Queensland Poisonings Highlight Need for Better Food Safety Reporting
By Joe Lederman The temporary closure during February 2006 of Sizzler salad bars across Australia, after the arrest of a woman charged with lacing self-service salad bar foods with rat poison at two outlets, illustrates the need for better reporting and recording requirements for food contamination incidents.
© FoodLegal, March 2006.
Sizzler was heavily criticized in the media for taking 37 days to obtain test identifying the contaminant brodifacoum (a rat poison) in a sample of pasta sauce taken from the Toowong restaurant on January 20, before informing the Queensland Health Department. After a second incident of poisoning occurred at another outlet a month later, Sizzler notified Queensland Health of test results from the first incident. It has also emerged that Queensland Health knew of the first incident, by report of a customer, three days after its occurrence, but did nothing.
Clearly, this raises several important and related issues:
(1) What measures are in place to require food businesses to report contaminations to health authorities – in Queensland and elsewhere in Australia?
(2) How and when are State health authorities recording information in relation to food safety issues or releasing this information to the public?
In response to the Sizzler incidents, the Queensland Health Minister alluded to the possibility of introducing a mandatory reporting requirement for every food business to notify the health authorities immediately upon becoming aware of a contamination incident. However this would require an amendment to the very new Queensland Food Act 2006, which was assented to only on 22 February 2006 but which (as a the date of this publication) has yet to be proclaimed.
Reporting Requirements in Australia
At present, there are no comprehensive food safety reporting and recording measures in place in Australia for incidents of food contamination, related prosecutions or their outcomes. None of the States or Territories have legislated for a mandatory requirement for food businesses to report contamination incidents, nor are State health authorities required to keep or release records of reported contaminations.
Do food businesses have to report contamination incidents?
In Queensland, the new Food Act 2006 (before any further proposed amendment) requires that a food business report to Queensland Health only once a prescribed contaminant (an antibiotic, a pathogen or another thing that may contaminate food) has been isolated by tests of a “prescribed food”. There is a penalty for failure to report without a reasonable excuse (Food Act 2006 (Qld), s 270). This requirement to report applies to a person who carries on a food business and has arranged for a ‘prescribed food’ to be tested as well as to the tester of the food. Each such person must immediately orally notify the chief executive of Queensland Health, or in writing within 24 hours of isolating the contaminant. ‘Prescribed food’ that may, or must, be tested is yet to be defined by regulation.
Yet the Queensland Act, as with the legislation of the other States and Territories, contains no mandatory reporting requirements for food businesses prior to isolating a contaminant in a suspected food, nor time limits within which a suspected food must be tested. The circumstances under which a food business might be required or expected to test food for contaminants are not set out in the Act.
The upshot of all of this is that unless directed by a health authority, the current laws around Australia do not impose any formal legal requirement for a food business to submit food suspected of contamination for testing, let alone report it before testing. If a food business does choose to test a suspected food of its own accord and discovers a contaminant, it is then and only then that an obligation to report would arise.
Failure to deal with a contamination once suspected could still, however, constitute a food safety offence. Under the Australia New Zealand Food Standards Code, food that is reasonably suspected of not being safe or suitable must be kept separately until destroyed, disposed or, returned to its supplier, further processed to be safe and suitable, or ascertained to be safe and suitable (Standard 3.2.2, clause 11). A food business engaged in the wholesale supply, manufacture or importation of food must also have a food recall system in place, and adhere to it when recalling unsafe food (Standard 3.2.2, clause 12). Each Australian state and Territory enforces the Food Standards Code under the Food Act legislation applicable in its jurisdiction, and it is an offence not to comply with the Code.
Do health authorities have to report contamination incidents?A discussion paper on reform of the prior Food Act 1981 (Qld) published in 2002, which formed the basis for the new Food Act 2006 (Qld), considered whether there should be a requirement for the health authority to report its food safety enforcement activities:
“7.6 Reporting requirements
There are no requirements in the Food Act for the reporting of food safety monitoring and enforcement activities by local government or Queensland Health.
Consideration is being given to providing a level of accountability for performance of food safety responsibilities both at the local government level and State level, by including … reporting requirements in the Food Act.”
The reporting requirements suggested in the discussion paper included:
(1) regular reports from Queensland Health to the Minister for Health about aspects of food safety (eg numbers of food safety inspections and food sampling undertaken throughout the State, number of prosecutions and incidence of foodborne illness); and
(2) regular reports from Queensland Health to local governments on food safety activities undertaken throughout the State (eg results of food sampling, food safety initiatives, number of prosecutions under the Food Act).
A discretion, but not a requirement, to report to local governments was included in s 29 of the Queensland Food Act 2006:
“29 Chief executive may give report to local government
(1) The chief executive may give a local government a report about the administration of this Act by the chief executive and local governments.
(2) The report may contain information the chief executive considers appropriate, including, for example, information about the licensing of food businesses, or enforcement, under this Act.
(3) The chief executive may give the report when the chief executive considers it appropriate.”
While issues of enforcement could be perceived to include reporting of contamination incidents, prosecutions and outcomes, there is no mandatory requirement contained in the Act. Furthermore, in Queensland, there is no requirement to publish information about enforcement, in particular, about prosecutions for food safety offences and their outcomes.
As for the rest of Australia, only four of the States and Territories require by law that offences and outcomes of prosecutions be reported by enforcement agencies to the health authority (NSW, SA, NT and Tasmania). Only three require that details of offenders be published in a gazette to inform the public (ACT, NSW, NT).
The absence of reporting of prosecutions is also a woeful state of affairs. There are no public reporting mechanisms at the level of health departments or food authorities or municipalities, and Magistrates Court decisions dealing with different types of food offences are rarely reported, let alone there being any systematic reporting system.
The lack of a comprehensive reporting and recording scheme where a threat of a repeat contamination is imminent has the potential for dire consequences. Likewise, a reporting system to identify those with a history of repeated offences would give greater confidence to consumers that the food laws in this country are being enforced.
A requirement for food businesses to report contamination incidents, combined with greater transparency in information held by health authorities on food law enforcement issues and prosecutions would go some way towards ensuring accountability.
The Sizzler incident in Queensland ought to be a wake-up call for the governments of all Australian States and Territories to improve their procedures and ease the minds of consumers.
By Joe Lederman
The temporary closure during February 2006 of Sizzler salad bars across Australia, after the arrest of a woman charged with lacing self-service salad bar foods with rat poison at two outlets, illustrates the need for better reporting and recording requirements for food contamination incidents.
This is general information rather than legal advice and is current as of 12 Dec 2015. 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.