Many of you will be aware of the Food Bill that is due to be passed through Parliament shortly after the summer holidays. This Bill directly effects Ooooby and its members.

'In a nutshell, if the new Food Bill is passed then 'unexempted' trading of homegrown food could be treated as a criminal offence attracting fines of up to $100,000 and 5 years imprisonment.  That means, if a person or corporation has motivation to prevent you from sharing food between neighbours and friends, they could use this law (along with a well argued accusation and fistfuls of money), to send in privately contracted indemnified Food Safety Officers' to search and stop operations at your premises without a warrant and also to gain a warrant to search your private home.  They may use any force that is 'reasonable' to find and confiscate any potentially incriminating evidence.  This proposed Food Bill is highly discouraging for cottage food.

It also means that there will be registration and compliance costs (money and time) that could make small-scale cottage food operations unviable.

Ooooby submits that an automatic exemption should be granted to all cottage food operations with annual sales under $60,000.' - Pete


Below are three independent interpretations of the Food Bill.  They are a longish read (nowhere near as long as the actual Food Bill itself) and they highlight the main points of concern.

These interpretations are not Ooooby's nor can we validate that they are entirely correct.  Use your own discretion.

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The Food Bill and how it could affect small-scale and hobby food traders

By Johanna Knox

A lot of people are worried about the Food Bill that's on its journey through parliament at the moment. The Food Bill is a proposal for a new set of laws (The Food Act) that would replace NZ’s current 1981 Food Act.

 

The Bill is here: 

http://www.legislation.govt.nz/bill/government/2010/0160/latest/DLM... 

 

There are many issues being raised by different people, but I have a particular personal concern with the Bill's impact on very small-scale, interpersonal food trades. So I've spent my time reading the Bill in order to try to understand and summarise only this aspect of it.

 

I've come to the conclusion that the bill could potentially make life more difficult for numerous people and groups if passed into law as it stands. In my own life:

 

- My mother in law who was thinking of selling her incredible backyard surfeit of figs wholesale to a local fresh market  (who would then retail it).

 

- The people I buy cultures (yoghurt,  sourdough, kefir etc.) from for a few dollars, when my own die of neglect.

 

- The people at a local vege swap whose presence I always appreciate because I swap my fruit with them for honey, jam or chutney.

 

- The people on green dollars schemes  who I have bought home-baked loaves of bread from.

 

And many more.

 

SO - starting from the beginning to give some background ...

 

What are some general differences between the current Act and the new Bill?

 

First of all – the new Bill is nearly four times as long and detailed!

 

Under the 1981 Act, local authorities have more responsibility for food safety in their area, with different areas of NZ having different by-laws. The new Act creates one law for the whole country, and gives central Govt greater responsibility for making and enforcing all food safety regulations.

 

ALSO

 

Under the 1981 Act, many food safety regulations relate to the premises from which food sellers operate. These premises are generally required to be licensed. The new bill shifts emphasis from ensuring food businesses operate from premises that are licensed as safe, to ensuring their entire operation runs according to a regulated plan. It’s about what they do in its entirety rather than where they are.

 

ONE OTHER THING …

 

Designated ‘Food Safety Officers’ have greater powers to enforce the law. (For example while they cannot search private homes under the 1981 Act, under the new Food Bill they would be able to.)

 

 

What will be the overall effect of these general changes?

 

I’m interested to hear from people about how they think these general changes may affect them, in terms of their small scale trades. Which would be harder on you - local council regulation, or central govt regulation?

 

For example, there have been at least two cases in the media in recent years where local councils have come down very hard on community groups and individuals with regard to food safety regulations. (In fact, many of us have probably been subject to a local authority’s ‘bureaucracy gone mad’ approach in one way or another .)

 

On the other hand, I believe those issues have been resolved satisfactorily with the councils now, and lobbying for fairness and lenience at a local level can sometimes be easier than lobbying against central Govt, especially when it is a local community-based issue. ALSO some of us may be lucky enough to live in an area where a council supports the kinds of food-related activities we are involved in, from the outset.

 

Anyway, getting down to the details ...

