New Zealand has a first-class regulatory regime for food safety. This is the underlying conclusion of the first stage of the Government's Inquiry into Fonterra's Whey Protein Concentrate Incident.

The Inquiry was set up almost immediately after Fonterra's food safety scare, when Fonterra advised the government early August 2013 that infant formula and possibly other products were suspected as being infected with botulism-causing Clostridium botulinum. As is well known, subsequent tests showed that the whey protein concentrate, which was the source of the suspected contamination, did not contain the dangerous bacteria. Considerable damage, however, was done in the meantime.

The first stage of the Inquiry reviewed New Zealand's legal and best practice good safety requirements. The Inquiry is also required to consider the causes of the incident and how it was addressed at the time, but has placed that work on hold until the Ministry of Primary Industries (MPI) completes its compliance investigation into the incident. Despite this, the Inquiry carried out come preliminary investigation, concluding that the incident was not caused by a failure or crises in the regulatory system, and that the causes lay elsewhere.

The Inquiry found that New Zealand's regulatory system is considered one of the best in the world, having achieved systems recognition with the United States and the European Union. The key features of the New Zealand regime are the use of risk management programmes and a good balance of outcome-based and prescriptive standards.

Of course, there are always improvements that can be made, and the Inquiry recommended a number of changes to the food safety system. Many of the changes are unrelated to the incident and are mostly aimed at future-proofing the regulatory system.

Significant recommendations from a legal perspective were:

  • MPI should accelerate the standards integration programme.
  • The requirements for risk management programmes should be elevated to regulations, along with notification and reporting requirements.
  • A Food Safety and Assurance Advisory Council should be established.
  • The independent verifier's role should be clarified to make clear the true client is the regulator not the industry.
  • The compliance and enforcement tools in the Animal Products Act 1999 should be widened and aligned with those in the Food Bill.
  • Mandatory recall provisions in food legislation should be aligned.

While these will be important changes for the dairy sector and the food industry generally, they are also good points to bear in mind in the design of regulatory regimes generally.

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