08 Sep 2009
Food for thought: recent changes to Victorian food regulation are good news for business
by Sara Dennis, Andrew Morrison
Victoria's food laws have been amended, affecting the classification and regulation of food premises.
The Food Amendment (Regulation Reform) Act 2009, which will amend the Food Act 1984 (Vic), received Royal Assent on 5 August 2009.
The key amendments, which relate to the classification and regulation of food premises, will come into effect on 1 July 2010 but other amendments will not come into effect until early or mid 2011. Therefore, the business community has ample time to prepare for, and familiarise themselves with, the changes. Having said that, given that the regulatory requirements have been relaxed for food businesses who are engaged in lower risk activities, if a food business complies with the current regulatory regime, it is likely to comply with the amended regime.
According to the Victorian Treasurer, John Lenders, "Businesses along the food supply chain from farmers to café owners will also see savings of more than $20 million each year as a result of the cuts to red tape." In reality, lower risk food businesses will benefit from the cost savings to be a greater degree than high and medium risk food businesses.
The Amendment Act has three main objectives:
To achieve greater consistency and accountability in the governance of the food regulatory system by articulating the respective roles and responsibilities of the different regulators; to enshrine a statutory role for the Department of Human Services (DHS) of providing guidance and leadership to the 79 councils regarding the regulation of food businesses which will ensure that the councils' approach to regulation is consistent; and to mandate the collection and publication of data relating to the regulation of food businesses.
To better target regulatory requirements to the level of food safety risk. This will result in the reduction of compliance costs for low-risk food businesses and community groups which sell food.
To facilitate enforcement of the Act by providing more flexible regulatory mechanisms.
Food businesses engaged in lower risk activities will be most interested in the changes discussed at the end of this article which relate to the clearly defined roles of local councils and councils' new enforcement tools.
Classification of food businesses: a major imperative
Currently, food premises fall into two broad categories and are regulated accordingly: high risk premises (those which handle and supply high risk "ready to eat" food predominantly for vulnerable population groups) and medium risk premises (which include all other food premises).
Most food premises (except for "low risk" businesses and some "medium risk" businesses) must have a food safety program, which details how the business will ensure that the food they sell is safe, and a nominated food safety supervisor, who must have the skills and authority to supervise other staff who handle food and to ensure that handling is done safely, who must know how to recognise, prevent and alleviate hazards associated with the handling of food and who must have met an appropriate food safety competency standard.
The Act empowers the Secretary of the DHS to declare classes of food premises via the Government Gazette. The following table summarises the elements expected to be associated with the four new classes of food businesses:
Which businesses fall into the class?
Need Council regis-tration?
Food safety program required?
Food safety supervisor required?
Other elements of the amended regime
High risk activities
Eg. nursing homes, hospitals
Yes but have more options re type of Programs that they can use. Eg. they can use a "quality assurance food safety program" which is one which has been certified by an approved food safety auditor, developed under such a QA system or code and meets the relevant requirements of the Act (Using this option will reduce costs.)
Yes but there is a following additional means of compliance with this requirement.
Premises are required to undergo two compliance checks each year - at least one of these will be conducted by the council:
Council inspection prior to an initial registration or transfer or registration to a new proprietor will be required to ensure that the premises are fit to operate. Annual council inspection thereafter at renewal of registration will NOT be necessary.
Medium risk activities
For manufacturers, restaurants and cafes handling unpackaged, potentially hazardous foods which need temperature control.
Yes but there is increased choice of Programs (see Class 1 above).
Yes - but there is an following additional means of compliance with this requirement.
For businesses with template Program: audits not required but at least one annual council assessment.
For businesses with a non-standard Program: premises to be audited at least annually by a DHS approved Food Safety Auditor.
Inspection by the council prior to initial registration and transfer of registration to new owner required to ensure premises are fit to operate. Annual inspection by the council no longer mandatory but council has discretion to inspect.
Lower risk activities
Eg. most community groups events involving cooking and serving ready-to-eat potentially hazardous foods (if that food is sold for immediate consumption).
Minimum record keeping requirements re food handling practices will need to be met. DHS will prepare guidance material to assist with compliance.
Inspected by the council when initially registered and annually thereafter.
Very low risk activities
Eg. not for profit fundraising activities such as community sausage sizzles where the food is cooked and served immediately or cake/biscuit stalls; kindergartens where basic food such as cut fruit is served.
No - instead , they need to notify the council of the food handling activities.
Councils retain the discretion to inspect the premises but are not required to annually.
Roles of local councils and the DHS clearly defined
Currently, the DHS has no statutory authority to set state-wide policies and guidelines which means that businesses and community groups which operate in a number of areas often experience inconsistencies in the administration of the Act. Under the Amendment Act, national, state and local governments will continue to share the responsibility for food safety but the respective roles of the DHS and local governments have been clarified:
Councils must co-operate with each other and the DHS regarding the Act's administration and ensure that, to the extent appropriate, their administration of the Act is consistent with other councils' administration.
Local councils will be required to report data about their administration of the Act to the DHS which will promote greater accountability.
The DHS is specifically required to provide information and guidance to councils, authorised officers and food safety auditors and to publish an annual report on food regulation.
New enforcement tools for councils
In addition to providing that individuals and corporations could be fined (and, in the case of individuals, imprisoned) for certain contraventions of the Act , the Amendment Act empowers councils by increasing the number of options available to them when dealing with food businesses which flout the Act. For example:
councils will be able to issue infringement notices for certain offences under the Act;
the Secretary will be entitled to receive written undertakings from businesses regarding contraventions which will temporarily halt initiation of court proceedings; and
if a council is of the view that a food business is unclean, unsanitary or in a state of disrepair or that food there is unsafe or unsuitable, the council can order the business to rectify the situation. The council can also make an order that the business cannot operate as a food business until that time.
While not strictly an enforcement tool, businesses will also be interested to know that the DHS will keep a detailed register of all convictions made under the Act on its publicly available website.
ConclusionThe changes detailed in this article are aimed at protecting the health of all Victorians and, as enacted, should promote increased confidence in the food regulatory system while reducing the costs incurred by many food businesses. We would be happy to assist you if you require any assistance in interpreting or managing the new requirements associated with the different classes of food businesses or the new enforcement tools available to councils.