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The scope of ‘agricultural compound’

July 2009

What is the definition in the ACVM Act?

Section 2 of the Agricultural Compounds and Veterinary Medicines (ACVM) Act 1997 defines an ‘agricultural compound’ as:

“any substance, mixture of substances, or biological compound, used or intended for use in the direct management of plants and animals, or to be applied to the land, place, or water on or in which the plants and animals are managed, for the purposes of—

• managing or eradicating pests, including vertebrate pests; or

• maintaining, promoting, or regulating plant or animal productivity and performance or reproduction; or

• fulfilling nutritional requirements; or

• the manipulation, capture, or immobilisation of animals; or

• diagnosing the condition of animals; or

• preventing or treating conditions of animals; or

• enhancing the effectiveness of an agricultural compound used for the treatment of plants and animals; or

• marking animals; and

includes—

• any veterinary medicine, substance, mixture of substances, or biological compound used for post-harvest treatment of raw primary produce; and

• anything used or intended to be used as feed for animals; and

• any substance, mixture of substances, or biological compound declared to be an agricultural compound for the purposes of this Act by Order in Council”.

Please note that, for the purposes of this paper, the word ‘compound’ is used to refer collectively to ‘any substance, mixture of substances, or biological compound’.

Which compounds are agricultural compounds?

‘Agricultural compound’ covers the following classes of products:

• veterinary medicines (including those used on companion animals)

• agricultural chemicals (including herbicides, fungicides, insecticides, plant growth regulators, surfactants and adjuvants)

• vertebrate toxic agents (ie, products that kill animals such as possums, rodents and other unwanted mammals)

• fertilisers and soil conditioners

• animal feeds (including pet food).

The following compounds are considered to be agricultural compounds in certain circumstances:

Cleansers, disinfectants, sanitisers, and water conditioners are considered agricultural compounds if they are intended to be used to maintain hygienic conditions for animals or plants (such as a product used to control disease organisms of cows in a dairy shed). Although such products have not been regulated under the ACVM Act in the past, they have always technically fitted the definition of agricultural compounds when used for the purposes of managing pests of plants and animals.

Products used to clean industrial equipment, or marine antifouling paints used in aquaculture are considered agricultural compounds if they are used on equipment in or on which animals or plants are being managed and if the purpose they are being used for is one of those listed in the definition.

Substances that can be said to have the common characteristics of objects, for example absorbable suture material or micro-chips, are considered agricultural compounds if they have a chemical imbedded in them that makes the two inseparable.

Materials with the potential to be used as agricultural compounds are considered agricultural compounds if:

• they need no further manufacture, formulation or modification before being put to that use, and

• there is a stated purpose¹ or use for the product relevant to the definition of agricultural compound in the ACVM Act.

An example of this distinction is that if a bag labelled ‘zinc sulphate’ was purchased without any accompanying stated purpose, then it would not be an agricultural compound at the point of sale. If that same bag was purchased with a label on it stating that it was ‘for use on farm animals for the treatment of footrot’, it would be considered an agricultural compound.

Which compounds are not considered agricultural compounds?

The following classes of compounds are not considered to fit the definition of ‘agricultural compound’:

• products used for purposes that are not listed in the ACVM Act

• public health insecticides

• household fly sprays

• industrial herbicides (where used solely in non plant and animal areas, such as commercial industrial sites, to control weeds for purposes such as maintaining asphalt surfaces).

Purpose is the main consideration

To be considered an agricultural compound, a compound must be used (or expressly intended to be used) for the management of plants and animals in one or more of the ways listed in the ACVM Act definition. For example, the use of a compound to control mosquitoes to avoid the spread of animal or plant diseases makes that compound an agricultural compound. The same compound is not considered an agricultural compound if the purpose of its use is to control mosquitoes to prevent the spread of human diseases (because this purpose is specifically excluded under the ACVM Act).

Products that modify animals or plants, even if only to provide some benefit to people, are considered agricultural compounds because the animals or plants are being managed for a productivity purpose (which is one of the purposes listed in the definition of an agricultural compound). For example, this would include products designed to produce components for human pharmaceuticals from cow’s milk, because the components are as much primary produce as the milk itself.

