Tuesday 10 September 2013

Cupcake Freedom

Campbell Live tonight reported on Auckland Council's shutting down of some kids' cupcake stands at a local mall. Because the mall ran the kids' day once a month, according to the story, it then counted as a commercial market. And so the kids had to produce their food in a commercial kitchen.

I initially thought that the new Food Bill was to blame. It was introduced back in 2010 and got a fair bit of push-back in early 2012. But that cannot be the case. Submissions on the Bill closed only a month ago. Since I had never heard of Councils in NZ hitting kid bake stands like this, and as Auckland was blaming national regulations, I incorrectly assumed that the Food Bill had to have gone through. And so I apologise for blaming the Food Bill and its sponsor, Kate Wilkinson.

I still would very much like to know whether there is basis in existing national regulations for Auckland's rather heavyhanded actions in this case. Either the regulation has existed and hasn't been enforced elsewhere, the regulations have changed, or Auckland's interpretation is incorrect.

The original post follows below. It is based on an incorrect premise. I have run a strikethrough tag through it so that it's obvious that it ought not be relied upon.

Update: And I thank @mellopuffy for the correction.
Update 2: More detail here.

Kate Wilkinson promised us this wouldn't happen. And yet here we are.

Her op-ed of January 2012 sought to put to rest petitioner fears that the Food Safety Bill would shut down a lot of small scale entrepreneurship. She wrote:
Those behind the online petition opposing the bill claim it will seriously impede initiatives like community gardens, food co-ops, heritage seed banks, farmers' markets and roadside fruit and vegetable stalls. This is nonsense.
At most, people involved in such activity, where it presents a low risk, will be provided with information.
Events such as sausage sizzles, home bake sales, and other fundraising events will still occur as they always have.The bill is intended to protect, not harm such events, as the bill's critics would have us believe.
Bartering of food is currently included in the Food Act 1981. The proposed bill simply clarifies that those bartering with food, as part of a food business, must ensure it is safe and suitable.
Many small-scale bartering activities will only be subject to food handler guidance – for example, those bartering home-grown produce for goods and services. However, larger scale bartering of food exists and it is appropriate that those enterprises are subjected to the same risk-based measures as those selling their food products in a more conventional manner.
I wrote:
So is the new regime worth the cost? That depends on the compliance costs that will be faced by small and mid-sized traders. Wilkinson assures us that small traders won't face onerous burdens, but I'd really prefer seeing proper analysis of the Bill from someone like Otago's Andrew Geddis. And we have to keep in mind that a substantial proportion of the costs Wilkinson cites might actually be voluntary choices consumers are making that, on lucky draws, yield tasty goodness any diminution of which consequent to regulation ought be counted against the Bill's possible health benefits. Banning me and others like me from having my hamburgers medium-rare might save the health system a bit, but it'll certainly cost me some utils. Equally bad is what a big fixed-cost regime would do to food startups. I really hope that the legislation isn't as costly on those two fronts as some folks fear; I'd love to see independent legal analysis.
So: I was worried about compliance costs on small traders; Wilkinson promised there was nothing to worry about.

Tonight's Campbell Live has Auckland Council shutting down a mall's efforts to support young entrepreneurs. Once a month, they let the kiddies set up little stands selling their cupcakes. Council says that they're forced to shut it down because of Kate Wilkinson's Food Safety Bill. Hit the link to watch the video.

Kate, if you were serious about what you wrote in 2012, you will fix this, right? If your op-ed was right, Auckland shouldn't be interpreting your legislation this way. Please tell them, and tell every other Council, that they are not required to do what Auckland is doing. The problem is Auckland's interpretation, right? Because when I tweet stories from the States about Council health people knocking over kids' lemonade stands, I usually append an #emigrate tag.

Surely here in New Zealand we're not going to need a cupcake equivalent of this?


  1. The Bill referred to in the op-ed has not yet passed. It is currently going through a second round of select committee submissions. Auckland Council are likely still operating under the Food Act 1981.

    MPI's explanation of the new bill suggests it is designed to fix the above cupcake debacle.


    Are Kiwiana fundraising activities covered by the Bill?

    The changes to the Bill will clarify that traditional fundraising and ‘Kiwiana’ activities such as sausage sizzles and school fairs are not regulated other than the requirement to ensure food is safe and suitable.

    This is in contrast to the current Food Act, which takes a rigid one-size-fits-all approach to food safety so that, with limited exceptions, all food for sale must be prepared in a commercial kitchen.

  2. You are correct. Checking the time counters, @Mellopuffy gets first dibs on having corrected me... I suspect that I was in the middle of fixing the post when your comment came through!

  3. The world of food policy corrections has always been ruthlessly competitive. Alas, I must accept that I have been beaten to the punch. You'd be forgiven for thinking the thing had passed by now, it came out of a Domestic Food Review that started in 2003.

  4. I should have double-checked it. But, yeah, I'd expected that a bill drawing protests January 2012 would have been passed by now. Glad they've been taking their time on it... hopefully they'll have gotten it right.

  5. According to the story on Campbell Live last night Council's attention was only drawn to this stall because some sad petty member of the public complained about it. What sort of pathetic individual feels the need to have a moan about a bunch of kids selling cupcakes and other baking? Get off my damn lawn!!!

