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Domestic Food Review - Policy and Related Implementation Position Paper

5 Transition Implementation

5.1 Why is a transition period needed?

Approximately 35,000-37,000 food businesses will be affected by the proposed Food Act. These food businesses start from different regulatory and operating positions. Some have a registered Food Safety Programme under the Food Act 1981, some are subject to the Food Hygiene Regulations, and others are exempt from registration.

The proposed Food Act will stipulate the following control mechanisms for ensuring food safety and suitability by the end of the transition period: Food Control Plans, and/or National Programmes or Food Handler Guidance.

With the variety of starting positions, the variety of solutions, and the large number of food businesses involved, a pragmatic phased approach to transition is needed. For example, it is estimated that more than 80,000 occasional food activities will be covered by Food Handler Guidance.

In addition, the level of resources and skills at NZFSA, Territorial Authorities, third-party agencies and among food businesses also make a case for a staged implementation of the proposed Food Act regime, including flexibility around the timing of transition for food sectors or groups of businesses within sectors.

Accordingly, a five-year transition period is needed to:

• allow food businesses time to change to the new regime in a measured way

• build capability in order to develop and implement tools, systems and guidance amongst all stakeholders (food businesses, agencies and regulator).

5.2 When will food businesses be affected?

Commencement of the proposed Food Act is uncertain (it depends on passage through Parliament) and some operational aspects remain under development, so specific dates for each sector will be determined over a year in advance. Food Control Plans and National Programmes are to be phased in over a period of five years from the start of implementation.

The basic principles for each food sector are that:

• new food regulations and supporting notices will apply from the commencement date of the proposed Food Act

• tools for each sector will be in place six months before the scheduled Food Control Plan or National Programme implementation deadline

• recognised evaluators will be available six months before the scheduled Food Control Plan application lodgement deadline

• verifiers will be recognised by the earliest scheduled registration date, which is the same date that tools for the sector become available

• minimum required competency of key people in food businesses may be mandated for some sectors but food businesses will be given a reasonable time period to fulfil their education and training needs, where applicable

• all food businesses, whether their sector-specific activities are included in a new risk management tool or not, will be required to continue to meet food safety and suitability requirements stipulated by the proposed Food Act, such as the joint Food Standards Code and New Zealand-only standards, or by subordinate legislation

• food businesses with Food Safety Programmes that are registered upon commencement of the proposed Food Act, or that become so registered, may not choose to cancel them without replacing them with a Risk Management Programme, a Food Control Plan and/or National Programme, as applicable. For further detail on registered Food Safety Programmes refer to section 5.3.

Tables 3.1 to 3.5 contain the food sectors identified by NZFSA, together with the main risk management tool likely to apply to each sector, and a firm proposal of the transition year in which food businesses in each sector are to register Food Control Plans and/or with a National Programme (if required) under the new regime. The food sector transition timeline is primarily based on NZFSA’s Risk Ranking and Prioritisation Model, with the higher-risk food sectors generally to transition first.

Within each sector that has an off-the-peg Food Control Plan available, there may be food businesses that nonetheless choose to register custom-made Plans. Also, within each food sector, there may be food businesses that meet the criteria for exemption from a Food Control Plan or National Programme and will instead be covered by Food Handler Guidance (see Appendix 3).

Table 3.1: Food sectors intended for registration in Year 1 of transition

Food Sector	Description/example	Risk Management tool
Food Service – on-site catering	Businesses providing food service where food is served to large numbers of people simultaneously. Food is prepared and served at the same venue. Examples: defence catering, prison catering, boarding schools, university and college catering, in-house catering (eg, at clubs and similar venues), certain ‘rent-a-chef’ operations. This does not include restaurants offering buffet services, which are included in general food service.	Off-the-peg Food Control Plan
Food service – off-site catering	Businesses primarily providing food services at a venue other than where the food was prepared. They may have equipment and vehicles to transport meals and snacks to venues/events. Examples: office/corporate catering, gala meals, functions where food is brought into clubs or community halls.	Off-the-peg Food Control Plan
Food service – general – with a full time liquor on-licence	Businesses providing meals, snacks and beverages to customers for immediate consumption on premises, home delivery or take-away and that have a full-time liquor on-licence. Examples: Café, restaurant, permanent workplace canteen, large food chains, bars/pubs/clubs, hotels, backpackers, large bed and breakfasts.	Off-the-peg Food Control Plan
Fresh salad manufacturer (ready-to-eat)	Business making fresh salads (not for direct retail sale), including green salads, fruit salads, potato salad, bean salad, rice/pasta/grain-based salads. Includes fresh herbs and spices, fresh sprouts.	Custom-made Food Control Plan
Providers to vulnerable populations (1) Manufacturers	Manufactured products specifically targeted for vulnerable populations. Example: infant formula, baby foods	Customer-made Food Control Plan

