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A guide to the Animal Products Act 1999, the Food Act 1981 and the Food Hygiene Regulations 1974 - Information Pamphlet

A guide to the Animal Products Act 1999, the Food Act 1981 and the Food Hygiene Regulations 1974

March 2009

This document seeks to clarify the requirements of, and the interaction between, the Animal Products Act 1999, the Food Act 1981 and the Food Hygiene Regulations 1974 (including the Health (Registration of Premises) Regulations 1966.

It is brief and in simple terms and is intended only as a general guide. Further information on the legislation or processes required should be directed to the appropriate person noted at the back of this document or the New Zealand Food Safety Authority (NZFSA) website: http://www.nzfsa.govt.nz Also included is a definitions guide spelling out the legislative meanings of certain terms.

Disclaimer – this publication is intended as an introductory guide only. The explanations are not intended to take the place of, or represent, the legislation or other written law or professional advice. It is provided on the basis of best knowledge available and is general information only.

1. Animal Products Act 1999 (APA)

1.1 The APA is administered in the NZFSA. The APA sets out a regulatory regime with the twin objectives of:

i. minimising and managing risks to human and animal health arising from the production and processing of animal material and products; and

ii. facilitating the entry of animal material and products into overseas markets.

1.2 This paper focuses on the first of the two objectives and, in particular, the provision in the APA of the risk management programme (RMP) scheme.

Risk Management Programmes

1.3 A RMP is a written document, specific to a particular operator’s business, which sets out how the operator will identify and control, manage and eliminate or minimise hazards and other risk factors in relation to their production and processing of animal material and animal products in order to ensure that the resulting animal product is fit for the intended purpose.

Who needs a Risk Management Programme?

1.4 The APA at section 13 requires the following persons to operate under a RMP:

a. all primary processors of animal material;

b. all secondary processors of animal products intended for human or animal consumption, except to the extent that they are subject to the Food Act regime; and

c. retail butchers who are dual operator butchers, and

d. such other persons as may be specified by Order in Council under section 15 as requiring to operate under a RMP.

1.5 Note that secondary processors of animal products may operate under the Food Act regime unless the products are exported and an Official Assurance is required. In this instance, these processors should have a RMP.

1.6 Further information about export requirements under the APA and the Wine Act 2003 is noted on the website as follows:

Animal products http://www.nzfsa.govt.nz/animalproducts/subject/exporters/index.htm

Wine http://www.nzfsa.govt.nz/wine/exporting-wine/index.htm

Operators exempt from having Risk Management Programmes

1.7 Despite the list in para 1.4 above there are some operators who are exempt from the requirement to have a RMP by the Animal Products (Exemptions and Inclusions) Order 2000 (Order). Exempt operators include:

Dairy processors of dairy products consumed on premises

1.8 Clause 7A of the Order states that Parts 2 to 4 of the APA (the RMP, regulated control scheme, and standard and specification making provisions) do not apply to the processing of dairy products for human consumption if:

• the processing is carried out at the premises where all the resulting product is consumed; and

• no dairy product is exported from those premises; and

• the dairy product is sold only by way of retail sale.

If all these conditions are met a RMP is not required.

Processors of certain dairy products that are multi-ingredient foods

1.9 Clause 7B of the Order provides that Parts 2 to 4 of the APA do not apply to the processing of the following dairy material or products:

• multi-ingredient foods and other prepared foods that, despite containing one or more ingredients that are dairy material or products, do not consist principally of dairy material or products (for example biscuits, cakes, bread, soups, sauces, snack goods, pastries, confectionery, and also prepared meals that do not consist principally of dairy products:

• formulated caffeinated beverages and alcoholic beverages.

The exemption does not apply to the processing of ice cream.

1.10 As para 1.8 and 1.9 operators are only exempt from Parts 2 to 4 of the APA, other parts of the APA and the Food Act, Food Hygiene Regulations, the Australia New Zealand Food Standards Code (Food Standards Code) and standards relating to labelling and composition requirements still apply to these operators.

Domestic dairy processors

1.11 Clause 8A states that RMPs are not required for dairy processors who:

• are not farm dairy operators; and

• process dairy material for the domestic market or Australia only; and

• process the dairy material in accordance with an approved food safety programme

A RMP is required if the product is intended to be exported other than to Australia.

Food for animal consumption

1.12 There are some exemptions from the need for a RMP for processors producing food for animal consumption. These are noted at clauses 8B and 9 of the Order.