 

 

An overview of the proposed new system under the Bill

 

Under the new Food Bill there are three tiers of regulation. In any undertaking where you sell or barter food, (as far as I can see - even on the tiniest scale) you will be subject to one of three regimes depending on the perceived risk of your undertaking:

 

- A Food Safety Plan

- A National Safety Plan

- Food Handler Guidance

 

Under a Food Safety Plan, you have to submit your own food safety plan for approval,presumably with a fee, and if it is approved you will be registered and then checked up on over time.

 

Under a National Safety Plan, you have to apply to be registered (again presumably with a fee) and then follow the guidelines in a previously written set plan that covers many businesses in your particular food sector.

 

Food Handler Guidance is the third and least onerous of these regimes. Under Food Handler Guidance you do not have to register any kind of a plan. You will just be targeted with safety advice in some way (pamphlets? brochures? I'm not sure) and expected to comply with basic, general food safety regulations. There should be no compliance costs.

 

Several types of undertaking fall under this third, least onerous, Food Handler Guidance category (See Schedule 3 of the Bill in particular). Here are three of them:

 

- People fundraising for a specific purpose for an individual or group (e.g. sausage sizzles for a sports team’s trip), and not selling more than 20 times a year. (See section 94A)

 

- People selling/bartering food for a ‘charitable purpose’  and either not selling more than 20 times a year, OR operating from a premises where what you are doing is not the main activity. (See Section 94.)

 

AND

 

-   Individuals selling their own garden produce directly to consumers (See Schedule 3).

 

ALSO - the Bill says some people/businesses who might be covered by the other two regimes where they need to register a plan, can apply for an exemption from registration - OR be exempted on the initiative of the Chief Executive of the Ministry. Once they are exempted, they would be subject only to Food Handler Guidance.

 

(Note - the law is clear that granting those latter exemptions is entirely at the discretion of the chief executive, who can also revoke them at any time. And it's not known yet how hard it would be to get an exemption for your undertaking, and what it would involve.)

 

 

So where does that leave community vege swaps, etc.?

 

One of the things that all this means is that people doing the traditional community surplus vege swap are exempted from having to be registered, as long as

  • they trade only horticultural produce
  • they trade only their own stuff
  • they trade only direct to the consumer (not wholesale to a retailer)

OR they apply for and gain an exemption.

 

If they are not meeting all those requirements, and do not gain an exemption, then as far as I can see, under this new legislation as it stands they would NOT be complying with the law. So in theory …

 

* People swapping or selling honey, surplus pickles, jams,  preserves, cultures, baking, charcuterie etc. would have to gain an exemption or be registered. (Update re eggs: I've just been told eggs come under a different piece of legislation - more detail soon.)

 

* People who sell a little surplus fresh garden produce wholesale to a local shop to retail would have to gain an exemption or be registered.

 

The Minister and NZFSA have made comments to the effect that the Bill's intention is not to prevent the exchanges of food within communities that have always gone on. And yet I cannot reconcile the actual wording of the Bill with that. Whatever the intention of the Bill,  it contains nothing I can see that says the two groups of people in the list just above don’t have to be registered or apply for/gain an exemption. In fact it says they DO.

 

(And remember that  exemptions and their continuation or revocation are always at the discretion of the chief executive.)

 

A note (at the risk of being repetitive): I think there may be an issue of 'weasel words' creeping into some of the public discourse on this ... 'food' and 'produce'  should not be spoken of or read as interchangeable. They're not. 

 

It's clear in the Bill that direct trades of home-grown fresh PRODUCE within communities ARE exempted from needing registration. That's good. But it's NOT clear that other home-made FOOD is. (So anything that is more processed than basic fresh horticultural produce is not automatically exempted from the need to register.)

 

 

Where does the bill say very small-scale and hobby-based trades are covered?

 

Section 9 of the Food Bill defines a food business as Business, activity, or undertaking that trades in food (whether in whole or in part)  …

 

(So, 'businesses' in the Act are not just what we would normally define as a business – they are any activity or undertaking.)

