City Planning & Environmental Services 2 September 2010 Mr. A Gardner Clerk of the Committee Primary Production Select Committee Parliament House WELLINGTON Dear Sir SUBMISSION TO THE FOOD BILL 1.0 INTRODUCTION 1.1 Hamilton City Council (HCC) welcomes the opportunity to make a submission to the Primary Production Select Committee on the Food Bill 1.2 It should be noted that the comments expressed in this submission are from Hamilton City Council staff, and do not necessarily reflect the views of the Council itself. 1.3 HCC s Environmental Health Team has participated in the Voluntary Implementation Programme since its inception in August 2008. During this time approximately 90 food businesses have implemented the Food Service and Catering Food Control Plan and have been granted an exemption from the Food Hygiene Regulations 1974. Some exemptions are now in their second year. Audits are carried out by the Environmental Health Officers, who are each an NZFSA approved auditor of food safety programmes (NZFSA OTP-FCP Templates). 1.4 HCC s Food Safety Team is an accredited inspection body under the ISO17020 standard. This accreditation was first obtained in 1999 and relates to HCC s activity under the Food Hygiene Regulations 1974. 1.5 HCC staff support the Bill in principle in that it will replace the outdated Food Act 1981 and the Food Hygiene Regulations 1974, with a continued important role for local government in achieving the desired food safety outcomes. 2.0 GENERAL COMMENTS 2.1 Preliminary Provisions Purpose 2.1.1 The purpose of the Bill is supported, particularly the need to achieve safety and suitability of food for sale, using risk-based measures to achieve this, and requiring persons who trade in food to take responsibility for food safety and suitability. Page 1 of 8
2.1.2 The use of risk-based measures in particular is new and is seen to be an efficient and effective way of achieving the desired outcomes, taking into account the varying level of risks presented by the different food sectors. Interpretation 2.1.3 This section is comprehensive and clearly provides for the meaning of many key terms in the Bill, the absence of which could lead to confusion, as with the lack of explanation of key terms in the current Act. 2.1.4 In particular, the comprehensive explanations of the meaning of food, food business, processing and handling, safety and suitability and sale clearly explains these references, which are absent from the current Act - leading to confusion in certain cases. Principles for persons with regulatory roles 2.1.5 The proposed principles for different regulatory agencies to work together is supported. Staff in particular recognise the need from experience for a coordinated and consistent approach and the avoidance of duplicated effort in achieving the desired outcomes. 2.1.6 However, please refer to further comment below (Section 2.7.2 - Directions by Chief Executives) in relation to issuing of directions by the Chief Executive to territorial authorities. Outline of regulatory roles 2.1.7 The roles outlined in Clause 17 are supported. This is because HCC has experience in these roles either historically under the current food safety regime or as part of the Voluntary Implementation Programme. Of course the detail of the roles that are carried out under the current regime would be different but are in the same broad areas, in particular in registration, compliance monitoring and enforcement activities. Primary duty of persons who trade in food 2.1.8 Clause 18 is clear in making a person trading in food responsible that the food is safe and suitable, with the key terms defined in the Bill. 2.2 Risk-Based Measures Classification of food sectors 2.2.1 The classification of food sectors into each of the risk-based measures based on the level of risk they present to public health is supported. Application of risk-based measures 2.2.2 The application of risk-based measures in accordance with Clauses 22 to 24 seems reasonable. The application of the default measure seems appropriate and in terms of Clauses 23 and 24, provides the operator choices as to the riskbased measure to operate under the circumstances given. Requirement to operate under applicable risk-based measure 2.2.3 Clause 25 clearly requires a person to operate under one of the risk-based measures, unless exempted by Clause 26. This is supported. This clause, along with Clause 18, clearly places the onus of responsibility of safety and suitability on a person who trades in food. Page 2 of 8
2.3 Food Control Plans General 2.3.1 The focus of monitoring of food safety and suitability being placed on food control plans, rather than on premises as under the current regime, is supported. 2.3.2 Clauses 28 to 34 provide a high degree of flexibility around the food control plan, being able to apply to more than one operation, use of a template model or development of one s own plan etc, and also providing for the ability for one food business to be subject to more than one plan. Amendments 2.3.3 Clause 39 states that an operator may apply for an amendment to a Food Control Plan, whereas Clause 38(3) states that an operator must amend a Plan and apply for registration of any amendment. The apparent conflict here may create some confusion and needs to be clarified. 