Fish premises

1.13 There are specific exemptions from the requirement to have a RMP for fish retailers, storage facilities, processors, whitebait harvesters and tourist ventures. Please refer to the Order for further details about these exemptions.

Egg producers

1.14 Egg producers are primary processors and are therefore required to have a RMP. However, under clause 11F of the Order, a RMP is not needed for the production, processing, or sale of eggs if the egg producer:

• has 100 laying hens or fewer; and

• sells all eggs that are intended for human or animal consumption direct to the consumer or end user; and

• does not sell any of the eggs to any person for further sale.

Other premises

1.15 Further information on other processors exempt from needing a RMP may be obtained from the Order

1.16 Note that the exemptions in paras 1.11 – 1.15 above only relate to dispensing with the need for a RMP. Regulated control schemes provided for in Part 3 of the APA and standards and specifications set under Part 4 (where appropriate) as well as other relevant aspects of the APA, the Food Act, the Food Hygiene Regulations, the Food Standards Code and standards relating to labelling and composition requirements still apply to operators exempt from having a RMP.

The effect of a Risk Management Programme

1.17 When a business operates under a RMP it is covered by the APA and the provisions in the Food Act regime do not apply for the operations covered by the RMP. This means the premises detailed in the RMP are not subject to the Food Hygiene Regulations or the Health (Registration of Premises) Regulations 1966 for the operations covered by the RMP.

1.18 However, the business must still comply with the Food Act general prohibitions of sale, standards relating to labeling and composition requirements and the Food Standards Code. And Food Officers can visit RMP premises to ascertain that these requirements are being complied with.

1.19 If a person is required to have a RMP but does not he or she is in breach of the APA for which sanctions are provided. Where a RMP is mandatory, a person cannot operate under a Food Safety Programme or the Food Hygiene Regulations instead of a RMP.

Process of registering a Risk Management Programme

1.20 RMP may be developed:

i. individually for the situation; or

ii. based on a template (see the website www.nzfsa.govt.nz), model or Code of Practice.

1.21 MP configurations within the above combinations can relate to single business RMPS or multi-business RMPs.

1.22 Single business RMPS can include:

i. single business, single site, with one RMP (simplest form of RMP and most encouraged)

ii. single business, single site, with more than one RMP

iii. single business, multi-site, with one RMP

iv. single business, multi-site each with more than one RMP

1.23 Help for where to start may be gained from the RMP Helpdesk (contact details are at the back of this document or on the NZFSA website at: http://www.nzfsa.govt.nz/animalproducts/subject/rmp/index.htm for animal products or http://www.nzfsa.govt.nz/dairy/help/dairyfaqsmarch2006.htm for dairy products, or from the RMP Manual (also on the website), or contacts provided at the back of this document. Note that there are differences between the requirements for dairy RMPs and non-dairy RMPs. If processors are intending to do a combination of both they should contact NZFSA to clarify requirements.

1.24 Once the RMP is developed the business operator contacts the NZFSA Verification Authority (NZFSAVA) or a recognised RMP verifying agency (see website: www.nzfsa.govt.nz) to have a verifier assigned to their business. Once a verifier has been confirmed the operator is ready for the RMP to be evaluated by a recognised evaluator (see website: www.nzfsa.govt.nz). This is required unless an exemption is given. Contact a recognised evaluator for details about existing exemptions.

1.25 The operator then applies for registration of the RMP by sending a completed application form, the evaluator’s report (if any), a copy of the RMP or RMP outline and the name of the verifier to the NZFSA. Each RMP to be registered must be accompanied by an application fee. An additional assessment fee must be paid before registration will be granted. Further details of the fees can be found in the Animal Products (Fees and Charges) Regulations 2002. If all the paperwork is in order, the requirements of the legislation are met and the correct fees are paid, the RMP will be registered.

2. Food Act 1981 (Food Act) & Food Hygiene Regulations 1974 (FHR)

2.1 The Food Act regulates the sale of food for human consumption and is administered by the NZFSA. Part 1A of the Food Act seeks to facilitate a voluntary transition from compliance with the FHR to the adoption by the food industry of food safety programmes. A food safety programme (FSP) may relate to either a particular part of the food industry or a particular person or group of persons within the food industry. FSPs are verified by approved independent auditors and regulated by the NZFSA and Public Health Units of District Health Boards.

2.2 The FHR spell out specific requirements and measures which focus on ways that food risks can be managed or avoided that operators must adhere to. The FHR are regulated by NZFSA and by Local Authorities through their Environmental Health Officers.