 

Section 12 defines sale as selling food for processing and handling or for human consumption; and includes

    • (i) reselling food for processing and handling or for human consumption; and

    • (ii) offering food or attempting to sell food, or receiving or having food in possession for sale, or exposing food for sale, or sending or delivering food for sale, or causing or permitting food to be sold, offered, or exposed for sale; and

    • (iii) bartering food; and

    • (iv) selling, or offering to sell, any thing of which any food forms a part; and

    • (v) supplying food, together with any accommodation, service, or entertainment, as part of an inclusive charge; and

    • (vi) supplying food in exchange for payment or in relation to which payment is to be made in a shop, hotel, restaurant, at a stall, in or on a craft or vehicle, or any other place; and

    • (vii) for the purpose of advertisement or to promote any trade or business, offering food as a prize or reward to the public, whether on payment of money or not, or giving away food; and

    • (viii) exporting food; and

    • (ix) every other method of disposition of food for valuable consideration.

 

There is no mention of the scale of activity, so in theory the law covers these activities at any scale.

 

 

The bartering issue

 

Just to clarify, both the current 1981 Act and the new Bill see bartering as the same as selling. (Tax law generally does too.)

 

I personally feel that the bartering vs selling issue is a red herring. I think the scale of trades covered by the Food Bill is a bigger issue than the form those trades take.

 

I am worried about the degree to which the Bill interferes in and appears to regulate very small-scale trading – whether it is bartering OR selling for money (including NZ$ and other community currencies.)

 

Much of the very small-scale food trading that takes place within communities is not taxed, as tax law sees it as ’hobby’ rather than ‘business’. (See http://mcleanandco.co.nz/Page115.htm for a very clear description of how non-taxable income from a hobby is defined. ) 

 

However, as you can see, many of those hobby-based transactions that go on in the food world are certainly seen as ‘food businesses’ that are needing regulation under the Food Bill.

 

 

Where is the bill at, right now?

The Bill passed its first reading in July 2010. Since then a number of amendments have been made, and according to two MPs and the NZFSA website it is set to go to its second reading possibly quite soon after the general election, although no firm date is set down for this yet.

 

 

What amendments have been made so far, and which are pending?

 

There are a number, but these are the ones that interest me most, given my scope of interest:

 

Previously in the Bill – farmers markets and other organisations, groups or individuals that simply offered a premises for the sale of food were covered by the Bill. One of several worries with this was that a whole market could be shut down or penalised for hosting a food seller that didn’t comply with regulations. An amendment now makes it clear that the Bill doesn’t cover these organisations.

 

Trade in seeds is covered in the Bill – bringing up many troubling issues. The Minister Kate Wilkinson has promised repeatedly and publicly that amendments will be made to the Bill to clarify that the Act will NOT cover seeds. As yet, those changes have not been made in any version of the Act that I can find. It’s important that people remain aware of this issue and check that the bill does not pass its second reading without it being explicit that seeds for storing, saving, planting, growing, etc. are not covered by its regulations.

 

Green MP Sue Kedgley has asked that it be made explicit in the Act that several types of small-scale transactions have blanket exemptions. So far this request seems to have been rejected. (See http://www.stuff.co.nz/national/politics/5767084/Political-stoush-o... - although it has a slightly tabloid take on it all.)

 

 

Inconsistencies in the Bill and why small traders should be given automatic exemptions (IMO)

 

* The Bill claims to regulate activities on a risk basis. These risk calculations presumably include frequency and volume of sales. (The more that's sold, the higher the risk to the public.)

 

I have no way of knowing this for sure, but I don't think there would be more home-made food items (jams, baking etc.) traded on a small hobby-based scale for the trader's personal gain than there are items like this traded to fundraise. Fundraising is huge across the country.

 

And yet the hobby traders need registration or to apply for an exemption, while in many cases the fundraisers don't.

 

* While NZ law has for a long time seen raw milk as a high-risk food, it has enabled, and looks set to enable (see below) raw milk sales from 'the farm gate' on a small scale and  on a 'buyer beware basis'. In the new discussion document for changes to raw milk sales legislation, it acknowledges that farm gate sales allow the buyer to assess the farms' hygiene and processes and make a more informed decision about their comfort with buying from this producer. 

 

Surely buying a bit of jam, baking, cheese etc., from someone who operates at home, could be done on the same 'buyer beware' basis? Why is it different in the eyes of the law?

 

* Tax law makes a fairly clear case for exemption of hobby traders - why can't food law also?

 

 

What happens next?

 

I personally think pressure needs to stay on the Government and the Minister of Food Safety to give blanket exemptions to several categories of small food trader. 

