Second

Session, 47th General Assembly

Elizabeth II, 2013

BILL 22

AN ACT RESPECTING FOOD

SAFETY IN FOOD PREMISES

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

SUSAN SULLIVAN

Minister of Health and Community Services

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTE

This Bill would revise the law with

respect to food safety in food premises.

A BILL

AN ACT RESPECTING FOOD SAFETY IN FOOD

PREMISES

Analysis

Short title

Definitions

PART

FOOD SAFETY

Prohibition

Approved source

Prevention of health hazard

PART

LICENSING AND APPROVALS

Licensing

Construction or alteration of food

premises

PART

III

INSPECTION AND COMPLIANCE

Inspectors

Powers of inspectors re: compliance

Order of inspector

Contravention of Act suspected

Disposition of food seized

Disposition of documents

Telewarrant

Presumption food for sale

PART

GENERAL

Action barred

Protection from liability

Regulations

Offence

SNL2005 cS-16.2

Amdt.

CNLR 1022/96 Amdt.

NLR 78/99 Amdt.

RSNL1990 cF-21 Rep.

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Food Premises Act.

Definitions

2. In

this Act

(a) "approved source" means an

provincial or territorial government or an agency of those governments under

whose authority food safety standards are established or enforced;

(b) "department" means the department

presided over by the minister;

(c) "food" includes every

article used

for food or drink by human beings, an

article which ordinarily enters into or

is used in the composition or preparation of food for human beings, flavouring

matters, condiments, and ice sold for domestic purposes;

(d) "food premises" means a place where

food is prepared, manufactured, handled, cut, processed, packaged, displayed,

stored, offered for sale, sold or served and includes hotels, restaurants,

catering vehicles, mobile preparation premises, temporary facilities, retail

food stores, tents, booths, ships, tour boats, bakeries, breweries, wineries, bottling

establishments, drinking establishments, dairies, creameries, pasteurizing

plants and meat packing premises;

(e) "health hazard" means a condition or

circumstance in a food premises that has or is likely to have an adverse effect

on the health of a person and includes the physical, chemical or biological

contamination of food;

(f) "inspector" means a person or a

class of persons designated under

section 8;

(g) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(h) "operator" means a manager, owner,

licensee or lessee of a food premises;

(i) "package" includes a box, bottle,

basket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in

which food is placed or packed; and

(j) "unfit for human consumption" means presents

a risk to human health due to possible physical, chemical or biological contamination.

PART I

FOOD SAFETY

Prohibition

3. A

person shall not sell or distribute to a person any food which is unfit for

human consumption.

Approved source

(1) Food

which is used in a food premises shall be obtained from an approved source.

(2) Notwithstanding subsection (1),

(

a) an operator may obtain fresh fruit and

vegetables from a farmer; and

(

b) a licensed in-province retail fish

establishment may obtain fish from a fish harvester.

Prevention of health

hazard

5. Food

in a food premises and food being transported shall be prepared, manufactured,

handled, cut, processed, packaged, displayed, stored, offered for sale, sold or

served in a manner that prevents it from being unfit for human consumption.

PART II

LICENSING AND APPROVALS

Licensing

(1) The

minister may issue a licence to operate a food premises.

(2) A person shall not operate a food premises

without a licence.

(3) A licence shall be issued only to a specific

person and with respect to a specific food premises.

(4) The minister may amend, suspend, cancel or

refuse to renew a licence or add or impose terms or conditions on a licence.

(5) A licence is non-transferable.

(6) A licence issued under this

section shall be

affixed in a conspicuous place in the food premises.

Construction or

alteration of food premises

7. A

person shall not construct or alter a food premises unless plans and

specifications prescribed in the regulations respecting the design and

construction of the food premises are submitted to and approved by an

inspector.

PART III

INSPECTION AND COMPLIANCE

Inspectors

(1) The minister may designate persons or classes of persons to

act as inspectors for the purpose of this Act and the regulations.