2.3 Every person who sells food for human consumption or use must comply with the requirements of the Food Act, the FHR, the Food Standards Code and standards relating to labeling and composition requirements, with some exceptions.

Wine Act 2003

2.4 The Wine Act 2003 requires winemakers to register a wine standards management plan (WSMP). For those operations covered by the WSMP the Food Act regime (including the Food Hygiene Regulations) and Health (Registration of Premises) Regulations 1966 do not apply.

Operators exempt from the Food Act regime

2.5 The Food Act regime means the alternative regimes under the Food Act that consist of or relate to:

i. Part 1A of the Food Act and food safety programmes

ii. The Food Hygiene Regulations

2.6 It should be noted that whichever regime is chosen (FSP or FHR) the remaining sections of the Food Act and standards relating to labelling and composition requirements and the Food Standards Code continue to apply.

2.7 A person may be exempt from the Food Act regime if:

• they are required to operate a registered RMP under the APA or a wine standards management plan registered under the Wine Act 2003; or

• they are covered by a Regulated Control Scheme under the APA; or

• they are a secondary processor of animal products that are food who has elected to register a RMP and be subject to the APA; or

• they are a dairy processor; or

• they are a secondary processor of animal products that are food who has registered a FSP as a RMP for the purpose of operating under the two programmes alternatively or intermittently (and at the time is operating under the RMP).

Food Safety Programmes

2.8 FSPs identify and control food safety risk factors in order to establish and maintain food safety. Food safety risk factors may relate to the production, manufacture, preparation, packaging, storage, handling, transport, distribution, or sale of food.

2.9 A FSP may relate to a particular part of the food industry and/or a particular person or group of persons within the food industry.

2.10 If a business operator has an approved FSP and an exemption under section 8F of the Food Act has been granted, Parts 1 to 17 of the FHR do not apply. Note that the exemption does not dispense with obligations under Part 18 of the FHR, or the Food Act. And the Food Standards Code and standards relating to labelling and composition requirements continue to apply.

2.11 With an approved FSP, the parts of the business covered by the FSP are regulated by the Food Act through the NZFSA and District Health Boards. Verification of the FSP is through an approved independent auditor.

Who needs a Food Safety Programme?

2.12 There is no statutory authority which specifies particular persons required to have FSPs. But, in order to effect transition from compliance with the FHR (which are now more than 30 years old) the food industry is encouraged to adopt FSPs. In addition, some operators (such as some dairy and fish processors) are required to operate under an approved FSP or registered RMP. They cannot operate under the FHR.

Process of having a Food Safety Programme approved

2.13 Where a person develops a FSP in accordance with the provisions of the Food Act they may apply for exemption from Parts 1 to 17 of the FHR. Before exemption is granted the FSP must be assessed and approved. The assessment is carried out by a Designated Officer in the Public Health Unit of the relevant District Health Board. The Designated Officer sends his or her recommendation for exemption and a copy of the FSP to the NZFSA for review and approval. If the NZFSA approves the FSP a letter is sent to the applicant informing them that their FSP has been approved and that they are now exempt from Parts 1 to 17 of the FHR.

2.14 The cost for assessment, approval and exemption depends on the amount of work undertaken by the Designated Officer and the NZFSA. The hourly rates and travel costs for this are prescribed in the Schedule in the Food (Fees and Charges) Regulations 1997.

3. Combinations of the APA, the Food Act and FHR

Mixed operations

3.1 A food related business cannot operate in part under the FHR and in part under a FSP; a business must choose one or the other. However a business may part operate under a RMP for animal material and part under a FSP for non-animal material; or part under a RMP for animal material and part under the FHR for non-animal material.

What if no Risk Management Programme or Food Safety Programme?

3.2 If a person operating a food related business is not required to register a RMP under the APA, and does not have an approved FSP under the Food Act, or a WSMP under the Wine Act, they will be subject to the FHR.

3.3 If a business is subject to a regulated control scheme under the APA an approved FSP is not required and the FHR do not apply to these businesses.

What if a business produces both animal products and non-animal products?

3.4 If the business requires a RMP for the animal products side of its business any non-animal products also produced cannot generally be included within that RMP. The non-animal products will be covered by either a FSP or the FHR (see point 3.1 above).

Which Authority deals with which regime?

3.5 When a business operates a RMP, all the operations covered by the RMP are regulated by the APA through the NZFSA.

3.6 If the business operates a FSP, the parts of the business covered by the FSP are regulated by the Food Act through the NZFSA and District Health Boards.