 

The Bill still has a way to go before it is passed into law, and there are a few more stages I believe where these explicit changes could be made. But they certainly  might not be made, if there is no pressure on them to do so.

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The most important thing you can do this week, before Christmas.

By Valera K.

Hello Everyone,

 

I don’t usually forward petitions or e-mails concerning legislation, but this one made me very upset.

 

Legislation is being pushed through parliament during the holiday break which restricts our basic right to freely trade, barter or even serve the food we grow in our backyard.

 

The legislation allows for “Food Safety Officers” who are:

- not employed by the Government.

- can enter and search people’s premises without a search warrant.

- have exemption from civil and criminal law.

 

The proposed bill is posted on the Government web site and I’ve looked through it myself. Sadly this is for real:

 

Anyone who trades or sells any quantity of food (ex: sells a jar of homemade jam at a craft market, or exchanges an avocado for an orange with a neighbour) will be considered a “food business”. Serving food is also covered. See 9, 10, 12:

http://www.legislation.govt.nz/bill/government/2010/0160/latest/who...

 

Food safety officer does not have to be a person employed by the State sector:

http://www.legislation.govt.nz/bill/government/2010/0160/latest/who...

 

Food safety officer may enter without a search warrant:

http://www.legislation.govt.nz/bill/government/2010/0160/latest/who...

 

And seize or dispose of food that does not comply with requirements of the Act, or even “exclude a particular person from all or part of a place” (see 270, 272):

http://www.legislation.govt.nz/bill/government/2010/0160/latest/who...

 

On top of this, actions of Food Safety Officers are above civil and criminal law:

http://www.legislation.govt.nz/bill/government/2010/0160/latest/who...

 

Essentially NZ Food Bill allows our basic human rights to be violated under the guise of protecting us from “bad food”. And we may be forced to only buy commercial food, which will be more tightly controlled by the large corporations.

 

The bill does have some good aspects, such as increasing quality standards for mass produced food. However it should not apply to backyard and small scale growers, and it should not allow anyone the power to search our property without a search warrant or be exempt from civil and criminal law.

 

I encourage you to read the forwarded message below which explains the situation in more detail, and sign the online petition:

http://www.petitiononline.co.nz/petition/oppose-the-new-zealand-gov...


Also please let anyone who cares to know urgently and contact your local elected politicians about this. We may only have few weeks to stop this nonsense.

 

You can contact your local MP via e-mail here:

http://www.parliament.nz/en-NZ/MPP/MPs/MPs/

 

Feel free to modify or forward my e-mail.

 

Valera.

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The Food Bill

By Urban Pantry

Requiring home gardeners to be registered? Making it illegal to trade vegetables and seeds? There’s a high level of concern and conjecture about the new Food Bill. What’s real and what’s exaggerated? Our founder Emily, an ex-lawyer, investigates.

What does the Food Bill cover?

The main purpose of the Food Bill is to make sure that food sold in New Zealand is safe and suitable for consumption. Any person who trades in food has a duty to ensure it is “safe and suitable”. Trading in food includes producing (growing) and processing food for sale, as well as actually selling it. In the Food Bill, “sale” also includes bartering and any other form of exchanging food for valuable consideration. So, if you’re going to grow food to sell or barter, you have a duty to make sure it’s safe and suitable, which basically means it’s unlikely to cause illness. And if you’re growing food purely for your own household’s consumption, the Food Bill doesn’t apply.

So what does the Food Bill mean for small scale, local food trading?

Trading home-grown produce with your neighbours

The Bill prescribes additional duties and requirements for “food businesses”, which are “a business, activity or undertaking that trades in food” (remember trading includes growing and processing for sale, as well as actually selling). “Food businesses” have to comply with certain requirements set out in the Bill, which are different for different types of food businesses. There has been concern that individuals who grow food on a small scale then trade their excess with neighbours could fall within the definition of a “food business” and that local food trading between unregistered food growers will become illegal. Thankfully, the New Zealand Food Safety Authority has made it clear that the Bill’s requirements are not intended to apply to backyard food growing and neighbourhood food swapping.