(2) A person shall not interfere with, obstruct,

attempt to obstruct, or fail to cooperate with, an inspector while he or she is

exercising powers or carrying out duties or functions under this Act or the

regulations.

(3) A person shall not knowingly make a false or

misleading statement, either orally or in writing, to an inspector while he or

she is exercising powers or carrying out duties or functions under this Act or

the regulations.

Powers of inspectors

re: compliance

(1) An

inspector may, during regular business hours, for a purpose related to the

administration or enforcement of this Act or the regulations, inspect or

examine a food premises, processes, books and records of a person that the

inspector may consider relevant for the purpose of determining compliance with

this Act or the regulations, and the inspector may, without a warrant,

(

a) enter any premises

(

i) which is a food premises,

(ii) where anything is done or is suspected by the

inspector of being done in connection with a requirement of this Act or the

regulations, or

(iii) where any property, or books and records respecting

food safety are or may be kept;

(

b) make copies or extracts or take photographs, videos

or audiotapes of facilities, equipment or food that the inspector considers necessary;

(

c) take food samples;

(

d) require the operator or an employee of a food premises

to give the inspector all reasonable assistance, including the production of

books and records as requested by the inspector, and to answer all proper

questions relating to the administration or enforcement of this Act or the

regulations and, for that purpose, require the operator or an employee to

attend at the premises with the inspector; and

(

e) require the operator or an employee to make

available the means to generate and manipulate books and records that are in

machine readable or electronic form and any other means or information

necessary for the inspector to assess the books and records.

(2) Notwithstanding subsection (1), an inspector

shall not enter a dwelling-house without the consent of the occupant except

under the authority of a warrant issued under this Act.

Order of inspector

10 .

(1) Where an inspector finds that the operator

or an employee of a food premises is not in compliance with a provision of this

Act or the regulations, the inspector may order the operator or an employee to

comply with the provision and may require the order to be carried out immediately

or within the period of time that the inspector specifies.

(2) Notwithstanding subsection (1), where an

inspector reasonably believes that the food premises or something in or on the

food premises poses an immediate health hazard, the inspector may, in writing,

order the operator or an employee of a food premises to immediately stop all or

a portion of the preparation, manufacturing, handling, cutting, processing, packaging,

display, storage, sale or service of food and before resuming operations, to

take the remedial measures specified in the inspector's order that are

necessary to ensure that the processes can be performed or provided without

further risk to the health and safety of others.

(3) An inspector may order an operator or employee

of a food premises to close the food premises where

(

a) the food premises is operating without a valid

licence; or

(

b) the conditions described in subsection (2)

exist.

(4) Within 24 hours of the issuance of an order

under subsection (3) an inspector shall give written notice of that order to

the operator outlining the reasons for the closing.

(5) An order of an inspector issued under subsection

(3) shall

(

a) where required by an inspector, be posted on

the food premises in a location that is visible to the public and unobstructed

from view; and

(

b) remain in effect until the remedial action has

been taken to the satisfaction of the inspector.

Contravention of

Act suspected

11 .

(1) Where,

during the course of an inspection or examination under

section 9, or otherwise

where an inspector believes on reasonable grounds that there has been a

contravention of this Act or the regulations, the inspector may, with a warrant

issued under this Act, seize and take away anything that may provide evidence

with respect to a suspected offence under this Act or the regulations as

evidence of a contravention and may retain those things until the time they are

required in a court proceeding.

(2) A Provincial Court judge who is satisfied upon

oath or affirmation that there are reasonable grounds for believing there is in

or on a food premises or any premises anything that may provide evidence with

respect to a suspected offence under this Act or the regulations, may issue a

warrant authorizing an inspector to enter the premises for the purpose of investigating

the suspected offence and to

(

a) search;

(

b) examine the contents of the food premises and

make those inquiries that the inspector considers necessary;

(

c) copy, extract, photograph, video, seize and

take away evidence, books and records; and

(

d) seize, take away, hold and store food.

(3) The operator or an employee of a food premises

referred to in this

section or a person present at the food premises shall not

obstruct an inspector in the carrying out of his or her duties under this

section as authorized by the warrant.

(4) Notwithstanding subsection (1), an inspector

may exercise the powers of search and seizure under that subsection without a

warrant issued under subsection (2) where the conditions for obtaining the

warrant exist but by reason of exigent circumstances, it would not be practical

to obtain a warrant.

(5) For the purpose of subsection (4), exigent

circumstances include circumstances in which the delay necessary to obtain the

warrant would result in danger to human life or safety or to the loss or destruction

of evidence.

Disposition of

food seized

(1) Where,

following a seizure under

section 11 , proceedings are not taken, charges are

withdrawn or proceedings are taken and the person charged is acquitted, the

inspector or other person having custody of the food seized under

section 11

shall return it to the person from whom it was seized.

(2) Notwithstanding subsection (1), where food was

seized under

section 11 and an examination by, or tests ordered by the inspector

discloses that the food is unfit for human consumption, the food shall be

disposed of or destroyed as ordered by the inspector.

Disposition of

documents

(1) Where

an inspector removes documents or records from a food premises for the purpose

section 11, and makes a copy or extract of them or a part of them, the inspector

shall give a receipt to the operator or an employee of the premises for the

documents or records removed.

(2) Where documents or records are removed from a

food premises, the documents or records shall be returned to the operator or an

employee as soon as the copies or extracts have been made.

(3) A copy or extract of a document or record

related to an inspection, examination, test or inquiry purporting to be

certified by the inspector is admissible in evidence in an action, proceeding

or prosecution as proof, in the absence of evidence to the contrary, of the

original without proof of appointment, designation, authority or signature of

the person purporting to have certified the copy.

Telewarrant

(1) Where,

in the opinion of an inspector it would not be practical to appear in person

before a Provincial Court judge to apply for a warrant, the inspector may make

the application by telephone, facsimile or other means of telecommunication.

(2) Where an application for a warrant is

submitted by telephone, facsimile or other means of telecommunication, the

information to support the application shall be given under oath or

affirmation, and the oath or affirmation may be administered by telephone,

facsimile or other means of telecommunication.

(3) The sworn or affirmed information submitted by

telephone, facsimile or other means of communication shall include a statement

of the

(

a) circumstances that make it impractical for the

inspector to appear personally before a Provincial Court judge; and

(

b) the grounds relied upon by the inspector for

believing that a person has contravened this Act or the regulations or that entry

onto public or private premises where a contravention of this Act or the

regulations is believed to occur has been denied.

(4) The sworn or affirmed information submitted by

telephone, facsimile or other means of telecommunication by an inspector shall

specify the name of the person giving evidence, the facts and the manner and

location in which evidence was received, and a record of that information shall

be filed by the Provincial Court judge with the court over which the judge presides.

(5) Where an inspector acts under the authority of

a warrant obtained under this section, he or she shall provide a fascimile of

the warrant to the operator or an employee of the premises at the time the warrant

is carried out.

(6) In subsection (5), "fascimile"

includes a record produced by electronic means or a written record of a

telephone conversation made by both parties to the conversation while it is in

progress and which the parties have confirmed as to its accuracy by reading

their record of the conversation to one another at the end of the conversation.

Presumption food

for sale

15. Where

food is found upon a premises ordinarily used for the sale or storage of the

food, or similar food, that food shall be considered to be held for sale.

PART IV

GENERAL

Action barred

16. An

inspector or another person exercising a power or performing a duty or function

under this Act or the regulations is not liable for exercising the power or

performing the duty or function in good faith.

Protection from

liability

(1) A person who

reports to an inspector or peace officer a violation or suspected violation of

this Act or the regulations is not liable to a civil action in respect of the

allegation contained in the report or for anything done in good faith to assist

an inspector or peace officer in an inspection or investigation.