2.3.4 In relation to Clause 39(2), the application for registration and the registration process in relation to amendments needs to be consistent with the same for registration of an original Food Control Plan. Registration 2.3.5 Registration of food control plans is supported and would be a welcome change from registration of premises under the current regime. This will place the focus on the Plan and its implementation rather than on the premises. 2.3.6 However, clarification is required in Clause 48 in relation to the registration of Plans that cover more than one food business where the businesses are located in two or more other territorial authority districts. Is separate registration required with each territorial authority, or is one authority nominated to register the one Plan? (perhaps where the company registered office is located). 2.3.7 It is recommended that Clause 49 provide for territorial authorities to request information to facilitate their processing of the application and future monitoring of compliance. 2.3.8 Also, Clause 52 provides criteria for the registration of Plans. It would make the job of the regulatory authority easier if the details in sub-clauses (c) and (d) of Clause 52 are required to be provided on an application form for registration (refer Clause 49) and expand on the requirements for assessment of the Plan for sub clauses (a) and (b). Duties of operators 2.3.9 Clause 45 expands on the responsibilities already covered by Clauses 18 and 25 and clearly explains the duties of the operator. This is supported and would be a point of reference for regulatory agencies like HCC to refer operators to when necessary. 2.3.10 Subsection 2(b) and 3 are appropriate to clearly describe how the duties would apply where a Plan covers more than one food business. 2.3.11 The duty to notify significant changes, which are defined in Clause 46(2), is appropriate to ensure details held by the registration authority are kept up-todate and that the Plan continues to meet the criteria for registration, including any change of ownership. Page 3 of 8
Training of Key Personnel 2.3.12 The training and supervision procedure in version 2 of the Food Service and Catering Food Control Plan states that the day-to-day manager must be familiar with and understand all the procedures in the Food Control Plan. No staff training record or any other form of record is required to demonstrate this understanding. 2.3.13 Staff strongly recommend that key personnel, in particular the operator and /or the day-to-day manager, be required to hold some form of training qualification in the content, implementation and running of the Food Control Plan applicable to their business; in the same way that managers under the Sale of Liquor Act are required to hold the Licence Controller Qualification. 2.3.14 This would facilitate the successful implementation and operation of the Food Control Plan by increasing understanding of the Plan and how it works to ensure safety and suitability. Suspension of operations and removal of registration 2.3.15 The provisions relating to suspension of operations and to cancellation of registration are comprehensive and appropriate. Suspension of operations relate to the operation of the Plan, while cancellation relates to circumstances where operations are out of the scope of the Plan or the Plan is no longer relevant for various reasons. 2.4 National Programmes 2.4.1 The concept of National Programmes for food businesses of low-medium risk is supported. This removes the need for all food businesses to operate under a Food Control Plan and reduces compliance costs for these businesses. 2.4.2 The proposed clauses covering National Programmes reflect those for Food Control Plans, except that the detail of National Programmes, details for registration matters and suspension of operations are the subject of Regulations under Clause 73. This makes it difficult to determine the impact on territorial authorities, particularly where the registration authority may or may not be the territorial authority for any one Programme. 2.5 Monitoring Programmes and Food Handler Guidance 2.5.1 Monitoring programmes provide for more flexibility around food safety and suitability, which is supported. Since they would be imposed by regulation or notice it is not possible to determine the impact on territorial authorities. 2.5.2 The concept of food handler guidance to the low-risk operations is supported and formalises the approach taken by most territorial authorities with these lowrisk operations. For example, sausage sizzles for charitable fund raising etc. Schedule 3 of the Bill clearly extends the application of this to other low risk providers. 2.6 Recognition, Territorial Authorities, Administration and Enforcement Recognised Agencies and Persons 2.6.1 The proposed requirements for agencies and persons to be recognised for verification and specialist functions and activities is supported. This will ensure that these functions and activities are carried out by competent and well managed agencies and persons. This is a significant improvement on the current situation where there is little or no management of competency and capability Page 4 of 8