  6. One who is trying to earn an honest living to which this unlicensed, unregulated competition presents a threat? One who has suffered the consequences of food poisoning following consumption of food prepared to unsafe standards?

  7. If a kids cake stall one day a month presents a threat then you deserve to go out of business.
    And food poisoning from home baking? Really? Speaking as a former microbiologist the likelihood of this is miniscule. If it was a home-made chicken salad maybe, but cakes and biscuits present such a small risk it is hardly worth bothering about.

  8. One more comment on this one. If the kids had set up shop (so to speak) on a table on the sidewalk outside the mall (i.e. outside the commercial premises) one assumes that they would not have fallen foul of the Council's bureaucrats as it would have been classed as your average garden-variety cake stall, like we see at school fundraisers all the time. The nutty thing about this is that conditions for the safe storage and handling of food are probably better inside the mall, rather than being potentially exposed to environmental contaminants in an uncontrolled outdoor location.
    I appreciate the need for safe food handling practices, it is kind of what I was all about in my former life, but I think this has been a bit of an over-reaction. Of course a lot of this depends on the types of food being sold. If it is, as reported, just cakes and biscuits then this presents a pretty low risk. If, on the other hand, the kids are making and selling food which includes seafood, chicken and other higher risk foods then it is entirely appropriate that they take some care in the preparation and handling of their product. This would, in fact, provide a valuable lesson in safe food handling for the kids, and could be incorporated into the business training they are receiving.
    As an aside I'd love it if Campbell could track down the nimby who complained and get them on camera. I'd be interested in hearing their motivation for making the complaint.

  9. Kids selling cupcakes a day a month posing that great a competitive threat? Yikes. And surely if the mall is sponsoring their being there, then the competitors are tenants who could take it up with the mall, no?

  10. I am simply trying to make the point that we don't have the right to judge the individual who made the complaint without knowing his reasons. Perhaps he is not so much of an expert in food safety as Lats (in which case it is up to the Council to take a more informed view); perhaps his cost structure and profit margins, and/or his relationship with the mall management, are not what Eric supposes; perhaps he and/or the Council have other concerns which we don't know about.

  11. Reporting does have some higher risk items having been sold in some stalls.

    I don't suppose anything about the complainant's interests. But if the complainant were a competitor with the kids, I'd expect that he were inside the mall, though I suppose it's possible that some restaurant or outlet near the mall could have been miffed.

  12. Thanks Eric, I have since seen the fuller report you linked which includes quiche as one of the foods being sold. This now makes a little more sense to me; as an egg-based product quiche can, if prepared and handled without proper care and knowledge, pose some risk. I was basing my original outrage on the article I'd seen on Campbell, where if I recall correctly no mention was made of hot food. Mind you, even the humble custard square can be associated with a rumbly tummy if not kept chilled. Custard provides pretty much the perfect growth medium for bacteria, and I for one tend to avoid them like the plague.

  13. Because of the quiche, it looks like they banned everybody.

  14. Sad but from a local pencil-pusher's point of view probably quite defensible. I still maintain that it is a lost opportunity to educate the kids about food safety and about dealing with the legislative framework. Council staff could engage with the kids to explain the whys and hows to running a safe operation rather than employ a blanket ban, but I guess that would take more time and ultimately cost Council. Easier just to say no.

  15. All preparation and sale of food must take place in a registered location. For the purpose of farmers markets and food stalls the combination of a registered kitchen and the stall itself is regarded as a single location. So farmers markets hold a licence in their own right as do each food producer/seller within the market. Simply setting up outside the mall doesn't bypass any legislation.

    What becomes more obvious to operators in mobile environments like farmers markets is the lack of method or consistency exercised by the individual councils. Although the statute and regulation is supposed to be national with virtually no ability to pass by-laws at a local level different councils regulate in different ways. In practice all EHO's exercise discretion and, had the kids not been offering higher risk foods, it is possible Auckland Council may well have let them carry on.

    Although the current umbrella act is the Food Act 1981 it actually references 1974 regulation on food premises and a 1956 act on requirements to register food premises. If you have fond memories of school fairs where home baking was commonly on sale then you are probably remembering a time when the legislative framework was identical to today's. Why have we got tougher? Amongst other things the public sector reforms of the 1980's led to a regime where Environmental Health Officers are paid through licence fees rather than rates and it is transparent that that is so. Let's just say councils are highly incentivised these days to make sure as many licences are issued and paid for as possible.

  16. That last paragraph: incredibly helpful. Thanks for it.

  17. Interesting correction. Turns out the kids may have had a proper defence in law. We have been having an argument with Waimakariri District Council who refuse to recognise the legitimacy of food premises registrations issued by other councils. This mainly affects people who go to markets: do their prep/cooking in one place then travel across the border to a market to do their selling. While checking what the legal basis of their position is (none that I can see) I came across Food Hygiene Regulations 1974 (4)(4)(c) which grants an exemption from the requirement to register food premises to: "any occasional food premises".

    It would be interesting go back and find out how many school fairs and other fundraisers have been shut down by councils given that they have this possible exemption.