Food Act 2003 (NSW)

Food Act 2003 No 43 An Act to regulate the handling of food for sale and the sale of food and to provide for the application of the Australia New Zealand Food Standards Code in New South Wales; to repeal the Food Act 1989; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Food Act 2003. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act include the following— (a) to ensure food for sale is both safe and suitable for human consumption, (b) to prevent misleading conduct in connection with the sale of food, (c) to provide for the application in this State of the Food Standards Code. 4 Definitions (1) In this Act— advertisement means— (a) any words, whether written or spoken, or (b) any pictorial representation or design, or (c) any other representation by any means at all, used or apparently used to promote, directly or indirectly, the sale of food. analysis includes any examination or testing of food or any other thing. animal includes an amphibian, bird, crustacean, fish, mollusc or reptile. appropriate enforcement agency means, in relation to the provision in which the expression is used, the enforcement agency prescribed by the regulations for the purposes of that provision. approved analyst means a person approved under Division 4 of Part 6. approved form means the form approved from time to time by the Food Authority. approved laboratory means a laboratory approved under Division 3 of Part 6. authorised justice has the same meaning as in the Search Warrants Act 1985. authorised officer means a person appointed under Division 3 of Part 9. