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Proposed Amendments to the Animal Products (Exemptions and Inclusions) Order Analysis of Submissions

Introduction

The New Zealand Food Safety Authority (NZFSA) published a public consultation document (Public Discussion Paper 12/04) on 30 November 2004, inviting submissions on proposed amendments to the Animal Products (Exemptions and Inclusions) Order 2000 (the Order). The closing date for receipt of submissions was 4 February 2005. This document provides a summary of the key concerns raised in submissions received and NZFSA response to these concerns.

The Animal Products Act 1999 (AP Act) requires all animal products traded and used to be “fit for purpose” and for the production and processing of certain animal materials and products to occur under one or more risk management programmes (RMPs). A RMP is a documented programme to identify and manage biological, chemical and physical hazards. It is the responsibility of each “person” (which can be an individual or business) covered by the AP Act to develop a RMP and to maintain it. Independent evaluation of the RMP is required prior to registration with the NZFSA and its operation must be verified on an ongoing basis. A RMP may be deemed unnecessary because the degree of risk associated with the relevant animal material, product, operations, or intended product use is negligible, or the fact that the animal material or operations concerned are covered by another legislative regime. The AP Act also provides safeguards for animal product exports, including registration of certain exporters. The Order enables exemptions of certain persons and operations from certain requirements of the AP Act. It also imposes requirements on certain persons who would not otherwise fall within the ambit of the AP Act.

Proposed new exemptions

The NZFSA has undertaken a review of the requirement under the AP Act for certain “persons” to implement and maintain a RMP. The outcome of the review was that in some cases this requirement is unnecessary based on the negligible risk involved in production. The discussion document proposed the following changes that would amend the Order and provide for new exemptions from the requirement to have a RMP, and modification of certain existing exemptions:

• to exempt muttonbird harvesters from the requirement to have a risk management programme;

• to exempt egg primary processors who sell eggs only by way of retail sale directly from the same place as the eggs are produced, from the requirement to have a risk management programme;

• to exempt tourist/charter fishing vessel operators and fishing guides from the requirement to be listed as homekill or recreational catch service providers under part 6 of the Act, and to exempt them from the requirement to have a risk management programme;

• to exempt persons processing only fish bait and/or fish berley (chum or ground bait) from the requirement to have a risk management programme;

• to exempt persons engaged in whitebait harvesting (and only such limited processing necessary to ensure direct delivery of the whitebait to a buyer/processor in good condition) from the requirement to have a risk management programme;

• to exempt airline holding facilities that provide only for the temporary protection of animal products consigned as air cargo during aircraft loading procedures and that are within airport confines and adjacent to the tarmac from the requirement to have a risk management programme;

• to repeal clause 6 (Exemption of secondary processors covered by the Animal Remedies Act 1967);

• to amend clause 15 (Exemption from exporter registration for owners of live animals exported for non-commercial reasons) to add that the exemption covers exemption from the duties under section 51(c)(i), and 51(d) of the Act; and

• to amend clause 16 (Exemption from exporter registration for persons exporting samples for scientific analysis) to add that the exemption covers exemption from the duties under section 51(c)(i), (iii) and 51(d) of the Act and to make it clear that the exemption applies to a laboratory or research facility exporting a consignment that is entirely scientific samples.

Inclusion - Commercial Exporters of Live Animals

The movement of animals and animal reproductive material is an internationally recognised animal health risk and registration of exporters is recognised as an appropriate mechanism to ensure that should live animals/animal reproductive material be exported and found to be diseased or defective, it is possible to quickly trace the source of the animal material exported. Because most of New Zealand’s export markets require official assurances the number of live animals/amount of animal reproductive material exported by unregistered exporters is considered to be small. The impact on New Zealand’s export markets would however be significant, if the New Zealand government were unable to locate the source of animal material found to be diseased or defective after export. Section 48 of the AP Act requires commercial exporters of live animals to be registered under the AP Act only where official assurances are required for the market to which they are exporting. A number of exporters of live animals are not registered under the AP Act as they export live animals/animal reproductive material to countries that do not require official assurances for the species of animal or type of animal material being exported.

The discussion document proposed to add a new ‘inclusion’ clause so that a person who, for reward or for purposes of trade, exports live animals, or semen, ova or embryos is required to be registered as an exporter under Part 5 of the Act.

Summary analysis

Fourteen submissions were received by the closing date for submissions, and a further two submissions were received after this date and taken into consideration in providing advice to the Minister. One submission concerned the proposal to exempt muttonbird harvesters from the requirement to have a RMP. The remaining submissions concerned the proposal to exempt egg primary processors with only “gate sales” from the requirement to have a RMP.

