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Contents (2003 - 43)
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Food Act 2003 No 43
Current version for 7 July 2017 to date (accessed 26 July 2017 at 10:26)
Part 2
Part 2 Offences relating to food
Division 1 Serious offences relating to food
13   Handling of food in unsafe manner
(1)  A person must not handle food intended for sale in a manner that the person knows will render, or is likely to render, the food unsafe.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.
(2)  A person must not handle food intended for sale in a manner that the person ought reasonably to know is likely to render the food unsafe.
Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
14   Sale of unsafe food
(1)  A person must not sell food that the person knows is unsafe.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.
(2)  A person must not sell food that the person ought reasonably to know is unsafe.
Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
15   False description of food
(1)  A person must not cause food intended for sale to be falsely described if the person knows that a consumer of the food who relies on the description will, or is likely to, suffer physical harm.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.
Note.
 Examples of food that is falsely described are contained in section 22.
(2)  A person must not cause food intended for sale to be falsely described if the person ought reasonably to know that a consumer of the food who relies on the description is likely to suffer physical harm.
Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.
Note.
 Examples of food that is falsely described are contained in section 22.
(3)  A person must not sell food that the person knows is falsely described and will, or is likely to, cause physical harm to a consumer of the food who relies on the description.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.
Note.
 Examples of food that is falsely described are contained in section 22.
(4)  A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description.
Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.
Note.
 Examples of food that is falsely described are contained in section 22.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
Division 2 Other offences relating to food
16   Handling and sale of unsafe food
(1)  A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsafe.
(2)  A person must not sell food that is unsafe.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
17   Handling and sale of unsuitable food
(1)  A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsuitable.
(2)  A person must not sell food that is unsuitable.
(3)  For the purposes of this section, it is immaterial whether the food concerned is safe.
Maximum penalty: 400 penalty units in the case of an individual and 2,000 penalty units in the case of a corporation.
Note.
 An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
18   Misleading conduct relating to sale of food
(1)  A person must not, in the course of carrying on a food business, engage in conduct that is misleading or deceptive or is likely to mislead or deceive in relation to the advertising, packaging or labelling of food intended for sale or the sale of food.
(2)  A person must not, for the purpose of effecting or promoting the sale of any food in the course of carrying on a food business, cause the food to be advertised, packaged or labelled in a way that falsely describes the food.
Note.
 Examples of food that is falsely described are contained in section 22.
(3)  A person must not, in the course of carrying on a food business, sell food that is packaged or labelled in a way that falsely describes the food.
Note.
 Examples of food that is falsely described are contained in section 22.
(4)  Nothing in subsection (2) or (3) limits the generality of subsection (1).
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
Note.
 An offence against subsection (1), (2) or (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
19   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.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
Note.
 An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
(2)  For the purposes of this section, it is immaterial whether the food concerned is safe.
20   Sale of unfit equipment or packaging or labelling material
(1)  A person must not sell equipment that if used for the purposes for which it was designed or intended to be used:
(a)  would render or be likely to render food unsafe, or
(b)  would put other equipment, or would be likely to put other equipment, in such a condition that, if the other equipment were used for the purposes for which it was designed or intended to be used, it would render, or be likely to render, food unsafe.
(2)  A person must not sell packaging or labelling material that if used for the purposes for which it was designed or intended to be used would render or be likely to render food unsafe.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
21   Compliance with Food Standards Code
(1)  A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale.
(2)  A person must not sell any food that does not comply with a requirement of the Food Standards Code that relates to the food.
(3)  A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.
(4)  A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code.
(5)  This section does not require compliance with a provision of the Food Standards Code in relation to the conduct of a food business that is primary food production unless a food safety scheme provides that the provision applies to the food business or to a class of food businesses that includes the food business concerned.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
Note.
 An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
22   False descriptions of food
(1)  For the purposes of this Part, food that is falsely described includes food to which any one or more of the following paragraphs applies:
(a)  the food is represented as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with that prescribed standard,
(b)  the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance in a quantity or proportion that significantly diminishes its food value or nutritive properties as compared with food of the represented nature or substance,
(c)  the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance of lower commercial value than food of the represented nature or substance,
(d)  the food is represented as being of a particular nature or substance and a constituent of the food has been wholly or partly removed so that its properties are diminished as compared with food of the represented nature or substance,
(e)  any word, statement, device or design used in the packaging or labelling of the food, or in an advertisement for the food, would create a false impression as to the nature or substance of the food, or the commercial value of the food, in the mind of a reasonable person,
(f)  the food is not of the nature or substance represented by the manner in which it is packaged, labelled or offered for sale.
