Use Whose Containers? The Legality of BYO containers for Food Purchases in New Zealand

Use Whose Containers? The Legality of BYO containers for Food Purchases in New Zealand

Key Points

  • Bringing your own containers to food outlets that sell unpackaged food is a great way to reduce waste.
  • Most food retailers in NZ accept BYO containers, but there are some that do not (including major supermarkets), citing hygiene/food safety laws.
  • The Food Act 2014 – New Zealand’s primary legislation relating to food safety – contains no requirement that food outlets prohibit BYO containers.
  • The Ministry of Primary Industries has confirmed that businesses are free to refuse to put food in BYO containers, but that’s a choice they make, not something that’s required by law.
  • A business may voluntarily incorporate restrictive requirements into their food control plan – which then makes those requirements legally enforceable – but food control plans can be amended.

Action Points

 

A common complaint we hear from people trying to reduce their waste is the prolific plastic packaging of store-bought food, especially things like meat, seafood and cheese. One way of getting around this packaging is to shop at places where these goods are sold unpackaged (delis, butchers, fishmongers etc) and to bring your own containers for the food to be put into. A similar approach can be taken for takeaways.

While this sounds great, we’ve found that people feel a bit awkward turtle asking shops if they can use a BYO container. We recognise this because we feel it too! To remove this barrier, we decided to take on that awkward for you (you’re welcome!). We’ve asked virtually every food retail shop in New Zealand that stocks unpackaged food if they accept BYO containers. We’ve compiled the positive results in our Regional Zero Waste Shopping Guides. What our systematic research has demonstrated is that most retail outlets that sell food and drinks unpackaged in New Zealand accept BYO containers (not only that, but most are delighted to do so because they too care about waste reduction).

However, there are some sticklers who reject BYO containers, including most major supermarket chains in New Zealand. The Rubbish Trip, along with several other waste-free advocates, is currently calling on supermarkets to reverse this policy. You can read our media release on the matter here (which we issued alongside Rachel Benefield of Plastic Free Kāpiti; Wellington-based group Waste-ed; and Kristy Lorson of EarthSavvy and the founder of the Zero Waste in NZ! Facebook group) and see some possible actions you can be involved with to help move things along.

One thing we have learnt is that many businesses who refuse to accept BYO containers say it’s because of ‘health and safety’.

Now, we want to emphasise that a business is within its rights to reject BYO containers if they want; it’s their business. However, what gets us is that more often than not, businesses imply that the issue is out of their hands. In particular, we are so often told that there is some sort of legal impediment to BYO container acceptance. We’ve heard all sorts – references to ‘an MPI directive’, ‘health and safety regulations’, ‘council concessions’ etc. When pressed, staff are frequently unable to cite the offending Act/regulation/section/clause. But they always seem so emphatic that in the moment you don’t feel like arguing. We don’t like it when this happens because it makes the situation more awkward and puts the customer in the position of feeling like they are asking the outlet to do something illegal or unreasonable.

So, we decided to do some research into the law to see what the sitcho actually is. Here’s what we found:

  • The Food Act 2014 – New Zealand’s primary legislation relating to food safety – contains no requirement that food outlets prohibit BYO containers. To be honest, you don’t really need a law degree to work this out, it’s perfectly obvious because so many businesses accept BYO containers and they can’t all be breaking the law!
  • However, food traders do have the overarching duty, under s 14 of the Act, to ensure the food they sell is “safe and suitable”. What fulfillment of this duty looks like is not precisely explained or codified because the Act was intended to give food traders more flexibility (though there are certainly many food traders who will tell you that the new Act is the pinnacle of oppression, but that’s another story).
  • So, while most retailers accept BYO containers, they will probably strike a balance and manage any potential safety risk by retaining the right to reject a container that is visibly dirty or made of a porous material inappropriate for the food in question.
  • Some businesses may decide to go further and implement a blanket ban on BYO containers. However, this is not legally necessary and it exceeds the requirements of the legislation.

Despite being confident in our findings, we were still finding some businesses referring to health and safety and hygiene laws. And we kept seeing comments from members on the Zero Waste in NZ! Facebook group who’d had their BYO containers turned down due to the same legal arguments.

So, we decided to double check the situation with the Ministry of Primary Industries (who administer the Food Act). A spokesperson told us:

“Allowing customers to provide and use their own containers is up to individual businesses. There are instances of customers using their own containers in other sectors, such as bulk-buy type shops or coffee shops who refill drinks in personal cups.

Businesses must manage the risk of cross-contamination up to the point of sale. Under the Food Act 2014, food businesses were given greater flexibility to manage food safety risks. The legislation does not preclude a food business from allowing customers to use their own container.

Safety risks from this practice can be managed in a variety of ways, and the business has the ability to choose what works best for them to achieve food safety. For example, the legislation does not require a six step cleaning process for customer’s own containers – but a business can decide to do this to manage their food safety risks. If they incorporate this requirement in their food control plan, it will be enforced under the Food Act. If it’s not in their food control plan, but is something they introduce as a store policy, it is not enforceable under the Food Act.

Sometimes food businesses will not allow customers to use their own containers due to liability concerns.”

The main thing to note here is that a business can actually bind themselves to reject BYO containers, or accept them only in stringent circumstances, if they voluntarily incorporate such self-imposed requirements into their Food Control Plan. So, sometimes it may in fact be true that a business is legally barred from accepting BYO containers. But it’s important to note that this would be from their own doing when they created their Food Control Plan. And a Food Control Plan is not a forever document. A business can simply reverse their self-imposed anti-BYO container policy by amending/changing their Food Control Plan under sections 45 and 46 of the Food Act.

So there you have it.

The next time you take your BYO container to a deli, butcher, fishmonger, supermarket or other food retailer and they try to turn you down, ask them why. If they tell you it’s because of some law, you can tell them that no such law exists. You might also want to ask them if it’s included in their Food Control Plan. If it is, then they have to stick to that, but let them know that their food control plan can be changed to promote less wasteful ways of shopping.

In the end, it’s important to remember that a business is completely within their rights to refuse BYO containers. There’s no point getting into an argument because that’s negative for everyone. However, a respectful and informed conversation might be enough to change a business’ position on the matter. If you have no success at a particular outlet, we encourage you to take your business elsewhere (if you can) as there are so many businesses now that accept BYO containers, there’s almost always an alternative!

Just a small side note… recent changes to the legislation referring to Health and Safety have nothing to do with the sale of food. That law relates to managing health and safety at work and it creates obligations for employers towards their employees, not retailers’ obligations towards customers. That’s why it’s called the Health and Safety at Work Act. It might sound pedantic but if a staff member is telling you they can’t accept a BYO container because of ‘health and safety regulations’, this is probably a red flag that they aren’t really sure of their obligations under the Food Act.



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