(1) ‘Vulnerable populations’ are defined as children under five years of age, elderly people over 65 years of age, pregnant women, and people with compromised immune systems.

Table 3.2: Food sectors intended for registration in Year 2 of transition

Food sector	Description/example	Risk management tool
Food Service –designated points of entry – International Health Regulations (IHR)	Food businesses within the boundaries of a Designated Point of Entry and subject to International Health Regulations (IHR), eg, international airports, ports. Example: airline catering, cafés within international airport boundaries, airline members lounges at international airport	Off-the-peg Food Control Plan
Food service –general – NO liquor licence or other than a full-time liquor on-licence	Businesses providing meals, snacks and beverages to customers for immediate consumption on premises, home delivery or take-away. Examples: café, restaurant, permanent workplace canteen, large food chains, ice-cream shop, delivery of pizzas or other meals, school dining room, large bed and breakfasts,	Off-the-peg Food Control Plan
Manufacturers of chilled sauces, spreads, dips, soups (excluding butter & margarine spreads)	Manufactures sauces, dips, soups, spreads (chilled) Examples: hummus, tzatziki, pesto, salsa, gazpacho, mayonnaise	Custom-made Food Control Plan
Nut processors	Processes nuts Examples: salted peanuts, raw nut mix, honey-roasted cashews	Custom-made Food Control Plan
Providers to vulnerable populations (1) Food service – live-in or 24-hour care	Food services associated primarily with vulnerable populations delivered in a residential (live-in or 24 hour care) setting. Includes cook/chill services. Examples: rest home, aged residential care, hospice, convalescent care facility, maternity home, meals on wheels	Off-the-peg Food Control Plan
Providers to vulnerable populations (1) Retailers and food services – day care	Food Services associated primarily with vulnerable populations. Example: elderly day care, crèche, kindergarten, children’s day care	Off-the-peg Food Control Plan
Providers to vulnerable populations (1) Retailers and food services – hospitals	Retailers and food services primarily serving vulnerable populations. Includes cook/chill services (where food is prepared for delivery to one or more hospitals). Example: public hospitals, private hospitals	Off-the-peg Food Control Plan
Raw milk (farm-gate sales)	Farmers selling raw milk at the farm, in amounts of no more than 5 litres at a time, for use by the purchaser and his/her family.	National Programme
Soy product processors/ manufacturers - short shelf life (excluding soy crisps, included in crisp manufacturers)	Manufactures soy products for short shelf life (chilled). Examples: Soy yoghurt, soy milk, soy ice-cream, soy sausages, soy burgers, tofu, soy cheese	Custom-made Food Control Plan

(1) ‘Vulnerable populations’ are defined as children under five years of age, elderly people over 65 years of age, pregnant women, and people with compromised immune systems.