Muttonbird harvesters

The submission concerning proposed exemption of muttonbird harvesters from the requirement to have a RMP claimed that the risk to animal and human health of the proposed exemption of muttonbird harvesters from the requirement to have a RMP was small, and that the dedicated customer base for muttonbirds meant that the customer was able to judge by aroma and appearance whether the product was fit for purpose. The submission maintained that provisions in the Food (Safety) Regulations 2002 that relate specifically to muttonbirds provide sufficient other safeguards to minimise risks to human and animal health.

Egg primary processors

Fifteen of the 16 submissions received related to the proposal to exempt egg primary processors with only direct sale from their place of production from the requirement to have a RMP. The submissions relating to eggs were from consumers, a veterinarian/accredited evaluator of RMPs, egg producers, representative industry organisations and individuals.

There was support for the proposal from consumers and in some submissions which argued for an exemption for all free-range egg producers. Submissions opposed to the proposal to exempt egg “gate sales” expressed concerns about increased risk to health, traceback in the event of diseased eggs, market advantage for those not required to have a RMP, abuse of the exemption and effectiveness of the proposals given that most small egg producers sold some eggs off the premises where they were produced. A significant feature of the consultation was the number of submissions calling for an exemption for all free-range egg producers.

Health risk

Concern was expressed in a number of submissions that any exemption would pose a risk to human and animal health. One submission asked that the NZFSA explain the reasoning behind its assessment that the risk to human and animal health of the proposal would be negligible. A number of submissions suggested the smallest producers posed the greatest risk to health. It was claimed that this was because of lack of full-time professional care of the bird flock, poorer hygiene and environmental control, irregular sourcing and exposure of the birds to wild bird populations. It was argued that “backyard production” posed the greatest threat to food safety because the commercial market imperative under which the larger producers operated ensured proper hygiene and handling. Two submissions suggested that storage and date labelling of eggs should be subject to regulatory requirements and a further submission questioned the ability of customers to assess whether eggs were fit for consumption. A number of submissions argued that free-range egg production should be exempt from the requirement to have RMPs because it was claimed to be a safe method of production.

Under the AP Act the Minister may only recommend an exemption if she is of the view that the risk to human and animal health is negligible. The basis against which NZFSA assessed negligible risk to human and animal health was the number of eggs likely to be sold. The NZFSA does not accept the argument that exemption should be on the basis of production method. The NZFSA is aware of evidence that free-range production is both a less risky and a more risky method of operation than more intensive egg production methods.

Traceback

Concern was expressed that the exemption would result in lack of traceback in the event of disease outbreak. Although NZFSA does not propose to require registration of exempted egg producers, AgriQuality do have a database of all persons who own poultry, for the purposes of disease control.

Unfairness of regulation and potential for abuse

It was suggested that the proposal to exempt “gate sales” production would produce an “uneven playing field” and that all egg producers should be treated equally, and rules applied universally, to ensure customer confidence that all eggs meet a minimum standard. There was concern that the exemption would be abused and large numbers of eggs would be sold by producers sited along main roads and in urban areas. This is not what was intended by the proposal. After consideration of submissions the proposal was amended to limit the exemption to producers with flocks of 100 female birds (all species) or less with sales only direct to the consumer or end user.

There was clear evidence in submissions from consumers that the availability of eggs from very small local producers is highly valued. NZFSA considers the regulation of these very small producers unnecessary because the risk to human and animal health is negligible in terms of the number of eggs likely to be produced and sold. The exemption of these very small producers is unlikely to pose a significant market advantage given the likely revenue gained from what can be considered marginal production.

Off-site sales

A couple of submissions made the point that the effectiveness of the proposal to exempt “gate sales” would be limited because in practice most gate sale producers sold some eggs retail away from their place of production, for example at farmers’ markets or to by delivery to consumers’ homes.

After consideration of submissions the proposal was amended to allow eggs produced from flocks of 100 birds (all species) or less to be sold directly to consumers or end users away from the place of their production, enabling eggs to be delivered to consumers’ homes or sold at farmers’ markets. The exemption would not apply to any producer selling to intermediaries for on-sale, such as dairies or petrol stations. It is considered important that there is a direct link between the processor of exempted eggs and the customer.

Basis for limit of 100 female birds

The amended proposal was based on based on an evaluation of risk and not method of production. The number of 100 was arrived at by a calculation based on the average number of eggs likely to be produced. It is estimated that 100 birds produce approximately six to eight dozen eggs per day – given birds lay one egg per day for around 42 weeks per annum. Using an estimate of customers purchasing approximately one dozen eggs per week the potential number of households that could be affected should there be a problem would be around 40 for each flock of 100 birds. Higher limits were considered. For example at a limit of 200 birds 12-16 dozen eggs would likely be sold with around 80 potential affected households. It is considered that sales from more than 100 birds per day would result in risk that cannot be considered negligible in terms of impact, that is, the number of people potentially affected should eggs be contaminated.

It should be noted that all egg processors exempted from the requirement to have a RMP under the AP Act will still need to ensure that they comply with the Australia New Zealand Food Standards Code.