The Food Bill deconstructed

I've been hearing about this Food Bill for months now. Facebook sources tell me the Government is going to fine us for growing carrots and lock us up for giving away our excess marrows. Hell, I've got so many oversized zucchini's that I don't know what I'd do if it was illegal to give them to my friends. I decided I'd better take a look for myself.

What a stupid idea THAT was. The select committee report, including the bill as amended, ran to 378 pages of meticulously crafted tedium. Only another late night reader of legislative material can comprehend the depths of stupification of which I write. By the time I got to the end I felt as braindead as Paul Holmes on Waitangi morning.

What comes next is not legal advice – or easy reading. This is just a general explanation of what I think the bill means. I need to read the bill a few more times to get the full picture but frankly that thought makes a round with Sonny Bill Williams look appealing. If you are responsible for a food business you need to get some detailed advice about your specific situation. In addition the bill is coming up for its second reading and there will be amendments made during the Committee of the House stage after that, so it is likely to change a bit. Nevertheless it is worth being aware of some of what it does do, while getting some reassurance about what it doesn't.

Firstly, the bill will not affect people who grow or process food for themselves and their family or keep seed. The bill does affect people who sell or trade food, including barter, but how much depends of the scale and type of the operation. Keep in mind that barter is not the same as reciprocal gift giving of excess harvest. Barter is a commercial transaction (maintaining value) while gift giving is a social transaction (maintaining relationships). The bill does not mention gift giving at all but I'd argue it does not apply to it.

At the lowest end of the scale, some people who trade food will have no new obligations under the bill. They will be subject to “food handler guidelines” but these will be educative only. This will be for things like clubs providing food to members secondary to an activity, school fairs, growers that sell at the farm gate or at farmers markets, very small scale or home-based production, people who sell things like chippies only, childcare providers where food handling is no more than, say, cutting up apples. This is not a complete list and schedule 3 of the bill sets it out in more detail.

The next level is where people have to go on a public register and will have to comply with a National Programme. These will be designed to identify and deal with potential health risks from food production. NB This will almost certainly not deal with things like pesticide residues or GMOs, but will be aimed at hygiene and gross contamination etc. They will also specify what paperwork businesses need to do to reassure the Ministry that they are complying. National Programmes with be at three levels of hassle, depending on type of business.

Level 1, the easiest, will cover honey, wholesale horticultural growers and pack houses, sugar refineries, people who sell hot drinks and prepackaged foods only, ice cream and ice block makers and food transportation companies.

Level 2 will include bakeries that only make bread, residential child care, lolly makers, dehydrated fruits, crisps and popcorn, jam, pickles and preserves, water and ice, frozen food (not ice cream), cereals and biscuits.

Level 3 businesses include those that make things like alcohol and non-alcohol drinks, edible oils and margerines, food additives (incl. vitamins and minerals), flours and grains and things like dairies with pick 'n' mix lollies and garages that heat up pies. Again, a full list of what is covered in set out in schedule 2 of the bill.

The heaviest regulation comes for businesses that have to register a Food Control Plan. This includes the food retail sector (bakeries, dairies that make filled rolls, fish mongers and butchers), food service sector (on premises, home or commercial delivery, take away and mobile) and manufacturers of everything from dairy products, herbs, dips and nuts to commercially sterilised food, dry powders and vegetable proteins. The full list is set out in schedule 1 of the bill.

A Food Control Plan must begin with a detailed description of the business including the type of food it deals with and the nature of the business. It must identify all the hazards and risks and set out how the business will deal with them. It must also set out who is responsible for the plan and verification procedures.
The plan can be developed by an individual business or adapted from someone else's. It can also be based on a template that the Ministry may develop for different classes of business. The plan must be registered and approved - in practise by the local authority under powers delegated by the Ministry. There are a range of procedures for amending, approving and appealing.

The bill also has special clauses for winemakers and requires importers to be registered on a public register and comply with certain requirements.

If a lot of this looks like incredibly bureaucratic paper-shuffling, that's because it is. Making dairies write a Food Control Plan with all the on-going verification and paperwork that goes with it because they make filled rolls is kind of bizarre. What's more, if the dairy gets sold the new owner has to register a new Food Control Plan. I seriously doubt that filled rolls and samosa from the local Four Square present enough of a health risk to New Zealanders to warrant this kind of bureaucratic overkill.

In fact I don't know any significant problems with the way the system operates now that deserves this level of intervention. The current Food Act from 1981 probably does need updating but this is something far more ambitious than that. It's Ministry empire building.

The National led Government is slashing jobs from the public sector and looking at how it can further tighten the screws on the poorest and most marginalised people in our community. At the same time it is introducing legislation that will massively increase enforcement officers to ensure that – wait for it – the local chip shop is up to date with their verification paperwork.

Most of the bill is not actually about how to improve food safety. Its about how to make sure that the New Zealand food industry obediently fills out all the necessary forms, and charge them for the privilege. Make no mistake, the bill very carefully empowers the charging of fees and levies, spending 12 pages on the subject.
The bill contains provisions for the appointment and registration of 'recognised agencies and persons', 'verification agencies and persons' and 'food safety officers'. With almost every food business in the country having to register and comply with either a National Programme or a Food Control Plan, expect there to be plenty of them.

The powers of food safety officers in particular are concerning. They have the power to enter (using force if necessary) a wide range of premises with or without a warrant. The power to enter without a warrant is so unconstrained that it is hard to see why they would ever bother to apply to get one, although its such a simple process that they can do it on the phone if they leave it to the last minute. If they do search without a warrant they have to give the owner reasonable notice, unless that would interfere with the investigation. They don't even have to produce the warrant and identify themselves if “compliance would prejudice the successful execution of the warrant.” for example if they forgot to bring them.

The Food Bill isn't as bad as some of the wilder claims being made about it, but does make you wonder what on earth they were thinking. A more conspiratorial soul might comment that it lies at the intersection where bureaucratic and global food corporation's interests meet. Big businesses won't be phased by it – it probably won't be that different from what they do now, but it will be a major compliance obstacle for small and medium sized businesses. New businesses in particular need to spend time on making money to pay the bills rather than filling out redundant plans and forms. Either way this bill will be bad for the majority of food businesses and bad for consumers. The Minister needs to challenge her Ministry on it and start again.

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