Selling food you’ve grown or made

If you’re growing or making food (e.g. jam, chutney) to sell it, you could be considered a “food business” under the Food Bill. The implications of that depend on how you sell the food. If you’re going to sell the food direct to consumers, for example from a table at your front gate or a stall at your local farmers market, you’re in the lowest risk category of food businesses under the Food Bill, and you’re just subject to “food handler guidance”. What that means is that guidance on safe food handling will be made available to you, but it doesn’t impose any legal duty on you.

Things get more complicated when there’s a third party involved. Say you want to sell your food to a local café, or to someone like Ooooby, who then onsells your food to consumers, you fall into a different categorisation under the Food Bill. This categorisation means you are subject to a whole lot more  paperwork than someone who sells direct to consumers. You’ll have to apply to register, meet all the requirements set out in a “National Programme”, and have your compliance verified by an external verifier.

Trading seeds and seedlings

The definition of “food” in the Food Bill is so wide that it technically includes most seeds and seedlings, as they are “capable of being used for human consumption”. A lot of people were pretty concerned about this, and when it was brought to the attention of the Minister for Food Safety, she requested that the definition by amended to make it clear that seeds for cultivation and food plant seedlings are not covered by the Food Bill.

Exemptions for small-scale food businesses

The Food Bill provides for exemptions for small-scale food businesses. The Bill gives as an example of someone who might qualify for an exemption, a person who produces in their own home food for sale, sells it directly to the consumer, and doesn’t employ any other person to assist in the sale or production of the food. You would have to apply to the chief executive of the Ministry of Agriculture and Fisheries for an exemption.

Don’t like the implications? What can you do about it?

The Bill has already passed Select Committee stage, when public submissions are heard, so if you want to have your say now you’ll have to go direct to the lawmakers. You could email Kate Wilkinson, the Minister for Food Safety: kate.wilkinson@national.org.nz. Or get in touch with the Food Safety spokespeople from other parties and ask them to take your concerns to the Minister (Labour – Ashraf Choudary ashraf.choudhary@parliament.govt.nz, Green – Sue Kedgleysue.kedgley@parliament.govt.nz).

We’ll keep tabs on the progress of the Food Bill and let you know about any developments or other opportunities to have your say.

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So there you have it folks.   If you have any ideas on how we can best respond to this Bill, please let us all know in the comments below.

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Comment by Johanna Knox on December 22, 2011 at 9:18pm

Andy, I'm keen to pick up on a few things in your article -

You wrote 'It is always a dangerous thing to allow bad law, even bad law on the assumption it will never be enforced, because once it is in place, it can be acted on. ' 

Yes! I so agree, and well put. 

I'm also interested in further discussing the definition of 'personal development purpose' in section 94A. Unfortunately I don't think we can assume that the definition is as broad as it first sounds. 

In the Commentary attached to the most recent redraft of the Bill, it says, 'We recommend inserting new clause 94A to provide for exemption from operating under a food control plan or national programme in circumstances where food is sold for a specified fund-raising purpose which would fall outside the scope of clause 94. The purpose must be to provide financial support required by the person selling the food, or a named other person (or group of persons), to achieve a specific purpose or goal. The trade in food would be on a non-commercial scale and on an infrequent basis, that is, no more than 20 times in one calendar year. The person or group would still be required to operate under any food handler guidance that applied to the trade in food concerned.'

It seems quite clear in black and white there that 'personal development purpose' relates to fundraising for a specific gaol (although I agree with you that in Section 94A itself it sounds a bit vaguer! )

I queried the minister's office on this, running past them a definition of 'personal development purpose' that was very similar to yours, and I got a very definite-sounding reply that 94A was about fundraising for specific one-off purposes - sausage sizzles for a school sports group trip, etc. (I've quoted the reply I got from them below in another comment I made earlier here.)

I also wanted to pick up on the issue you brought up about honesty boxes outside gates.

Just to clarify - if a person has an honesty box outside their house and are selling their own home-grown fresh, minimally processed fruit and veges, even for their own personal gain, they are exempted, and can sell as often as they like. (See Schedule 3 of the Bill.) As far as I can see, they are not required to submit to the less-than-20-times rule that applies to people selling any kind of home-made food (not just fresh produce) for charitable and personal development purposes.

If you think I've misinterpreted any of this, please say. And I am very open to discussing definitions and interpretations right down to the minutest level!

I know I'm sounding pedantic. It's just that with this Bill the devil really is in the detail.