Table 3.3: Food sectors intended for registration in Year 3 of transition

Food sector	Description/example	Risk management tool
Commercially sterilised products	Manufactures commercially sterile canned, bottled, poached, trayed, aseptically packaged foods Example: stocks, soups, vegetables, fruit, jams	Custom-made Food Control Plan
Eggs - further processing	Pulping, pasteurisation (secondary processing), boiling, drying	Custom-made Food Control Plan
Food retailer (1) - handles and retails food	Sells at retail packaged and/or unpackaged food and/or repackaged food (eg, fresh fruit) and/or small-scale food service (eg, serving ice cream, pick-and-mix lollies) Examples: some dairies, service stations, mini-marts, school canteen/tuck shop (no meals)	Off-the-peg Food Control Plan
Food retailer (1) – makes, handles and retails food	Sells at retail all forms of food, also handles and manufactures food Examples: supermarkets with butcher and/or bakery and/or delicatessen; dairies making and selling sandwiches, rolls, muffins, etc.	Off-the-peg Food Control Plan
Food service - mobile food services	Mobile (vehicle-based) food business providing meals, snacks and beverages to customers for immediate consumption Examples: ice-cream vans, vendors, gypsy vans, pie carts	Off-the-peg Food Control Plan
Herb and spice manufacturer (dried)	Manufactures dried herb and spices (including salt and pepper) Example: paprika, cinnamon, thyme	Food Control Plan
Horticultural packing operations (packhouses)	Packs horticultural products, including suitability decisions, sorting, grading & pre-market preparation	National Programme
Horticultural producers (2) – grasses	Growers of cereal grains, grasses for sugar or syrup production Examples: maize, wheat, sugar cane, sweet sorghum	National Programme
Horticultural producers (2) – fruit	Growers (farmers) of citrus fruits, pip fruits, stone fruits, berries and other small fruits, assorted tropical and sub-tropical fruits, peel Examples: kiwifruit, oranges, apricots, blueberries, olives, feijoas	National Programme
Horticultural producers (2) – nuts & seeds	Growers (farmers) of tree nuts, oilseed, seed for beverages & sweets Examples: chestnuts, walnuts, sunflower seeds, coffee beans	National Programme
Horticultural producers (2) – herbs & spices	Growers (farmers) of herbs and spices Examples: basil, parsley, root ginger, celery seed	National Programme
Horticultural producers (2) – vegetables	Growers of bulb vegetables, brassica vegetables, fruiting vegetables, leafy vegetables, legumes, pulses, root & tuber vegetables, stalk & stem vegetables Examples: garlic, onions, potatoes, cauliflower, courgettes, mushrooms, lettuce, runner beans, chick peas, carrots, celery	National Programme
Manufactured and fermented meat, poultry, fish manufacturers - not ready-to-eat	Manufactures non RTE manufactured meat, fish or poultry products. Examples: bacon, sausages, domestic boning rooms (does not include manufacturers selling direct for retail sale – included in ‘Retail Butcher’)	Off-the-peg Food Control Plan
Manufactured and fermented meat, poultry, fish manufacturer - ready-to-eat	Manufactures ready-to-eat meats (small goods); excludes manufacturers selling direct for retail sale (included in ‘retail butcher’) Examples: salami, liverwurst, beef jerky, smoked fish or chicken, paté	Custom-made Food Control Plan
Retail butcher (3) -not ready-to-eat meat	Prepares and sells raw meat direct for retail sale Example: sausages, meat cuts, roasts	Off-the-peg Food Control Plan
Retail butcher (3) -ready-to-eat meat	Manufactures ready-to-eat small goods and may also prepare and sell raw meat direct for retail sale	Off-the-peg Food Control Plan

(1) ‘Food retailer’ excludes retail bakeries, retail Confectionery-makers and retail butchers(2

(2) ‘Horticultural producer’ as defined in CAC/PR 4-1989: ‘Guide to CODEX Recommendations Concerning Pesticide Residues, Part 4, CODEX Classification of Foods And Animal Feeds’, Version 2, 1989, pages 1-59.(3

