The residential aged care sector has long maintained that providers should be exempt from the obligations set out in the new Food Act; however the Ministry for Primary Industries says the sector must comply with the new legislation.

Discussions around the new Food Act have been taking place for over a decade, but finally the new legislation is set to come into force. The Food Act 2014 will become operational by 1 March 2016, replacing the Food Act 1981. It will apply to new food businesses and suppliers who begin trading from that date. Existing businesses will come under the new law over a three-year period from this date; the Food Hygiene Regulations 1974 will then be revoked. But what about aged care providers, who occupy a grey area (no pun intended) in the field of food regulations?

Aged care sector’s request for exemption

From the outset, aged care providers have been against any change to the current regime. The New Zealand Aged Care Association (NZACA) has long argued that the aged residential care sector should be exempted from any additional regulations around food as the sector is currently regulated through the Health and Disability Act. It also argued that over the last 10 years of operating under that Act there has been no evidence of a problem with foodborne illnesses in aged residential care. It requested that there should be a clause in the new Food Act which excludes the aged care sector from the new regime.

The Ministry for Primary Industries (MPI) investigated the sector to gain a better understanding of how it operates and if such an exemption might be plausible.

The NZACA’s submission to Parliament’s Primary Production Select Committee on the Food Bill in 2013 requested that “given the existing regulatory structure for our sector, it would be preferable to be able to achieve any improvements to food safety management within the existing structure and systems”.

The submission stated that while NZACA supports the objectives of the Food Bill it believes it is appropriate for the aged care sector to be exempt from any obligations under the Food Bill.

Ministry’s response

However, in 2013 Parliament made the decision that businesses in the aged care sector will not be exempt and will need to meet certain requirements under the Act.

A spokesperson for MPI told INsite that while the sector is currently regulated by the Health and Disability Services (Safety) Act 2001, this legislation “is not primarily focused on food safety and does not set out detailed expectations to ensure the safety of consumers, for example, keeping records of where food is being sourced from to be able to recall the food if there is a food safety incident”.

Under the new Food Act, aged care providers will be required to register with MPI and be checked (verified) on a regular basis.

Earlier this year, MPI consulted with all affected stakeholders, including the aged care sector, on the regulations under the Food Act.

“MPI recognises that the new Act will have an impact on some aged care providers and we will work with the sector and other government regulators on how impacts and costs can be minimised, such as removing unnecessary regulatory duplication and reducing compliance costs.

“At the same time, we cannot take short cuts on our food safety system because it provides for the safety of the elderly population, who are vulnerable to food safety risks, and supports New Zealand’s world-leading reputation as a producer of safe food.”

The NZACA says it is happy to work with MPI to minimise the impact on the sector. However, chief executive Simon Wallace says that the association maintains its position, as stated in its 2013 submission, that the sector is already meeting stringent food safety requirements, as set by various health regulations.

“While we accept the overall objectives of the Food Act and agree it is important that food is safe for consumers, we think the new rules contained in the Food Act are potentially onerous and will place an extra burden on providers who are already doing a good job to ensure the safe preparation of food,” he says.

How is the new Food Act different?

Despite the NZACA’s concerns, one of the main selling points of the new Food Act is that it recognises that each business is different; it is said to mark a departure from the old Act’s one-size-fits-all approach to food safety.

The central feature of the new Act is a sliding scale where businesses that are a higher risk from a food safety point of view will operate under more stringent food safety requirements and checks than lower-risk food businesses. Higher-risk food businesses – for example, those that prepare and sell meals or sell raw meat or seafood – will operate under a written food control plan (FCP). In the plan, businesses identify food safety risks and steps they need to take to manage these risks. The FCP can be based on a template or business owners can develop their own plan to suit their individual business.

Businesses that produce or sell low to medium-risk foods – like non-alcoholic beverages, for example – will come under national programmes. There are three levels of national programmes, based on the level of food safety risk. National Programme Level 3 applies to food sectors with the highest level of food safety risks and National Programme Level 1 the lowest. National programme requirements will be set out in regulations, with requirements increasing between levels. Regulations are being developed and proposals will be publically consulted on before being finalised.

Businesses under national programmes won’t have to register a written plan, but will have to make sure they are following the requirements for producing safe food that will be set out in regulations. This includes having to register their business details, keep minimal records and have periodic checks.

The new Act provides a clear exemption to allow Kiwi traditions like fundraising sausage sizzles or home baking at school fairs to take place. The only rule will be that food that is sold must be safe.

Growing food for personal use, sharing it with others or ‘bring a plate’ to a club committee meeting, or providing lunch for a visiting sports team or social group, is outside the scope of the Food Act. The Act only covers food that is sold or traded.

What happens now?

MPI is developing a package of materials to implement the Food Act and to support the regulations, including food control plan development manuals and templates, guidance for businesses operating under national programmes and guidance for food sectors that are exempt from having to operate under a national programme or food control plan. There will be extensive consultation during the development time, giving people the opportunity to have their say on the detail of the new food safety system.

When the new Act comes fully into force, food businesses will transition in groups into the new rules over a staggered three-year period. Generally, businesses in higher-risk food sectors will transition first. At the end of the three-year period, all food businesses will be operating under the new Act.

Although aged care providers must comply with the new Food Act, MPI has promised to work with the sector to help minimise compliance costs by taking steps to remove unnecessary regulatory duplication.

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