in the food regulatory area, at least before the introduction of the Voluntary Implementation Programme. 2.6.2 However, this part of the Bill provides for third party verifiers. It is accepted that third party verifiers have a place with the more complex food operations, for example those involving specialist manufacturing techniques. However, it is considered that territorial authorities should continue with their current exclusive role with the food retailing sectors. The reasons for this are: Over time, territorial authorities have developed important relationships with these sectors. Significant cost savings can be continued with territorial authorities, who have the ability to fund some of the role out of rates (public good service provision) and can achieve significant cost efficiencies as part of their broader regulatory role. Environmental Health Officers can provide advice to operators on non-food related matters (such as trade waste requirements and Building Act matters) while on the premises. Operators would be involved with just one agency for both registration and verification matters, which would make it easier for them and avoid confusion of roles. Territorial authorities could be left with the more difficult and costly work after third party verifiers have taken the easier and more profitable work. 2.6.3 Clause 137 may require a recognised agency or person to pay a prescribed fee for recognition. The purpose of this fee is not known, given that an application fee for recognition would already be required under Clause 130. Furthermore, there may be more costs associated with complying with any requirements of regulations made under Clause 351. Territorial Authorities 2.6.4 The functions and duties of territorial authorities proposed in Clauses 146 and 147 are generally supported. Many of these functions and duties are, or should be, carried out by territorial authorities now. However, some of the proposed sub-clauses lead to some uncertainty about the type and extent of some roles, as in Clause 146 (e) and (h), where the proposed functions are as directed by the Chief Executive. Clause 146(l) and Clause 147(i) also provide some uncertainty as they are open to interpretation and are not specific. 2.6.5 The monitoring of performance of territorial authorities, as proposed in Clause 157, is supported. Any form of performance monitoring and review by central government of territorial authorities in their current role under the Food Act and Food Hygiene Regulations has been absent for many years now, which in part is responsible for the advent of the Domestic Food Review and the introduction of Food Control Plans. 2.6.6 The many clauses in the Bill that open the way to increase or decrease the functions and duties of territorial authorities make it difficult to assess the longterm impact of the Bill on territorial authorities in terms of overall responsibilities and positioning in preparation for the Bill. Page 5 of 8
Cost recovery 2.6.7 The continued ability of territorial authorities to set reasonable fees prescribed by resolution, as provided by Clause 176 for the purposes stated in Clause 176(2), is supported. The proposed requirement to have regard to the cost recovery principles in Clause 170 is reasonable and also supported. Infringement offences 2.6.8 The concept of infringement offences for minor offences as an alternative to proceedings is supported. This regime provides a quick and effective way of imposing a penalty for an offence of a minor nature. Many minor infringements are detected during inspections of food premises under the Food Hygiene Regulations. Nearly all of these are not taken further because the cost of prosecution does not warrant the food safety outcome. An infringement offence regime would be very effective under the current regulatory regime. 2.7 Powers and Enforcement Appointment of food safety officers 2.7.1 Clause 243 provides for only the Chief Executive to appoint food safety officers. There is no ability provided for territorial authorities to appoint their own food safety officers. This is considered necessary to enable the territorial authority to fulfil its functions and roles under the Bill. Being appointed for a job by one agency yet being employed by another with its own functions and roles is not considered appropriate and has the potential to create conflict from an employment relations point of view. Directions by Chief Executive 2.7.2 The proposed ability of the Chief Executive to issue directions to territorial authorities about how to perform its functions or duties or to exercise its powers under the Bill is not supported. It is considered that this is contrary to the partnership approach between the Ministry, the Chief Executive and territorial authorities advocated in Clause 13. 2.7.3 The ability to issue directions to territorial authorities is not conducive to a partnership arrangement, particularly as it does not appear that there is any consultation requirement before a direction is issued. Powers of verifiers 2.7.4 The powers and responsibilities proposed in Clause 262 are reasonable and supported. 2.7.5 It is recommended that the Bill itself or regulations should cover the reporting of verifications to the regulatory authority and the immediate notification of any critical defects found during verifications where these are carried out by third party verifiers. Also, any cases where corrective actions have not been completed within reasonable timeframes should be reported. Powers and duties of food safety officers 2.7.6 Clauses 263 to 288, covering the powers proposed for food safety officers, is comprehensive and well documented. They include and add to the current powers available under the Food Act. 2.7.7 They include the ability to interrupt operations, seize and condemn and to restrict use of or close a place. There is no provision to issue improvement notices or rectification orders in order to remedy non-compliance. Compliance orders are provided for in Clauses 301 to 313. However, they involve Page 6 of 8