Public health and household invertebrate pest control products that only have claims to control organisms to benefit humans are not considered agricultural compounds.

Products used to control animals and plants for a use that is not listed in the purposes in the definition (for example, to protect humans) are not considered agricultural compounds.

Clarification of purposes listed in the definition

Most of the purposes set out in the ACVM Act definition do not require clarification. There are, however, three purposes that can be open to different readings.

Managing or eradicating pests

Section 2 of the ACVM Act defines a ‘pest’ as any kind of living organism or part of an organism or genetic structure that is capable of replicating itself, that may affect plants, animals, or raw primary produce. The definition specifically excludes humans or any organism that affects only humans. The outcome of pest management under the ACVM Act must therefore relate to the management of animals or plants.

An organism may be a pest in one context and a plant or animal being managed in another. To be a pest, the organism must have an unwanted/undesirable status. The ACVM Act does not limit the way an animal or plant can be given that status except to say that it can be, but does not have to be, conferred by Order in Council. An organism may also be declared not to be a pest for the purposes of the ACVM Act by an Order in Council.

Pest management includes managing the hygiene of the environment in which animals and plants are managed. Cleansers, disinfectants, sanitisers, and water conditioners are therefore considered agricultural compounds when used for this purpose.

Enhancing the effectiveness of agricultural compounds

Some compounds that do not have a specific plant or animal management purpose on their own are used in combination with agricultural compounds to enhance their management purpose. Such compounds (for example pH buffers, surfactants, stickers and emulsifiers) are considered agricultural compounds because of their use to modify the impact of agricultural compounds.

Diagnosing the condition of animals

This purpose requires minor clarification because there has occasionally been confusion over the meaning of ‘condition’. In this context, it is not intended to refer to assessing an animal’s general health. It is specifically meant to refer to an abnormality in animals, such as a disease.

How do ACVM Act terms affect the scope of ‘agricultural compound’?

‘Animal’

NZFSA considers that all organisms taxonomically classified in the animal kingdom, except humans, are animals. This includes invertebrates and vertebrates but not single-celled organisms such as bacteria and viruses (which may be pests).

‘Animal feed’

The Agricultural Compounds and Veterinary Medicines Amendment Act 2007 extended the definition of agricultural compound to include ‘animal feed’. As noted above, this includes pet food.

‘Plant’

NZFSA considers that any organism commonly understood to be a plant in New Zealand, independent of its taxonomic classification, is a plant.

‘Post-harvest treatment’

The Agricultural Compounds and Veterinary Medicines Amendment Act 2007 broadened the scope of post-harvest treatments beyond pest control and disinfestations of raw primary produce. While this will affect the scope of ‘agricultural compound’, NZFSA is not in a position to set a scope for post-harvest treatments that would be equally relevant to all the industry sectors involved. It intends to use the common terminology of each industry sector to set the scope of post-harvest treatment for that sector.

‘Purpose’

The purpose of the ACVM Act, as stated in section 4, is to prevent or manage listed risks² associated with the use of agricultural compounds, to ensure that their use does not result in breaches of domestic food residue standards, and to ensure the provision of sufficient consumer information about them. The risk areas listed in the ACVM Act’s purpose section have no effect on the scope of ‘agricultural compound.’

Conclusion

Clarifying which products are agricultural compounds is the initial step that needs to be taken under the ACVM Act, quite separately from clarifying what action will be taken by whom. Compounds used to manage animals and plants for the purposes listed in section 2 of the ACVM Act are agricultural compounds. As noted above, some compounds are only considered to be within the scope of ‘agricultural compound’ in certain circumstances.

The ACVM Act requires all agricultural compounds to either be registered or exempt from registration. While it provides a tool that can be used to manage some risks associated with the use of agricultural compounds, the ACVM Act neither requires nor provides a mandate to NZFSA to take responsibility for managing all of those risks. The scope of ‘agricultural compound’ is therefore a separate matter to the allocation of responsibility between government agencies for managing particular agricultural compounds.