3.7 If the business is subject to the FHR, the Local Authorities and District Health Boards monitor compliance and the processes required by the Food Act. The NZFSA may also be involved.

Requirements of specific operators

3.8 There are many types of animal products and animal material that are covered by the APA. These include meat, fish, dairy, eggs, bee products, and petfood. Each has its own specific legislative requirements. There is information about many of the different operators on the NZFSA website http://www.nzfsa.govt.nz

3.9 For animal products in general see http://www.nzfsa.govt.nz/animalproducts/index.htm This web page provides links to specific animal products areas such as bee products, eggs, seafood and petfood.

3.10 For dairy see http://www.nzfsa.govt.nz/dairy/help/faqs-aparmp.htm

Contacts

The following people and organisations may be contacted to provide further assistance. In addition, the NZFSA website contains a large amount of information www.nzfsa.govt.nz

Risk Management Programmes (Animal Products excluding Dairy)

Sharon Wagener Sharon.Wagener@nzfsa.govt.nz Tel 04 894 2634

Bryan Anderson Bryan.Anderson@nzfsa.govt.nz Tel 03 214 3590

Risk Management Programmes (Dairy)

Dianne Schumacher Dianne.Schumacher@nzfsa.govt.nz Tel 04 894 2659

Shona Scott Shona.Scott@nzfsa.govt.nz Tel 04 894 2653

Food Safety Programmes

Stephen Bell Stephen.Bell@nzfsa.govt.nz Tel 04 894 2588

Dual Operator Butchers

Peter Fairless Peter.Fairless@nzfsa.govt.nz Tel 04 894 2624

Sharon Wagener Sharon.Wagener@nzfsa.govt.nz Tel 04 894 2634

Egg Producers and Poultry Processors

Sharon Wagener Sharon.Wagener@nzfsa.govt.nz Tel 04 894 2634

District Health Boards

You can find the telephone number of your local District Health Board using the blue pages at the front of your telephone book.

Local Authorities

You can find the telephone number of your Local Authority using the blue pages at the front of your telephone book.

Animal Products Act 1999 - Definitions

Primary processor

A primary processor as defined in the APA means a person who, for reward (otherwise than as an employee) or for purposes of trade,—

a. Slaughters and dresses mammals or birds; or

b. Dresses mammals or birds that are killed wild animals or are killed as if they were wild animals; or

c. Removes or extracts or harvests any animal material from live animals for the purpose of processing for human or animal consumption; or

ca. is a dairy processor; or

d. in the case of—

i. finfish or shellfish, or animal material derived from finfish or shellfish; or

ii. a mammal or bird, or animal material derived from a mammal or bird, if in the opinion of the Minister it is appropriate that the primary processing of that mammal or bird or animal material should extend beyond the matters referred to in paragraphs (a) and (b); or

iii. any other animal, or animal material derived from any other animal,—
processes those animals or that animal material to the extent specified by the Minister by notice in the Gazette after appropriate consultation in accordance with section 163 and after having regard to the following matters:

iv. industry practice in relation to the animal material concerned:

v. the degree of processing and number of processing operations required in relation to the animal material:

vi. the risk factors involved in processing the animal material:

vii. whether or not the processing of the animal material is or may be appropriately addressed by any legislative regime other than this Act:

viii. Such other matters as the Minister considers relevant in the particular circumstances;—
but does not include hunters within the meaning of paragraph (b) of the definition of ‘primary producer’.

Further guidance as to the meaning of primary processor is available in the Animal Products (Definition of Primary Processor) Notice 2000, a copy of which may be found on the website:
http://www.nzfsa.govt.nz/animalproducts/legislation/notices/primary-processors.htm

Secondary processor

Secondary processor means a person who, for reward (otherwise than as an employee) or for purposes of trade, processes animal product at any stage beyond its primary processing.

Retail butcher

Retail butcher includes any type of butchery engaged in retail trade in regulated animal products.

Dual operator butcher or dual operator

Dual operator butcher means a retail butcher who−

a. Is listed under section 76 as a homekill or recreational catch service provider; and

b. Processes homekill or recreational catch at the same premises or place as the retail butcher processes or trades in regulated animal product.

Food Act regime

The Food Act regime means the alternative regimes under the Food Act that consist of or relate to:

i. Part 1A of the Food Act and food safety programmes

ii. The Food Hygiene Regulations

Disclaimer:

This publication is not a legal interpretation of the Animal Products Act or the Animal Products (Ancillary and Transitional Provisions) Act and is intended only as a guide.