COVID-19: Regulatory changes and enforcement priorities for food businesses (as at 3 April 2020)

COVID-19: Regulatory changes and enforcement priorities for food businesses (as at 3 April 2020)

By Jenny Awad (Senior Associate, FoodLegal)

© Lawmedia Pty Ltd, April 2020

This article provides an overview of the regulatory changes and enforcement priorities which apply to food businesses supplying food in the midst of the COVID-19 pandemic, as at 3 April 2020. The key issues discussed relate to health and safety measures to minimise the spread of COVID-19, supply and distribution changes, and competition issues such as price gouging and supermarket coordination.

Australian regulators have made it clear that COVID-19 is transmitted through people and cannot be transmitted by or contracted from food. While it is suspected that COVID-19 may have originated in animals, Food Standards Australia New Zealand (FSANZ) has advised that, as all meat sold in Australia is subject to strict controls (including prohibitions against selling meat and offal from diseased animals for human consumption), it is unlikely that extra precautions need to be taken in relation to meat sold in Australia to prevent the transmission of COVID-19. Notwithstanding this, the World Health Organisation (WHO) recommends cooking meat properly prior to consumption and strictly avoiding any meat from diseased animals.

Based on the understanding of COVID-19 at the time of writing this article (3 April 2020), regulators have advised that infection is most likely to spread through close contact with an infected person or touching contaminated objects or surfaces and then touching the mouth or face. For this reason, Australian regulatory advice is predominantly focused on practising good hygiene and social distancing. Australian Federal and State regulators, in coordinated moves through the Council of Australian Governments (acting as a “National Cabinet” for the duration of the emergency), have also implemented measures and issued guidance to monitor and address all critical supply chain issues to provide consumers with access to food supplies. Supermarkets have also imposed some quotas on purchases of high demand items.

Key regulatory advice and changes impacting Australians in relation to food, are summarised below.

1.   Implementing measures to minimise the spread of COVID-19

While food processing and manufacturing is critical to the food supply chain, many workers in the food sector are unable to work from home and must continue to interact with others in their workplace.

Safe Work Australia (being the Australian government body which develops national policies relating to workplace health and safety) and Australian State and Territory food regulators require food businesses to implement control measures to minimise the spread of COVID-19. These measures should include:

  • Physical distancing measures: (1) ensure that workers are at least 1.5 meters apart; (2) limit physical interactions between workers (e.g. by modifying tasks, reducing the number of workers interacting, splitting shifts, allowing additional time between shifts to limit interaction and provide sufficient time for cleaning, using contact-less communication methods such as mobile phones, spreading out furniture); (3) eliminate or limit visitors (e.g. by using photos or video conferencing tools); and (4) place signage about physical distancing around the workplace.
  • Health checks and quarantine: (1) direct all workers (regardless of whether they are physical at the workplace) to report if they are experiencing symptoms, if they could have been exposed to someone diagnosed with or suspected to have COVID-19 or have undertaken (or are planning to undertake) any travel; (2) encourage workers to report if they observe other workers displaying symptoms; (3) stop workers if they are displaying systems; and (4) stop workers who have contracted COVID-19 from returning to the workplace until they can prove they are clear of the virus.
  • Hygiene: (1) increase usual cleaning schedules (especially in relation to frequently touched surfaces and workplace amenities); (2) provide workers with cleaning agents and training to clean the plant and equipment immediately after use and/or at the end of their shifts; (3) wear gloves and using alcohol based sanitiser before and after wearing gloves; (4) ensure that gloves and alcohol based sanitisers are made available throughout the workplace; (5) ensure workers practice good hygiene and avoid touching their face and any close physical contact; (6) ensure that washroom facilities have adequate supplies for good hygiene.
  • Communication with workers: engage in regular communication with workers and ensure that all workers are informed about the risks of exposure to COVID-19 and the measures they need to implement to reduce this risk and minimise the spread.

2.   What to do if an employee contracts COVID-19

Where an employee is diagnosed with COVID-19, the New South Wales Food Authority (and other Australian State and Territory food regulators) recommends as follows:

  • Isolation: The infected employee must be isolated, and both the employee and food business must follow the directions of public health authorities. The employee must not be released from isolation until they have fully recovered.
  • Rapid tracing of close contacts: The business must immediately work closely with local public health authorities to trace any close contact of the infected employee to minimise the spread of the infection. This rapid action by the food business is essential to minimise disruption.
  • Close contacts: Close contacts must self-isolate for 14 days (at the direction of the relevant public health authority).