(3) ‘Retail butcher’ excludes supermarkets that have a retail butcherTa

Table 3.4: Food sectors intended for registration in Year 4 of transition

Food sector	Description/example	Risk management tool
Chilled meals manufacturer	Manufactures chilled meals unless captured elsewhere; assumes meals are to be reheated prior to consumption	Off-the-peg Food Control Plan
Confectionery manufacturer – wholesale	Manufactures all types of confectionery. Example: candy, chocolate, liquorice, jubes	Custom-made Food Control Plan
Confectionery manufacturer – retail	Makes confectionery direct for retail sale. Example: chocolate store, candy shop	Off-the-peg Food Control Plan
Distributors and transporters	Includes pre-retail distribution & transport not captured in another category Examples: cold storage, warehouses, wholesalers & transporters of food	National Programme
Manufacturer of food additives, processing aids, vitamins, minerals and other nutrients	Manufactures food additives for commercial and personal use Examples: colours, flavourings, emulsifiers, processing aids, vitamins, minerals	Custom-made Food Control Plan
Manufacturer of frozen meals & meal components	Manufacturers frozen meals unless captured elsewhere. Examples: fish fingers, chicken nuggets, frozen dinners, frozen desserts, frozen fish/chicken/meat portions, frozen pies	Off-the-peg Food Control Plan
Juice manufacturer (1) –(vegetable and fruit) Short shelf life 100% juice	Manufacturers short shelf life juices. May or may not be pasteurised. Example: 100% Orange juice (chilled)	Off-the-peg Food Control Plan
Juice manufacturer (1) – (vegetable and fruit) – short shelf life - less than 100% juice	Manufacturers short-shelf-life juice drinks; may or may not be pasteurised. Example: berry juice smoothie drink (chilled)	Off-the-peg Food Control Plan
Juice Manufacturer (1) – (vegetable and fruit) – extended shelf life - 100% juice	Manufacturers extended-shelf-life juices Example: 100% tropical fruit juice (shelf-stable)	Off-the-peg Food Control Plan
Juice Manufacturer (1) – (vegetable and fruit) – extended shelf life – less than 100% juice	Manufacturers extended-shelf-life juice drinks Example: apple drink (shelf-stable)	Off-the-peg Food Control Plan
Retail bakery (2) – bakery products	Makes a range of bakery items direct for retail sale. Examples: slices, pies, cakes & pastries	Off-the-peg Food Control Plan
Retail bakery (2) - bread products	Makes a range of bread-type products direct for retail sale, but does not make foods such as cakes, pies, slices & pastries	Off-the-peg Food Control Plan

(1) ‘Juice manufacturer’ excludes juice squeezed and served directly to the customer (eg, at a juice bar), which is included in ‘food service’.

(2) ‘Retail bakery’ excludes supermarkets with a retail bakery, which are included in ‘Food retailer – makes, handles, retails food’.

Table 3.5: Food sectors intended for registration in Year 5 of transition

Food sector	Description/example	Risk management tool
Brewery/distillery/ vinegar manufacturer	Manufactures alcoholic beverages or vinegar; may also pack, store and transport product Example: beer brewery	Custom-made Food Control Plan
Carbonated and uncarbonated drink manufacturer	Manufactures all types of non-alcoholic drinks except juices Examples: sports drinks, cola beverages, cordial, water, energy drinks	Custom-made Food Control Plan
Cereal product manufacturer – perishable	Manufactures perishable/fresh cereal products; excludes those selling direct for retail sale (see ‘retail bakery’ categories) Examples: bread, pizza bases, naan, cakes, slices, muffins, rice milk, fresh pasta	Custom-made Food Control Plan
Cereal product manufacturer Shelf stable	Manufactures shelf-stable or long-shelf-life cereal products; excludes those selling direct for retail sale (see ‘Retail bakery – bakery products’). Examples: breakfast cereals, pasta, noodles, pastry, breakfast bars, muesli bars, savoury biscuits, pappodums, sweet biscuits	Custom-made Food Control Plan
Crisp manufacturer	Manufactures chippies, chips, popcorn, pretzels, soy crisps & similar snacks	Custom-made Food Control Plan
Dried fruit and vegetable manufacturer	Manufactures dried fruit % dried fruit products Examples: dried apricots, sultanas, dried apples, dried peas, dried mushrooms, sun-dried tomatoes, banana chips, fruit leather bars	Custom-made Food Control Plan
Dry mix (powder) manufacturer	Manufactures drink, soup, sauce, flavour, dessert dry-powder mixes Examples: drinking chocolate, teabags, instant coffee, cake mix, jelly crystals	Custom-made Food Control Plan
Food retailer (2) – retail only	Sells only packaged foods Examples: some dairies, liquor store	Off-the-peg Food Control Plan
Manufacturer of food-type dietary supplements	This covers food dietary supplements not covered by any other sector	Custom-made Food Control Plan
Manufacturer of frozen fruit & vegetables	Manufactures packets of frozen fruit and/or vegetables; excludes frozen chips, hash browns and similar products Examples: frozen mixed berries, peas and corn mix	Off-the-peg Food Control Plan
Grain processor	Processes grains into processed grain Examples: processing wheat, oats, corn or rice into flour, semolina, rice or couscous	Custom-made Food Control Plan
Ice & iced Confectionery manufacturer	Makes ice, ice-blocks, sorbet; excludes dairy-based frozen products (ice-cream) or desserts	Off-the-peg Food Control Plan
Manufacturer of acidified, preserved, and/or low-water-activity shelf stable condiments	Manufactures shelf-stable condiment foods. Example: Spreads, sauces, pickles, nut butters	Off-the-peg Food Control Plan
Oil & fat manufacturer	Manufactures oils and fats Examples: olive oil, vegetable or fruit oils, margarine, lard	Custom-made Food Control Plan
Soy product processors/ manufacturers – extended shelf life	Manufactures soy products with extended shelf life; excludes soy crisps (see ‘Crisp manufacturers) Example: UHT soy milk	Off-the-peg Food Control Plan
Sugar/honey manufacturer	Processes/manufactures various sugar and sugar-based products Examples: raw sugar, brown sugar, icing sugar, honey & honey products, syrups (glucose, flavoured), malt, molasses	Honey: Off-the-peg Food Control Plan Sugar: Custom-made Food Control Plan
Any other ‘food business’	Any ‘food business’ that does not fit into one or more of the other food sectors.	Custom-made Food Control Plan