application to a District Court and are apparently not meant for the less substantive issues. 2.7.8 Improvement notices or rectification orders could be used by food safety officers to require corrective actions to obtain compliance with the Act and regulations. They could be used to provide a warning before issuing an infringement notice or commencing proceedings. Non-compliance with the improvement notice or the rectification order itself could be an offence. Compliance Orders 2.7.9 Compliance orders need to be applied for with the District Court. This appears to indicate that such orders should be sought for major issues that occur infrequently. 2.7.10 Staff recommend that a form of compliance order (or improvement notice or rectification order) be provided as that allows the regulatory authority to require compliance with the Act without having to resort always to infringement notices or to court issued compliance orders. This would provide a formal mechanism to require an operator to comply with corrective actions issued in an audit report for example, where they have failed to do this within agreed timeframes. Noncompliance with the issued order/notice could be made an infringement offence in its own right. 2.8 Miscellaneous Provisions Regulations 2.8.1 It is accepted that territorial authorities performing regulatory functions should meet certain standards of competency, process/systems and operation. The difficulty in specifying these matters later by regulation is that it is not possible to assess the implications and costs of meeting these standards, and therefore to assess the ability for territorial authorities to undertake the role of recognised agencies. It is therefore critical that these regulations are developed with them. Transitional provisions 2.8.2 It is considered that the phasing of high-risk businesses should be phased over a longer period. The move to have a template Food Control Plan for the retail food sector is significant and the Voluntary Implementation Programme has demonstrated that operators require a lot of assistance to come on board with the new approach. A longer time period would ease the workload for territorial authorities and perhaps allow them to manage the transition time with current resources. 2.8.3 As territorial authorities are to be treated as recognised agencies under Clause 127 without application, it is considered appropriate that they be deemed recognised agencies in the transition - without having to go through the application process. 2.9 Conclusion 2.9.1 Overall, HCC staff support the Food Bill and most of its contents. The Bill fills many gaps in the current regime. In particular, the following are supported: The clear description of key terms and phrases used in the Bill. The clear description of the functions and duties of territorial authorities. The responsibility of safe and suitable food being clearly placed on food operators. The introduction of flexible risk-based measures. Page 7 of 8
Recognition of agencies and persons for verification and specialist functions. Cost recovery provisions. The introduction of infringement offences. The comprehensive powers of food safety officers. 2.9.2 It is considered that some form of training requirement should be introduced for operators and day-to-day managers of at least the Food Control Plans, in the same way that managers under the sale of Liquor Act require a formal qualification. 2.9.3 Clarification is required in Clause 48 in relation to the registration of Food Control Plans that cover more than one food business where the businesses are located in two or more other territorial authority districts. What has been questioned in summary is: The loss of exclusivity in the verification role with the food retailing sector for territorial authorities. The payment of a prescribed fee for recognition. The open ended nature of some sub-clauses in Clauses 146 and 147 may provide uncertainty. The inability of territorial authorities to appoint their own food safety officers. The ability of the Chief Executive to issue directions to territorial authorities. 2.9.4 It is recommended that a form or rectification order or improvement notice be provided for in the Act that allows regulatory authorities to require compliance with matters like corrective actions in audit reports. 2.9.5 The use of regulations and notices to prescribe further or to remove functions makes it difficult to completely assess the likely impact of the Bill on territorial authority operations once it is up and running. 2.9.6 The phasing of high-risk food businesses into their risk-based measure (likely a Food Control Plan) should be allowed to take place over a longer timeframe than one or two years to enable territorial authorities to manage the workload better. If you require clarification of the above points, or additional information, please contact Peter McGregor, Hamilton City Council s Environmental Health Manager (phone 07 838 6699, or email peter.mcgregor@hcc.govt.nz). Yours faithfully Brian Croad General Manager City Planning & Environmental Services Page 8 of 8