(2)  Without limiting the application of subsection (1) of this section to section 18 (2), food is falsely described for the purposes of section 18 (2) if it is supplied in response to a purchaser’s request for a particular type of food, or a food that does not contain a particular ingredient, and the food is not of that type or contains that ingredient.
23   Application of provisions outside the State
For the purposes of a provision of this Part, it does not matter that the food concerned was sold or intended for sale outside this State.
Note.
 See section 25 for a defence in relation to food intended for export.
Division 2A Beef labelling
23A   Beef labelling schemes
(1)  The regulations may prescribe schemes regulating the use of words and expressions used in the labelling of any type of beef intended for sale or beef for sale to indicate the type of beef, the quality of beef or any other characteristic of the beef.
(2)  Without limiting subsection (1), the regulations prescribing a scheme may:
(a)  specify the type of beef that the scheme applies to, or
(b)  specify the requirements for labelling beef with a word or expression indicating the type, quality or any other characteristic of the beef, or
(c)  specify any other conditions relating to the use of a word or expression indicating the type, quality or any other characteristic of the beef, or
(d)  prohibit activities in relation to the labelling of beef, or
(e)  require records to be kept in relation to the labelling of beef.
(3)  This section does not limit the operation of the provisions of this Act relating to food safety schemes.
(4)  In this section:
beef means the whole or any part of the carcase of any bovine animal.
23B   Misleading and deceptive conduct in relation to beef
(1)  For the purposes of section 18 (1), a person carrying on a food business is taken to have engaged in conduct that is misleading or deceptive (or is likely to mislead or deceive) in relation to the advertising, packaging or labelling of beef intended for sale, or in relation to the sale of beef, if:
(a)  the person does not use AUS-MEAT language consistently (unless the person is complying with a scheme prescribed under section 23A), or
(b)  the person voluntarily adopts, but does not consistently comply with, a scheme prescribed under section 23A, or
(d)  the beef is advertised, packaged or labelled with the word “manufacturing” and does not also include the words “suitable for mince only”.
(2)  For the purposes of subsection (1) (a), a person does not use AUS-MEAT language consistently if:
(a)  the person advertises, packages, labels or sells beef described by means of AUS-MEAT language, and
(b)  other beef advertised, packaged, labelled or sold by that person is described by any other means that does not include a description by means of:
(i)  AUS-MEAT language, or
(ii)  a consumer descriptor.
(3)  For the purposes of subsection (1) (b), a person voluntarily adopts, but does not consistently comply with, a scheme prescribed under section 23A, if:
(a)  the person labels any beef in accordance with a scheme prescribed under section 23A or advertises, packages or sells beef that has been labelled in accordance with such a scheme, and
(b)  the person does not comply with that scheme in respect of all beef to which the scheme applies that is advertised, packaged, labelled or sold by that person.
(4)  This section does not limit the operation of section 18 (1).
(5)  In this section:
AUS-MEAT language means any words, letters or symbols (other than the words beef, steak or veal or any words indicating a cooking method) that (whether alone, in combination or together with other words, letters or symbols) are used by the AUS-MEAT manual to designate or indicate beef as belonging to a particular type, quality, classification, category, cut or grade.
AUS-MEAT manual means the Australian Meat Industry Classification System (Manual 1) (2009 edition) published by AUS-MEAT Limited (ACN 082 528 881) or, if a replacement document is prescribed for the purposes of this definition, that document.
beef means the whole or any part of the carcase of any bovine animal.
consumer descriptor means a word or expression prescribed by the regulations that is used to describe beef that is of a cut prescribed by the regulations.