5.3 Existing registered Food Safety Programmes

Some food businesses in sectors included in Tables 3.1 to 3.5 may currently have registered Food Safety Programmes. On the basis that a Food Safety Programme is sufficiently similar in approach to a Food Control Plan, they will become deemed Food Control Plans from commencement of the proposed Food Act. They will require alignment with Food Control Plans at the latest by the end of the transition period.

Food businesses with registered Food Safety Programmes will remain in NZFSA’s registration database, subject to their ongoing compliance with registration requirements.

Registered Food Safety Programmes will continue to be non-transferable (as for registered Food Control Plans) and will become time limited from the earlier of the:

• food business’ registration of an off-the-peg or custom-made Food Control Plan under the new regime; or

• alignment of the registered Food Safety Programme (deemed Food Control Plan) with the relevant requirements of the new regime.

Food businesses with a Food Safety Programme will have the opportunity to align it with, or adopt, an off the-peg Food Control Plan when this is issued for their sector or when a custom-made Food Control Plan is to be registered. They can therefore make use of the supporting communications and education in place for their sector at that time. The transitional arrangements will ultimately include a final transition date for all Food Safety Programmes to be converted to Food Control Plans towards the end of the transition period.

If food businesses with deemed Food Control Plans (presently Food Safety Programmes) operate in a sector that is identified for a National Programme, then from the time the National Programme is implemented those food businesses will be required to either:

• operate under the National Programme; or

• retain and comply with their deemed Food Control Plan until required to align it with the relevant requirements of the new regime.

In addition, such businesses may choose to register a custom-made Food Control Plan at any time during the transition period (which would need to meet the requirements of the relevant National Programme).

Whether there is a suitable off-the-peg Food Control Plan or not, these businesses will have the option to apply for registration of a custom-made Food Control Plan at any time during the transition period. If such an application is in advance of the transition time period for their sector, the regulator would do its best to accommodate this, but will need to give priority to the scheduled mandatory Food Control Plan registrations.

NZFSA may review a deemed Food Control Plan (presently a Food Safety Programme) where there is reason to believe that food safety and suitability is not being adequately managed. While NZFSA would encourage the food business to remedy the issues identified, NZFSA may ultimately determine that the deemed Food Control Plan needs to be cancelled or revoked. If so, should that food business wish to continue to trade, it would need to register a Food Control Plan and/or operate under a National Programme under the new Food Act, or potentially register a risk management tool mentioned in section 4.3 and 5.4.

