NSW Food Act 2003 An Overview of the Food Act 2003 (amended 2004) for Australian Beverages. Bill Porter NSW Food Authority December 2004
Focus an overview only This address is about an overview of the new Food Act An introduction to Food Safety Scheme proposals Review of Food Safety Standards Very little on Food Standards Code otherwise
Food Act 2003 mk I Food Act 2003 replaced the Food Act 1989 and commenced 23 February 2004 Except ss 93 & 96 Food Regulation 2004 replaces the Food Regulation 2001 Adoption of Model Food Act, see www.foodsecretariat.health.gov.au
Food Act 2003 mk II Food Act 2003 is amended by Food Legislation Amendment Act 2004 which commenced 5 April 2004 Consequent amendments to Food Regulation 2004 & schemes Follows review required by Section 73 Food Production (Safety) Act 1998 (Kerin Review)
Food Production (Safety) Act 1998 Repealed by the Food Legislation Amendment Act 2004 Provisions relating to registration, food safety schemes etc carried over to Food Act 2003 SafeFood continues as NSW Food Authority established by the Food Act 2003 (mk II) Food Safety Scheme regulations transferred to Food Act 2003
Preliminary - objectives Ensure food for sale is safe & suitable for human consumption Prevent misleading conduct in connection with the sale of food Provide for the application of the Food Standards Code (s.21) Compare FSANZ Act s.10
Enforcement Agency Food (s.4,5) Food business Food safety scheme Food Safety Standards Handling of food Premises Sell Unsafe food (s.4,8) Unsuitable food (s.4,9) Definitions (s.4)
Offences Serious Other (other than serious?) More Offences (not serious?) Offences under Regulations
Serious offences (s.13-15) Handling food in unsafe manner (s.13) Individual: 750-1,000 PU Corporation: 3,750-5,000 PU Alternative verdict (s.124) Sale of unsafe food (s.14) Individual: 750-1,000 PU and/or 2 yrs gaol Corporation: 3,750-5,000 PU False description (s.15) Individual: 750-1,000 PU and/or 2 yrs gaol Corporation: 3,750-5,000 PU 1 Penalty Unit (PU) = $110
Other offences (s.16-22) Handling & sale of unsafe food (s.16) Handling & sale of unsuitable food (s.17) Misleading conduct (s.18) Not complying with purchaser s demands (s.19). Unfit equipment, packaging or labelling material (s.20) Not complying with the Food Standards Code (s.21) Penalties vary: Individual 400-500 PU, Corporation 2,000-2,500 PU
More offences Fail to comply with emergency order (s.35) Fail to comply with authorised officer (s.40) Interfere with seized items (s.41) False information (s.42) Obstruct/impersonate/threaten (s.43) Fail to comply with prohibition order (s.64) Obstruct/impersonate auditor (s.99) Conduct business without notification (s.100) Fail to comply with food safety scheme (s.104)
Key Defences (s. 24-29) Due diligence Mistaken and reasonable belief not available (s.27) Export
Emergency powers (s.30-36) Special Orders: serious danger to health eg warnings, closing harvest areas, prohibiting food, recalls, impounding food, prohibiting activities. NSW Food Authority ONLY Failure to comply: Individual: 500 PU Corporation: 2,500 PU
Inspection (s.37) Little change Reasonable time Entry/records Power to require a person to provide information or answer questions [s.37(1)(o)] Offence if false or misleading information provided (s.42) Search warrants (s.39)
Seizure (s.38-56) Little change Authorised Officer may seize belief on reasonable grounds Destroy seized food posing immediate risk to health (s.46) Seizure Policy Return/Forfeit/Compensate/Appeal Interference [s.41]
Improvement Notices (s.57-66) Authorised Officers MAY serve a notice (s.57) Unclean or unfit premises, vehicles or equipment Believe on reasonable grounds: unclean, insanitary condition or unfit for the purpose for which it is designed. do not comply with the Food Safety Standards food safety program not being implemented. Food Standards Code contravention for handling food
Prohibition Order (s.57-66) NSW Food Authority (DG & delegates) may serve a Prohibition Order on the proprietor (s.60). The Enforcement Agency (eg Council) has this power under the Food Act Can ONLY be served if any circumstance in s. 57 exists AND: either the proprietor has not complied with an Improvement Notice; OR to prevent or mitigate serious danger to public health [s.60(1)(b)(ii)]./
Prohibition Order (s.57-66) Can order: Food not be handled Food not to be conveyed Specified equipment not to be used Food not to be handled in a specified way or purpose
Auditing Sections 93 & 96 relating to priority classification and audit frequency have not yet commenced. Schedule 2, clause 15, allows for continuing auditing of food safety programs provided by food safety schemes. The same clause continues the previous regulations establishing food safety schemes, but now under the Food Act 2003.
Administration (s.107-113) NSW Food Authority = DG (s.107) Enforcement Agency (s.110-113, definition s.4) (NSW Food Authority) (Local Councils) (Lord Howe) (Kosciousko National Park)
Penalty Notices Offence under the Act must be prescribed by Regulation May be served by authorised officer Commencing soon
Procedural Matters Employers may be proceeded against for contraventions by employees (s.121) Directors of Corporations may be proceeded against as well as the Corporation (s.122)
Miscellaneous This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities (s138)
Food Safety Schemes Existing Dairy Meat Shellfish
Food Safety Schemes Under preparation Goat dairy Plant products Seafood (high/low) Eggs
Food Safety Schemes National Risk Validation Catering functions; offsite; seating limits Vulnerable populations aged care; hospitals
Food Safety Standards Standard 3.1.1 Largely overtaken by Food Act Standard 3.2.1 Implementing of Food Safety Plans Standard 3.2.2 Food Safety Practices Standard 3.2.3 Food Premises & Equipment
Standard 3.2.1 Food Safety Programs Ties into the National Process Development through FSANZ Dependent on priority classification Introduction of food safety programs based on risk
Standard 3.2.2 Food Safety Practices Skills & knowledge Notification Food recall system required Health of food handlers Carry-over from packaging Animals and pests
Standard 3.2.3 Food Premises & Equipment Outcome based Interface with local councils Application of AS 4674 2004? Carry-over from food contact surfaces
THANK YOU www.foodauthority.nsw.gov.au www.foodstandards.gov.au www.foodsecretariat.health.gov.au www.legislation.nsw.gov.au NSW Food Authority Contact Centre 1300 552 406