Grazing Platter 1900x500

Food Act Prosecution - Chocolate Bar sold by an unregistered food business causes Anaphylactic Reaction

Daniel Silfo, Ian Pridgeon, Marcus Heath, Elizabeth Flanagan and Rory McLeod

Russell Kennedy Lawyers was recently engaged by Brimbank City Council to prosecute the proprietor of an unregistered food business trading as ‘Spoiled Sweet Co’ operating in Sunshine North (food premises) for breaches of the Food Act 1984 (Vic) (Act). The business sold a grazing platter which contained a Kinder Bueno Bar to a customer who requested the platter not to contain nuts but only traces of nuts. A Kinder Bueno Bar consists of 10.5% hazelnuts. The chocolate bar was consumed by a boy who had an anaphylactic reaction resulting in his hospitalisation.

The outcome of the case highlights the significant penalties that can be imposed when the proprietor of a food business sells food that is not of the nature or substance demanded by the purchaser as well as fails to register the premises with the Council in accordance with the Act.

With the number of especially small online food businesses growing it is important that consumers check with any proprietor prior to any purchase that they are registered or if in any doubt contact the relevant Council. Registration is a significant safeguard in the Act to ensure that a food premises is known to the Council and that the food safety risks associated with the food business are appropriately assessed and regulated.

Charge

The Accused was charged with one breach of section 14(1) of the Act which provides

Sale of food not complying with purchaser's demand

  1. A person must not, in the course of carrying on a food business, supply food by way of sale if the food is not of the nature or substance demanded by the purchaser.

The maximum penalty for the offence is $40,000.00 in the case of an individual.

The Accused was also charged with one breach of section 35A(1)(a) of the Act which provides

Requirement to be registered or to notify registration authority

  1. The proprietor of a food business must not allow the business to operate from any food premises —

    (a) that is not registered with the registration authority —



    (ii) in the case of a fixed premises that is the principal premises in relation to a temporary food premises, mobile food premises or food vending machine, in accordance with Division 3 or 4; or…

The maximum penalty for the offence is 120 penalty units (at the time of the offending $19,826.40).

Background Facts

The food premises is a Class 2 food premises serving higher risk food products.

‘Spoiled Sweet Co’ is a food business in accordance with section 4B of the Act, in that it is a business that involves the handling of food and the sale of food.

On 27 October 2020, Council received an email from the Department of Health and Human Services regarding an anaphylaxis investigation regarding ‘Spoiled Sweet Co’ and the supply of a grazing box on 24 October 2020.

The informant conducted a search of Council records and was unable to identify a registered food premises with that trading name nor with the proprietor’s name.

The anaphylaxis notification involved an unregistered food premises trading as ‘Spoiled Sweet Co’, whereby a mother ordered a medium mixed grazing box. The mother requested for no nuts to be included due to an allergy of her son. The mother advised traces of nuts was okay.

Council Environmental Health Officers conducted an Internet search for any advertisements of ‘Spoiled Sweet Co’ and identified an active Facebook page and Instagram account advertising that the food premises trading as ‘Spoiled Sweet Co’, had a valid Food Act registration. Pricelists and menus were advertised. Customers were encouraged to contact the business 48 hours prior to an event.

The mother advised that the grazing box was delivered while she was on the phone and she turned around and saw her son eating an item from within the grazing box before he started to get sick. She questioned her son what he ate with her son pointing towards a chocolate bar that resembled a Kinder Bueno Bar.

An EpiPen had to be administered on the boy and an ambulance was called and the boy was transported to Sunshine Hospital. Upon investigation, it was identified that a Kinder Bueno Bar contains the allergen hazelnuts (10.5%).

The boy made a full recovery. The Accused had experience in the food industry.

Magistrates’ Court Decision

On 30 September 2021, the Accused appeared in the Sunshine Magistrates’ Court via Webex and entered a plea of guilty to the two charges.

The matter was heard before Her Honour Magistrate Grubissa who found the charges proven. The Accused had no prior matters.

Russell Kennedy Lawyers submitted to the Court the following in relation to the section 14(1) charge:

  • it was serious offending which could have had catastrophic consequences;
  • a strong message of general deterrence needed to be sent especially in light of how many of these grazing platter type businesses are popping up; and
  • the Accused had shown little remorse.

In relation to the section 35A(1)(a) charge it was submitted that:

  • the purpose of registration is to ensure that Council is satisfied that a food premises is compliant with the Act and the Food Standards Code;
  • that it is a serious public health risk where food businesses operate without being registered and therefore are potentially unknown to Council; and
  • the fact the Accused advertised that her business was registered when it was not is an aggravating factor.

The Accused submitted that she was of limited means, she suffers from depression and anxiety and various mental health issues. The Accused had no documents to support those claims and Her Honour adjourned the plea part heard to consider any documents as well as proof of her income.

The matter was finalised on 25 November 2021. The Accused failed to supply any further documentation. Her Honour imposed a fine without conviction in relation to each charge and ordered that the Accused pay legal costs.

The fine imposed in relation to the section 14(1) charge was $2,500.00.

The fine imposed in relation to the section 35A(1)(a) charge was $1,750.00.

Costs ordered were in the amount of $3,750.00. The total amount of fines and costs totaled $8,000.00.

Owners of a food business however large or small need to be aware of any requests from a purchaser and also need to comply with registration requirements.

For further information:

Please contact our Prosecution and Enforcement Team should you require any further advice: Daniel SilfoIan PridgeonMarcus HeathElizabeth Flanagan, Rory McLeod.

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