3.   Audits and inspections

The New South Wales Department of Primary Industries and the New South Wales Food Authority will continue conducting on-site audits and inspections. To continue minimising the risk of spreading COVID-19, such authorised officers are being focused on maintaining personal hygiene and social distancing practices for all active worksites.

Where possible, remote audits may be introduced. During audits and inspections, authorised officers will be requiring the food business to verify the effectiveness of its existing safety measures and that all evolving legal requirements are being met.

At the time of writing this article (3 April 2020), apart from New South Wales, other Australian State and Territory food regulators have not yet published their detailed information in relation to similar audits and inspections of food businesses. It is likely that similar measures will soon be implemented by all food regulators across Australia in each of the State and Territory jurisdictions.

4.   Import and export changes

At the time of writing this article (3 April 2020), there are no additional restrictions on food imports or exports. However, as of 1 April 2020, there are additional restrictions which apply to non-food exports (namely personal protective equipment) and exporters of commodities may apply for government assistance in arranging flights to key markets. Importers are similarly unaffected but are subject to reduced air freight and possible restrictions from exporting countries (e.g. rice from Vietnam).

Please see our FoodLegal Bulletin article titled Exporting and importing food during the COVID-19 lockdown:What has changed? for more information.

5.   Lifting curfews on truck deliveries to facilitate supply and distribution

The emptying of supermarket shelves, a result of the strains placed on supply chain distributions and logistics, the Australian government coordinating with the States has been directing considerable attention to manufacturing capacity of essential products to ensure adequacy of supply.

Workplace rosters, improved hygiene and workplace distancing processes have been implemented to strengthen supply resilience and to reduce the prospect of supply chain disruptions.

Generally, council-by laws often impose curfews on after-hours truck movements to minimise noise and disruption to residents.

To provide consumers with access to basic food products and facilitate the prompt re-stocking of supermarket shelves, Australian States have now lifted the curfews on trucks to increase deliveries to supermarkets and other food retailers.

At the time of writing this article (3 April 2020), these curfews have been lifted in Queensland, Victoria, South Australia and New South Wales.

6.   Temporary permission for supermarket coordination

The Australian Competition and Consumer Commission (ACCC), which is the Australian regulator for business competition and fair trade in markets and forms part of the Supermarket Taskforce which was recently convened by the Australian Department of Home Affairs, has temporarily granted authorisation for the major supermarkets chains to coordinate to ensure consumers (including vulnerable consumers or those who live in rural and remote areas) have reliable and fair access to groceries during the COVID-19 pandemic. In its media release dated 24 March 2020, the ACCC advised that the authorisation applies to Coles, Woolworths, Aldi and Metcash. Grocery retailers, suppliers, manufacturers and transport groups can choose to opt out of any arrangements.

Outside of this temporary authorisation, such coordination would amount to a breach of the Competition and Consumer Act 2010. However, this temporary authorisation means that supermarkets can liaise together with suppliers and logistics groups with legal protection from court action.

Importantly, this authorisation does not allow supermarkets to agree on retail prices for products. 

7.   Monitoring of excessive pricing (price gouging)

As at the date of this article (3 April 2020), the ACCC has advised that it has not detected price gouging by supermarkets and that increases in prices for fresh produce and other goods have been justifiable by reason of the droughts, or recent bushfires or had a commercially acceptable profit margin. Whilst excessive prices are generally not illegal, the ACCC can require justification of prices and is able to monitor misleading claims about the reasons for price increases as this is likely to constitute a breach of the Australian Consumer Law. The ACCC can take enforcement action against such breaches. The ACCC is monitoring extreme price gouging on essential products as this may constitute unconscionable conduct (also in breach of the Australian Consumer Law).

Note: The Australian government has recently passed laws prohibiting excessive pricing in relation to disposable face masks, disposable gloves, disposable gowns, goggles, glasses, or eye visors used for limiting the transmission of organisms to humans, or of alcohol wipes and hand sanitiser.

8.   Misleading and deceptive advertising

Enforcing the Australian Consumer Law prohibitions against misleading and deceptive advertising continues to be a priority for the ACCC. Food businesses should therefore continue to assess compliance with the Australian Consumer Law and ensure that all representations made in advertising (including labels, print, television and social media) are true and can be substantiated.

FoodLegal can provide risk assessments in relation to compliance with the Australian Consumer Law and any other relevant laws.

This is general information rather than legal advice and is current as of 7 Apr 2020. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.