Comment by Johanna Knox on December 22, 2011 at 8:47pm

Good to see the Mana Party stance, Kali.

Comment by Andy Kenworthy on December 22, 2011 at 1:15pm

My full assessment, for what it's worth is here: http://andykenworthy.com/?p=622 this was originally published in Good magazine. cheers. 

Comment by Andy Kenworthy on December 22, 2011 at 1:13pm

In my assessment the line: "if the new Food Bill is passed then 'unexempted' trading of homegrown food could be a criminal offence" is a bit of an oversimplification and is scaremongering, albeit for a just cause. From my reading there is nothing in the bill (unless it has changed in the last few weeks) that suggests that. At the very worst,in the very unlikely even that such a move was actually enforced, unexempted homegrown food trading would become subject to the regulations in the Bill, on taxation safety etc, which is not the same as saying it would become a criminal offence. But noise on the Bill is healthy and welcome, so that they know we are watching and make sure to iron out any stupid kinks left in it before it become law. 

Comment by Kali on December 22, 2011 at 1:05pm
Comment by Ricardo Oscar Marques on December 22, 2011 at 10:03am

Great debate. I think this can be an awesome bill or could be disastrous, if a decision came out of this debate, I will support what comes out of oooby people.

Comment by Johanna Knox on December 22, 2011 at 8:46am

Yeah, I think, as you guys are saying, the time to start writing letters is now. And that's a great idea to alert groups who may not realise exactly where things stand.

Regarding section 94 and 94a - do we know that these would cover Oooby? Has a lawyer looked at its structure and purpose to see if its activities would be considered to be selling for a 'charitable purpose'? I suspect they wouldn't be, as the tangible gain is for the individual growers ... but it would be good to get some clarity on that.

This was what I had from the minister's office on that:

The Food Bill has specific exemptions from the requirement to operate under a food control plan or national programme for certain activities.  These exemptions are for persons who are:

  • trading in food that is for a charitable purposes (section 94); or
  • trading in food that is for personal development purposes (e.g. school or sports group fund raising for trips & activities) (section 94A).
And they further emphasised that 'personal development' in section 94 A has this meaning: 'Section 94a is focused only on 'specified' fundraising activities (as in it's clear that the money raised is going towards something specific, like a new school pool or sports trip - something tangible). It is not relevant to anyone who is selling goods for personal gain. ' 
(That last comment from them was in response to my suggesting to them that 'personal development' sounded very broad.)
Comment by Jacinta O'Reilly on December 22, 2011 at 8:21am

Well, it's lovely to see the thoughtful debate blossoming! Pbee, I hope your confidence in this site is restored! An important pressure seems to be to ensure that food seeds and plants for growing on are exempted, and surely some of the commercial plant producers could weigh in here. Also seed saving groups. Contacting MPs seems to be the most sensible step at this point, although it might be useful to alert seed and plant groups, if they haven't realised they have not been officialy exempted yet. Section 94a or 94 might apply to oooby- is one box one event, or is each distribution one event?

If they are distributed less than 20 times a year, that matters. Oooby could request the number be raised to make it 26- that would be fortnightly.

Comment by Johanna Knox on December 22, 2011 at 8:02am

Thanks for that Jacinta - I for one hadn't yet seen Mojo Mathers' post on this. Thanks for the link.

Earl, I agree with you on numerous points - and perhaps Oooby, although it doesn't operate as a retailer exactly, still occupies an interestingly ambiguous position (in terms of the Bill) as an intermediary.

I was told by someone at the Minister's office that it would not require an exemption for people to have friends and associates sell their fruit and veges on their behalf at community markets, as long as the people doing the selling took no percentage of the profits themselves (thus becoming a retailer).

However a) I'm not quite sure if it's that simple with Oooby and b) Later conversations with the same folks in the MInisters office revealed that they hadn't read the Bill themselves and were only replying to me based on hearsay anyway.

If I get time I might go through the bits about retail and intermediaries again and look at them more closely. Would be interested to hear anyone else's interpretation of them.

Comment by Kali on December 22, 2011 at 1:16am

Damien O'Connor has been given the role of labour food safety person. not a long time for him to get up to speed on it, but as I understand it they all  were for it, even the greens until people alerted them to the fineprint between the lines  so to speak

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