Key issues
The Food Act 2014 allows the MPI chief executive to approve persons and classes of persons, and such things as facilities, documents and materials, if these are required for particular purposes and activities under the Food Act.
Objectives
Approvals help to ensure that the facilities, documents and materials are appropriate, safe and suitable for their intended purpose, and that the persons providing services have the necessary competencies, training, qualifications and experience to do so. Regulations will establish criteria to govern all approvals, and promote clarity and consistency in the approval process.
Alternative approaches
The Food Act requires that, before making an approval, the MPI chief executive must take into account the criteria prescribed in regulations, if these exist.
Therefore, there is the option not to create this regulation. We are interested to know if you think that not having a regulation is a workable option.
6.1
What the Act says
6.1.1
Approvals
The Food Act empowers the MPI chief executive to approve certain documents, materials, facilities, persons or classes of persons, if the approval is a requirement of the Food Act. A “requirement” of the Food Act includes requirements for approvals that are contained in regulations or in notices.
6.1.2
Documents, materials, or facilities that may be approved under the
Food Act
The Food Act allows for the use of approved documents, materials or facilities and gives examples of the kinds of approvals that may be made by the MPI chief executive (section 291(3)) if required under the Food Act:
• compounds; • devices; • documents; • equipment; • identification systems; • laboratories;
• methodologies; • places; • sampling techniques; • security devices; • systems; and • techniques.
The Food Act itself does not directly require the use of any of these things. This means that requirements for approvals need to be set out in regulations or in notices under the Food Act. Note that the approval provisions in section 291 of the Food Act do not cover the approval of food control plans or the appointment of recognised agencies and persons. These processes are provided for separately under the Food Act.
6.1.3
Factors that must be considered before approvals are given under
section 291
Section 291 of the Food Act requires that, before approving a document, material, or facility, the MPI chief executive:
• must be satisfied that the document, material, or facility is appropriate, safe, and suitable for a purpose for which a requirement of the Food Act may require it to be used; and • must take into account the criteria prescribed in regulations made under section 386 if
there are any such regulations.
Similarly, before approving a person or class of persons, the MPI chief executive: • must be satisfied that the person or class of persons has the competencies, training,
qualifications, and experience that are suitable for a purpose for which a requirement of this Act may require the person or class of person to be used; and
• must take into account the criteria prescribed in regulations made under section 386, if there are any such regulations (see section 6.2.1).
The MPI chief executive may issue an approval subject to conditions. For example, the Food Act states that in the case of an approved laboratory, a condition may include reporting requirements relating to certain test results (including specified contaminants in food).
The MPI chief executive gives approval by issuing a notice (under section 405) which must state9:
• any conditions subject to which the approval is given; and • the date on which the approval ends.
An approval must end within three years from the date of approval (section 291(8)). Before an approval ends, the MPI chief executive may issue a new notice under section 405
approving the document, material, or facility or the persons or class of person for a period of up to three years.
The MPI chief executive may suspend or withdraw an approval by issuing a notice (under section 405).
9
Food Act 2014, s.291(10)
Approvals may be suspended or withdrawn under the same provisions as those relating to a food control plan or national programme.
6.2
Proposed regulations
6.2.1
Criteria governing all approvals
It is proposed that the following regulation about approved documents, materials or facilities or approved persons or classes of persons be made under section 386(1) of the Food Act: • to set out the criteria that the MPI chief executive must take into account before approving
documents, materials, facilities or persons or classes of person.
In 2005, as part of consultation on the Domestic Food Review, MPI (then the New Zealand Food Safety Authority) consulted on the proposed criteria to govern all approvals and the approval system. Most submitters considered it essential that the approvals process should be consistent and equitable across the food-related legislation administered by the Ministry. The following criteria were generally supported in submissions and are now proposed for incorporation into regulations under the Food Act.
Criterion 1: Improves credibility and confidence
The approval provides or improves the credibility and confidence in the food supply because the approval reflects one or more of the following:
• matters that relate directly to food safety and suitability; • standards that can more easily be met because of the approval;
• process checks (such as testing) that are more comparable, reliable and defensible; • improved clarity of the competence of persons performing critical activities; • industry standardisation that relates directly to food safety or suitability; • consistency with international standards; and
• fostering continuous improvement.
Criterion 2: Improves efficiency
The approval improves efficiency because:
• the relevant approval will be applied widely and/or consistently; and/or • standardisation will be increased.
Criterion 3: Improves clarity and transparency
The approval is clear and delivers transparency because it: • ensures system accountability, and/or• improves industry understanding.
What do you think?
53.Do you agree that it is necessary to set out criteria for approvals in a regulation? What are the reasons for your view?
54.If you agree that a regulation is necessary, do the three proposed criteria cover the areas that should be considered before an approval is made? Should anything else be included? If so, what and why?
55.Is there anything else that you think should only be used if it has been approved under the Food Act? What and why?
6.2.2
Limited range of approvals confirmed by notice
It is proposed that the MPI chief executive will issue a notice confirming a limited range of approvals from either 1 March 2016, or any earlier date established by an Order in Council.
The requirements for these approvals will be established in the following regulations: • laboratories – requirement established by regulations relating to imported foods.