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If you’re a business owner and you sell food or handle food which is to be sold, there are a few things you need to know before you start plating up. In this article we will focus on the Food Act in NSW, but there is one for each State and Territory in Australia (which we cover later too).
Generally, you will need to notify or register your food-related activity with your council to obtain the proper licencing and certifications to run your business.
For a small business, this can look like a lot of complex regulation and legalese to navigate. Getting a food and beverage lawyer early on to help you sort it through might save you a lot of energy in the long run.
In the meantime, we’ve simplified some of this for you down below so that you can focus on flavour instead!
What Do I Need To Comply With?
Any food business in NSW is subject to the following laws and regulations:
- Food Act 2003 (NSW);
- Australia New Zealand Food Standards Code (FSANZ); and the
- Food Regulation 2015 (NSW).
This is in addition to any requirements and certifications required by your local council.
What Is The Food Act 2003?
The Food Act 2003 outlines various food safety standards for food produced or sold in NSW. The purpose of the Act is to make sure that food is clean, safe to eat and suitable for human consumption.
What Is A Food Business?
A food business as a business, enterprise or activity that involves the sale of food or the handling of food intended for sale. This is regardless of whether the business handles or sells food on only one occasion or whether the business has a commercial, charitable or community nature. The Act applies to all food businesses in NSW.
While it may seem obvious, a ‘food’ is anything which is used for human consumption. This includes any ingredients or additives added to food. It also includes any substance used to prepare food for human consumption if it comes into direct contact with it.
So if you’ve had any involvement in preparing, packaging or selling food, chances are that the Act will apply to you.
Examples Of Offences/Breaches Of The Food Act
There are various offences under the Act:
- Handling or selling food in an unsafe manner, such as where it is likely to cause physical harm to someone who eats it;
- Falsely describing food where it will, or is likely to, cause harm to a consumer, for example where the food is mixed or diluted with a cheaper or less nutritious substance;
- Handling and selling unsuitable food, such as food which has perished or food from a diseased animal;
- Using misleading advertising, packaging or labelling in the handling or selling of food;
- Selling food which is different to what a purchaser demanded;
- Sale of unfit equipment or unfit packaging and labelling for food; or
- Not complying with the Food Standards Code (more on this later).
There are also specific offences in relation to beef products. A food business could be committing an offence under the Act if it labels its beef type, quality, classification, category, cut or grade in a misleading or incorrect way.
The Act also requires that all food businesses have a Food Safety Supervisor (FSS). This supervisor will be knowledgeable on safe egg handling, allergen management and cleaning and sanitising practices. An FSS is also required for food businesses in Queensland, Victoria or the ACT.
Who Can Enter And Inspect My Premises?
There are fairly broad entry and inspection powers under the Act. At any time, an ‘authorised official’ may enter your business premises or any food transport vehicle. Authorised officials are tasked with checking that you are complying with the requirements of the Act.
Inspectors are allowed to open and examine any food or equipment. They can take samples, make copies of any documents, take photographs, voice or video recordings or require you to answer questions and provide information. They are also able to seize anything that could be evidence of an offence. If one of your items is seized and it cannot be returned to you or has depreciated in value, you may be entitled to compensation.
If anything is found to be unclean or unfit, an authorised officer may issue an:
- Improvement notice. This could require you to clean, sanitise or replace your premises, equipment or food transport vehicle. You could also be required to prepare or revise a food safety program.
- Prohibition notice. If you do not comply with the improvement notice, you could then be prohibited from handling or selling food or using certain equipment.
I’ve Breached The Food Act, Now What?
If you’ve breached one of the offences in the Act, there could be a defence available to you in certain situations. These include where:
- Your food is to be exported to another country and it complies with the laws in that country;
- You took all reasonable precautions and exercised due diligence to prevent the offence;
- You immediately disposed or destroyed any unsafe or unsuitable food; or
- You reasonably believed that an unfit piece of equipment or material was not intended to be used for handling food.
Otherwise, you could be looking at a number of serious consequences for breaching the Act. These include:
- Improvement, prohibition or seizure orders.
- Monetary fines. You will be issued a penalty notice for each separate offence, which could end up costing your business into the thousands.
- Prosecution. The NSW Food Authority may prosecute individuals for serious breaches of the Act.
- ‘Name and Shame’ Register. The NSW Food Authority publishes a list of businesses which have breached food safety laws. This could in turn lead to brand and reputational damage to your business.
- Suspended or cancelled licence. The NSW Food Authority could effectively stop you from carrying on your business if you have breached the Act.
What If I’m Not In NSW?
Depending on where you are in Australia, the law around the sale and production of food will vary slightly according to different state legislation:
- Food Act 1984 (Victoria): Food businesses are classified according to risk where Class 1 businesses are highest risk and Class 4 businesses pose lowest risk. This determines priority for inspections and the level of regulation.
- Food Act 2006 (Queensland)
- Food Act 2001 (Australian Capital Territory)
- Food Act 2001 (South Australia) Food businesses are rated using a Food Safety Rating Scheme and also classified according to risk level.
- Food Act 2004 (Northern Territory) Food businesses are classified based on risk by considering their food type, business activity, processing methods and customer base.
- Food Act 2008 (Western Australia)
- Food Act 2003 (Tasmania)
Do I Have To Follow The Food Standards Code?
No matter where you are in Australia, you also need to comply with the Australia New Zealand Food Standards Code, which acts as an overarching federal piece of food safety regulation in Australia.
The Food Standards Code is divided into four chapters.
The first chapter introduces standards which apply to all foods and covers labelling requirements and the use of food additives and materials which come into contact with food.
The second chapter contains the required food standards for specific foods, such as meat, dairy products and alcoholic beverages.
The third chapter covers food safety programs. All food businesses in Australia are required to have a food safety program. This involves:
- Frequently checking food operations to identify hazards;
- Developing and documenting controls for those hazards in a food safety program; and
- Reviewing this program at least annually.
The fourth chapter contains the primary production and processing standards for agricultural products such as meat, poultry, seafood, wine and dairy products.
How Can I Protect My Food Business?
When running a food business, it is important to ensure that you are complying with all of the regulatory hurdles to avoid reputational damage or hefty fines and also to make sure that your food is 100% safe.
Here are a few tips for protecting your business:
- Ensure that your food and premises are clean and that your equipment is in good working order;
- Train any staff which prepare or handle food in proper food safety and hygiene practices;
- Check that your labelling is honest and not misleading and that it complies with the Food Standards Code;
- Appoint a Food Safety Supervisor before selling and handling food;
- Comply with all directions from any authorised officers inspecting your food business;
- Have a lawyer help you comply with the law and regulatory requirements.
- Make sure that you are continually reviewing and following your food safety program.
We know the regulatory world can be overwhelming and complicated. If you have more questions, reach out to us at team@sprintlaw.com.au or contact us on 1800 730 617 for a free, no obligation chat.
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