How Much For Lunch at a Pre-school?

$4,000 each year for permission to serve kids food at a pre-school? So the Early ChildhoodCouncil says.

This is plausible and the inevitable consequence of the implementation of the Food Act 2014. But to understand how we got to this ludicrous situation you have to go back at least 35 years.

Let me start by saying that regulating food safety is important. There are some very nasty diseases that can be transmitted via food and some people will die from eating the wrong food. Even so, in public health terms, food safety regulation has been a bit of a latecomer. As a country we have implemented many different ways of minimising harm from food over the years. Some have fallen by the wayside some are still with us.

So, today, food safety is regulated through several pieces of legislation and we effectively have a two-tier system. High risk foods such as meats, seafood, dairy and eggs are regulated through specific legislation, mainly the Animal Products Act, administered by the Ministry for Primary Industries. Businesses operating nationally also often file a Food Safety Plan with MPI rather than deal piecemeal with 71 councils around the country. These acts aim to achieve food safety by requiring a safe process. Businesses have to have a food safety system – unique to them - based on the international system, Hazard Analysis and Critical Control Points. Not only is the system formal and in writing but also must be auditable meaning that records have to be kept of all relevant actions. Businesses regulated this way have to satisfy the regulators every year that they are operating safely both in thought and deed or they lose their business.

This is something of a gold standard but it makes sense for large businesses especially ones that operate internationally. Not only does compliance with international standards and best practice make it possible for our companies to trade internationally but there is an overall halo effect for the whole country around the quality of our food products.

What about the local cafe, pre-school or bakery? Everyone else is regulated by councils mainly under the older Health Act 1956. So councils basically get local operations such as cafes, bakeries, small food retailers, hotels etc. The Health Act regulations aim to achieve food safety by requiring safe premises in which food is prepared and served. Councils try their best to deny it but they have no role in approving food operations. They register and approve the buildings in which food operations take place. And they do have an enforcement role should they detect breaches of Food Hygiene Regulations 1974. But it is largely up to the operators themselves to decide how to operate safely and how to comply with relevant regulations. So the only way a small operator can be shut down is if their premises are in poor condition and the operators do nothing about it or the food they offer is demonstrably dangerous. 

Legally this is very light regulation compared to the top tier. But this framework is also cheap to run. I pay about $300 p.a. for my registration. By my calculations its about $150 too much for the statutory work the council has to carry out but why quibble at that level?So now we have the Food Act 2014 which requires all small operators to change to a bespoke, risk-based system too. Until now small operators have not been required to have a system or keep records of any kind. In future they will have the administrative burden of creating a system and operating it (ie ticking boxes and writing stuff down). We are transitioning to a single system for all food operations large and small. Nice but not only is there an administrative burden imposed on these small businesses, there is now more power in the hands of the local council (as approvers and auditors) over these business's livelihoods.

What problem will this solve? None at all. There is no evidence that we have a problem with food-borne illness emanating out of the small registered operators. Almost all notified cases of food illness in NZ happen in the home because of poor food hygiene practices and the vast bulk of those cases relate to poor storage, handling or cooking of poultry. The current system for commercial food operations, clunky though it is, works - and often because of controls that exist outside the regulatory system.

Neither the Ministry of Health nor the Ministry for Primary Industries willingly publish full statistics related to food-borne illness. But we can infer quite a bit from what they do publish. From a snapshot taken in 2004 we know one important thing: campylobacteriosis (think poultry) makes up 70% of all notified food-borne illnesses. In 2004 12,215 cases of campylobacteriosis were notified. Of these, not a single case was definitely linked to food premises. The Ministry “suspected” 1,019 premises as the source of the illness. The problem with that stat is that we don't know what kind of food premise, what regulatory regime they are under let alone what the basis of suspicion is. I really would like way more detail before I could take that number seriously.

More importantly we know that the rate of food-borne illness has declined markedly since that snapshot was taken. Campylobacteriosis rates peaked ten years ago at about 380 cases per 100,000 population. Since 2008 they have hovered at around 150 cases per 100,000 population – way less than half of the peak and way less than the rate of 236 when the data series began. Without changing our regulatory regime at all we have already significantly improved our public health outcomes.

So why are we putting ourselves through the pain of implementing a new system that most likely will deliver no benefit? Who knows? But the self-interest of the regulatory industry would be my best guess.

The Food Act 1981 allowed local businesses to opt out of Health Act regulation by registering a Food Safety Plan (same as what is now compulsory). Virtually no-one took advantage of this provision for the simple reason that independent assessors charged $1,500+ to audit a business compared to the $100-$300 cost of registering with the local council. In the course of 35 years no-one could find any good reason for changing the way they already did business and making themselves poorer. Of course the way they did things was not "best practice". So rather than admit that that the idea of everyone being HACCP-compliant was not a cost-effective approach MPI and its predecessors got the government to pass legislation making it compulsory. And the councils are delighted because they go from a (technically) hands-off role to an active role with significant approval powers (more power, more money).

I remain hopeful that councils will hold the cost to small businesses of administering the new regime at the same level as they do now. To that end MPI have published an excellent template that food service businesses (cafes, restaurants, pre-schools) can use to set up their system. From what I have seen these types of businesses should be able to set up their system in a few hours. But that largely depends on the whim of their council. Any dispute under the Health Act had to be fought out in the District Court. Now the power shifts completely to the council. And what we have also seen in the cases cited by the Early Childhood Council is that, if the council chooses not to be in the approval/auditing business, then small local businesses are thrown to the commercial auditing companies at whatever price they choose to quote.

Pragmatism seems to have been thrown out the window in favour of intellectual neatness. Yippee.