The Appendix provides background on the scope of ‘agricultural compound’, and why the term ‘agricultural context’ is no longer relevant.

Appendix: Background to ‘agricultural compound’

Changes in the scope of ‘agricultural compound’

Several factors have contributed to the need to update the scope of ‘agricultural compound’. One is the passing of time; the ACVM Act was enacted in 1997 and several other related pieces of legislation were also passed or came into effect around this time, such as the Animal Products Act 1999, Animal Welfare Act 1999, Biosecurity Act 1993, and the Hazardous Substances and New Organisms Act 1996.

Another factor is that there have been substantial changes in the regulatory environment, including changes in departmental responsibility for the administration of the ACVM Act. As a result, some of the operational interpretations used in the administration of the ACVM Act, particularly around the scope of ‘agricultural compound’ and the use of the term ‘agricultural context’ to define that scope, are no longer appropriate. When the ACVM Act came into force in 2001 the Ministry of Agriculture and Forestry (MAF) was responsible for its administration. From July 2002 this responsibility has been fulfilled by NZFSA. While NZFSA was a semi-autonomous body attached to MAF, the departmental responsibility remained with MAF. In July 2007 NZFSA was established as a stand-alone government department and became solely responsible for the administration of the ACVM Act.

The change in the ACVM Act’s administration took place in the context of wider public sector change. The whole of government approach now requires agencies to coordinate their respective responsibilities. The ACVM Act always set an expectation that the regulatory control of agricultural compounds must not only be effective but efficient with full regard to controls imposed under related legislation.

The ACVM Act was developed to replace the Animal Remedies Act 1967, the Pesticides Act 1979, the Fertilisers Act 1960, and the Stock Foods Act 1946. The term ‘agricultural compound’ was used to refer generally to the range of products regulated under these various Acts and had been in use from the late 1980s. The term ‘veterinary medicine’ was added to the title of the Act at the Select Committee stage along with a definition. The intention was to clarify that compounds used directly in the management of all animals (ie, companion pets as well as livestock) were included within the scope of an ‘agricultural compound’.

The term ‘agricultural context’ is no longer relevant

The development of the ACVM Act saw the use by MAF of the term ‘an agricultural context’ to describe the likely products that would be regulated under the new Act. However, the drafting and subsequent passage of the Act itself did not result in an express limitation to agricultural outcomes. While ‘agricultural context’ was used to provide guidance on the definition of agricultural compound, there is no statutory statement on what it means and how it is applied.

MAF used the term ‘agricultural context’ to clarify that the ACVM Act was intended to provide regulatory control for products that were traditionally understood to be used in an agricultural context (with the exception of veterinary medicines). This meant products that were used solely to achieve outcomes to do with industrial, public health, or conservation/environmental protection were not considered agricultural compounds. Although such products had been regulated under the Pesticides Act, this approach seemed reasonable at the time given the passage of or development of other legislation that was occurring. MAF further narrowed the scope of ‘agricultural compound’ by excluding production for own use/consumption from ‘agricultural context’. This meant that people who were not producing primary production for sale were not considered to be involved in agriculture. ‘Agricultural context’ used in this way described MAF’s sphere of interest and responsibility. This is also demonstrated by the use of the term ‘agricultural security’ to describe one of the risk areas to be managed under the ACVM Act rather than the term ‘biosecurity’; at that time biosecurity was managed by a range of government departments and MAF was responsible for only the ‘agricultural’ aspect.

It is no longer considered useful to refer to an ‘agricultural context’ when discussing the scope of the definition of agricultural compound. The use of the term ‘agricultural context’ was never a good fit for the full range of products regulated under the ACVM Act. This is shown by the recognition of veterinary medicine as a separate but included term. NZFSA’s decision to exempt home garden products from registration is also a clear indication that products used outside what would traditionally be seen as an ‘agricultural context’ do fall within the scope of ‘agricultural compound’.

¹ ‘Stated purpose’ includes labels, advertising claims, and verbal statements purporting to give some information about the compound.

² These are risks to public health, trade in primary produce, animal welfare, and agricultural security.