5.4 What about existing Risk Management Programmes, Regulated Control Schemes and Wine Standards Management Plans?

A list of those mostly exempt from the effects of the transition policy because of the application of other legislation is given in Appendix 2.

Risk Management Programmes registered under the Animal Products Act 1999, Regulated Control Schemes, or the direct application of specifications under the Animal Products Act, and Wine Standards Management Plans soon to be registered under the Wine Act 2003, will remain in force under those Acts. For clarity, food businesses are reminded that coverage by the Animal Products Act or the Wine Act does not negate the application of the Joint Food Standards Code or the New Zealand standards already in place or to be made under the proposed Food Act as the case may be.

A food business with a Risk Management Programme or Regulated Control Scheme (Animal Products Act) or a Wine Standards Management Plan (Wine Act) may also have other activities covered by the proposed Food Act. Some of those food businesses with activities not covered by their existing registration will be required to adopt and register a Food Control Plan and/or comply with a National Programme during the transition period, for those other activities.

Rationalising legal and administrative systems and processes is a key objective of NZFSA in dealing with the requirements of food legislation. Any changes to these regimes will be fully consulted on with the stakeholders involved.

Food businesses with Risk Management Programmes, Regulated Control Schemes and Wine Standards Management Plans will remain in the existing food regulatory register in which they are recorded.

5.5 Food Handler Guidance

Territorial Authorities are responsible for the delivery of guidance to activities/businesses covered by Food Handler Guidance. Food activities/businesses that meet criteria specified in Appendix 3 do not need to operate under a Food Control Plan or a National Programme. Details for determining who Food Handler Guidance is to apply to is also given in Appendix 3. The criteria for determining whether Food Handler Guidance applies to a food activity/business and some guidance material will be publicly available before the start of the transition period. The availability of Food Handler Guidance specific to certain activities will not be a transitional matter, rather it will occur progressively following commencement of the proposed Food Act. General guidance on food safety and suitability will be available from Territorial Authorities from commencement of the new Food Act.

Food Handler Guidance will cover good operating practices and other information concerning the production of safe and suitable food. Territorial Authorities may require food businesses subject to Food Handler Guidance to have an operating permit to ensure that they are eligible for, and get, such guidance.

There are two routes by which eligibility for Food Handler Guidance may be determined:

1. NZFSA determines qualifying activities

NZFSA identifies whether it is appropriate for a class or description of food businesses to operate using Food Handler Guidance. The criteria that NZFSA uses to assess this are:

• the food safety risks posed in the sector;

• sector implications in confirmed cases of foodborne illness

• sector implications in confirmed food safety and suitability complaints

• customer sphere of impact

• other factors that govern whether the operation needs regulation (such as competition/equity)

• the feasibility and practicality of controls.

For example, NZFSA has currently identified that Food Handler Guidance will be appropriate for bed and breakfast operations and home stays (with accommodation for less than 10 persons).

2. Territorial Authority determines

The proposed Food Act will provide for Territorial Authorities to make case-by-case decisions regarding the application of Food Handler Guidance. If an operator approaches a Territorial Authority to sell food using Food Handler Guidance, the Territorial Authority will do one of two things. It will either identify that they are in a sector determined by NZFSA as appropriate for Food Handler Guidance or, if not in one of those sectors, use criteria such as following to determine whether they may operate using Food Handler Guidance:

• the operator has a small sphere of impact because it serves or sells food to a comparatively small number of people

• the frequency is minimal – no more than 10 times per year

• the food risks are at the lower end of the risk scale

• is involved with community and/or fundraising activities (eg, charitable organisations).

5.6 Interim measures for evaluation, verification, education and training

All provisions associated with roles and responsibilities for each sector, such as evaluation and verification, will be scheduled to be in place in time to meet the sector registration periods.

5.7 Compliance, enforcement and operational response

New compliance and enforcement tools, penalties, monitoring and surveillance systems, operational response⁴, and recall procedures, will be empowered and applied from their legislative commencement date. Compliance and enforcement tools may be refined and clarified during the transition period. It is intended that the related information and dates will be widely published, including on the websites of NZFSA and Territorial Authorities.

⁴ Operational response relates to emergencies and cases of foodborne illnesses.