FoodLegal

By Jenny Awad (FoodLegal Co-Principal) & Austin Jenish (FoodLegal Legal Researcher)

© Lawmedia Pty Ltd, December 2023 – January 2024

As of 8 December 2023, most food businesses must comply with the new food safety management tools set out in Standard 3.2.2A of the Australian New Zealand Food Standards Code (Food Standards Code), This article explores the new standard and outlines the key requirements that businesses will need comply with.
FoodLegal provides on-site inspections and review food safety plans and programs and protocols for any food business.

To whom do the new requirements apply?

Standard 3.2.2A is a national food safety standard which applies to Australian businesses in food service as well as catering and retail sectors which handle potentially hazardous foods. Standard 3.2.2A does not apply to New Zealand businesses, food handling at one-off fundraising events (e.g. sausage sizzle), and food businesses that are not serving or retailing unpackaged food that it is ready-to-eat and potentially hazardous (e.g. convenience store or serving station that only sells food that is not potentially hazardous).

The term “potentially hazardous food” is defined as a food that has to be kept at a certain temperature to minimise the growth of any pathogenic microorganisms that may be present in the food or prevent the formation of toxins in the food. Foods that are commonly considered to be potentially hazardous include: raw foods containing raw or cooked meat (e.g. lasagne), smallgoods, dairy products (e.g. milk, custard), seafood, processed fruits and vegetables (e.g. salads and cut melons), cooked rice and pasta, foods containing eggs, nuts or other protein-rich foods (e.g. quiche, fresh pasta), and other prepared foods containing these ingredients (e.g. sandwiches, uncooked pizza).

There are two types of businesses which are captured by Standard 3.2.2A:

-      Category 1 business: A caterer or food service business which processes unpackaged potentially hazardous food into a food that is ready-to-eat and potentially hazardous food.

-     Category 2 business: A business that sells ready-to-eat and potentially hazardous food via retail where the food was not made or processed (other than slicing, weighing, repacking, reheating or hot-holding the food) by the food business.

Background

All food that is handled, processed and sold in Australia must be safe. This requirement stems from multiple sources of regulation which need to be considered simultaneously:

-          The Australian Consumer Law requires all consumer goods to be safe and of acceptable quality. Similarly, the State and Territory Food Acts prohibit the handling and sale of unsafe food. Therefore, to ensure the food product is safe for its intended purpose (e.g. human consumption), it is important for manufacturers to implement all reasonable steps relating to safe food handling practices.

-          The Australia New Zealand Food Standards Code (Food Standards Code) also includes a number of general food safety standards which apply to all food businesses in Australia. Importantly, Standard 3.2.2 sets prescribed requirements for food businesses and food handlers to ensure that food does not become unsafe or unsuitable, including that the food business must ensure that the food handlers have skills and knowledge in food safety and food hygiene matters. In addition, most food businesses which need to be licensed or registered with the relevant authority (e.g. primary production businesses) need to have a food safety program which sets out record keeping requirements and nominates a food safety supervisor.

Food Standards Australia New Zealand’s (FSANZ’s) Proposal P1053 Food Safety Management Tools introduced Standard 3.2.2A into the Food Standards Code. The main impact of Standard 3.2.2A is that it extends the pre-existing food safety management practices in Standard 3.2.2A to other food businesses (including in the food service, retail and catering sectors).

Standard 3.2.2A became mandatory on 8 December 2023, following a 12-month transition period which commenced on 8 December 2022. It is likely that food businesses which were already complying with Standard 3.2.2 will also be compliant with Standard 3.2.2A.

On November 29 2023, the NSW Food Authority announced a legislative amendment that pushed back the deadline for schools, children’s services, supermarkets, greengrocers and delis in NSW who will now have until December 2024 to comply with Standard 3.2.2A. At the date of this article, no other Australian States and Territories have not formally announced similar extensions.

What are the new food safety management tools that must be implemented?

There are three food safety management tools which exist under Standard 3.2.2A. Category 1 businesses have to implement all three food safety management tools, whereas Category 2 businesses only have to implement food safety training and the supervision of food handlers.

(1)  Food safety training for food handlers: Each person who handles unpackaged potentially hazardous food that is used in the preparation of ready-to-eat food that is to be served to a customer or sold via retail must complete a  food safety training course covering: safe handling of food, food contamination, cleaning and sanitising of food premises and equipment, and personal hygiene.

(2)  Supervision of food handlers: The business must appoint a food safety supervisor and must ensure that the food safety supervisor is available to advise and supervise the food handlers. The food safety supervisor must hold a food safety supervisor certificate that was issued in the last five years, and must have the authority and ability to give directions on safe food handling.

(3)  Substantiating food safety management: The food business must keep records of to demonstrate compliance with Standard 3.2.2A and other relevant food safety requirements outlined in Standard 3.2.2 of the Food Standards Code (e.g. temperature control records). The records must be kept for 3 months.

FoodLegal Food Safety planning

FoodLegal provides on-site inspections and review food safety plans and programs and protocols for any food business. Businesses should review their existing practices to ensure that they comply.

This is general information rather than legal advice and is current as of 12 Dec 2023. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.