary changes to the proposal. Once Cabinet approves MPI’s proposed policy direction, MPI will finish drafting the regulations. MPI will carry out further consultation on discrete aspects of those regulations in mid- to late-2015. The regulations will come into effect by 1 March 2016.
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This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.