23C   False descriptions of beef
(1)  For the purposes of section 18 (2), beef is falsely described if:
(a)  it is described by means of AUS-MEAT language that is referable to beef of a particular type, quality, classification, category, cut or grade and:
(i)  it has not been assessed in accordance with the requirements of the AUS-MEAT manual, or
(ii)  it does not comply with the standards set out in the AUS-MEAT manual, with respect to beef of that type, quality, classification, category, cut or grade, or
(b)  it is described by means of a word or expression that is regulated in accordance with a scheme prescribed under section 23A and the description does not comply with the requirements of the scheme, or
(c)  it is described by means of a word or expression that is prescribed for the purposes of the definition of consumer descriptor in section 23B and the beef cannot be described as being of the cut that is prescribed in relation to that word or expression.
(2)  This section does not limit the operation of section 18 (2).
(3)  In this section:
AUS-MEAT language has the same meaning as it has in section 23B.
AUS-MEAT manual has the same meaning as it has in section 23B.
beef means the whole or any part of the carcase of any bovine animal.
23D   Exemptions for restaurants, take-away food shops and similar outlets
(1)  Subject to subsection (2), any person selling beef that has been cooked and is intended for immediate consumption (including, but not limited to, restaurants and take-away food shops) is exempt from sections 23B and 23C.
(2)  The regulations may prescribe any persons or classes of persons in respect of which the exemption provided by this section is not to apply from the date specified in the regulations.
Division 3 Defences
24   Defence relating to publication of advertisements
(1)  In any proceedings for an offence under this Part in relation to the publication of an advertisement, it is a defence for a person to prove that the person carried on the business of publishing or arranging for the publication of advertisements and that the person published or arranged for the publication of the advertisement in question in the ordinary course of that business.
(2)  Subsection (1) does not apply if the person:
(a)  should reasonably have known that the publication of the advertisement was an offence, or
(b)  had previously been informed in writing by the Food Authority that publication of such an advertisement would constitute an offence, or
(c)  is the proprietor of a food business or is otherwise engaged in the conduct of a food business for which the advertisements concerned were published.
25   Defence in respect of food for export
(1)  In any proceedings for an offence under this Part involving a contravention of or failure to comply with a provision of the Food Standards Code in relation to food, it is a defence for a person to prove that:
(a)  the food in question is to be exported to another country, and
(b)  the food complies with the laws in force at the time of the alleged offence in the place to which the food is to be exported, being laws that deal with the same subject-matter as the provision of the Food Standards Code concerned.
(2)  This section does not apply to food that was originally intended for export but was sold in this State.
26   Defence of due diligence
(1)  In any proceedings for an offence under this Part, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the person or by another person under the person’s control.
(2)  Without limiting the ways in which a person may satisfy the requirements of subsection (1), a person satisfies those requirements if it is proved:
(a)  that the commission of the offence was due to:
(i)  an act or default of another person, or
(ii)  reliance on information supplied by another person, and
(b)  that:
(i)  the person carried out all such checks of the food concerned as were reasonable in all the circumstances, or
(ii)  it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person, and
(c)  that the person did not import the food into this State from another country, and
(d)  in the case of an offence involving the sale of food, that:
(i)  the person sold the food in the same condition as when the person purchased it, or
(ii)  the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act or the regulations.
(3)  In subsection (2) (a), another person does not include a person who was:
(a)  an employee or agent of the defendant, or
(b)  in the case of a defendant that is a body corporate, a director, employee or agent of the defendant.
(4)  Without limiting the ways in which a person may satisfy the requirements of subsection (1) or (2) (b) (i), a person may satisfy those requirements by proving that:
(a)  in the case of an offence relating to a food business for which a food safety program is required to be prepared in accordance with the regulations, the person complied with a food safety program for the food business that complies with the requirements of the regulations, or
(b)  in any other case, the person complied with a scheme (for example, a quality assurance program or an industry code of practice) that was:
(i)  designed to manage food safety hazards and based on Australian national or international standards, codes or guidelines designed for that purpose, and
(ii)  documented in some manner.
27   Defence of mistaken and reasonable belief not available
In any proceedings for an offence under Division 2, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence.
28   Defence in respect of handling food
In any proceedings for an offence under section 13, 16 (1) or 17 (1), it is a defence if it is proved that the person caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe or unsuitable.
29   Defence in respect of sale of unfit equipment or packaging or labelling material
In any proceedings for an offence under section 20 (1) or (2), it is a defence if the person proves that the person reasonably believed that the equipment or material concerned was not intended for use in connection with the handling of food.