(2) A person shall not dismiss, suspend,

discipline, demote, harass or otherwise disadvantage or penalize an individual

where

(

a) the individual, acting in good faith and on

the basis of reasonable belief, has disclosed to an inspector that another person

has contravened or is about to contravene a provision of this Act or the

regulations;

(

b) the individual, acting in good faith and on

the basis of reasonable belief, has done or stated an intention of doing

an act

that is required to be done in order to avoid having a person contravene a

provision of this Act or the regulations;

(

c) the individual, acting in good faith and on

the basis of reasonable belief, has refused to do or stated an intention to refuse

to do

an act that is in contravention of this Act or the regulations; or

(

d) another person believes that the individual

will do

an act described in paragraph (a), (

b) or (c).

Regulations

18. The

minister may make regulations

(

a) prescribing the manner in which food intended

for human consumption shall be produced, prepared, manufactured, handled, cut,

processed, packaged, served, displayed, stored, offered for sale, advertised, exposed

for sale, sold, transported or delivered;

(

b) prescribing the manner in which packages shall

be labelled in order to disclose the nature or method of preparation of the

contents, the date of preparation and method of storage;

(

c) prescribing standards applicable to different

trades or classes of food premises;

(

d) prescribing the plans and specifications

required to be submitted to an inspector for the construction or alteration of

a food premises;

(

e) respecting the licensing of food premises;

(

f) exempting particular food premises from the

requirements of this Act or the regulations;

(

g) prescribing food safety standards for food

premises;

(

h) establishing qualifications and standards to

be met by food premises employees;

(

i) respecting the records required to be kept by

food premises; and

(

j) prescribing requirements respecting the

control of pests in food premises.

Offence

(1) A

person who contravenes this Act or the regulations or an order made under this

Act or the regulations or who fails to cooperate with an inspector or comply

with an order of an inspector is guilty of an offence and liable, on

summary

conviction,

(

a) for a first offence, to a fine of not less

than $250 and not more than $2,500 or to imprisonment for a term of not less

than one month or more than 6 months, or to both a fine and imprisonment;

(

b) for a second offence to a fine of not less

than $2,500 and not more than $5,000 or to imprisonment for a term of not less

than 2 months or more than 6 months, or to both a fine and imprisonment; and

(

c) for a third and subsequent offence to a fine

of not less than $5,000 and not more than $25,000 or to imprisonment for a term

of not less than 2 months or more than 6 months, or to both a fine and

imprisonment.

(2) Each contravention of this Act or the

regulations constitutes a new and separate offence.

(3) Where an offence under this Act or the

regulations is committed or continued on more than one day, the person who

committed the offence is liable to be convicted for a separate offence for each

day on which the offence is committed or continued.

(4) For the purpose of subsections (2) and (3), a

conviction for an offence more than one year after the date of the last

previous conviction shall be considered to be a conviction for a first offence.

(5) Where a person is convicted of an offence

under this Act or the regulations, in addition to another punishment that may

be imposed under this Act, the court may, having regard to the nature of the

offence and the circumstances surrounding its commission, make an order requiring

the offender to comply with those conditions that the court considers

appropriate and just in the circumstances for securing the offenders good

conduct and for preventing the offender from repeating the same offence or

committing other offences.

(6) With respect to an offence under this Act or

the regulations, a complaint may be made and a summons issued by means of a

ticket under the Provincial Offences Act.

SNL2005 cS-16.2

Amdt.

20. Paragraph

4(1)(

g) of the Smoke-Free Environment

Act, 2005 is amended by deleting the reference " Food and Drug Act " and substituting the reference " Food Premises Act ".

CNLR 1022/96 Amdt.

21. (1) Subsections 5(1), (3) and (4) of the Food Premises Regulations are repealed.

(2) Section

47 of the Food Premises Regulations is

repealed.

NLR 78/99 Amdt.

Section 2 of the Provincial Offences Ticket Regulations, 1999 is amended by adding

immediately after paragraph (

i) the following:

(i.1) a provision of the Food Premises Act or a regulation made under that Act;

RSNL1990 cF-21

Rep.

23. The Food

and Drug Act is repealed.

Queen's Printer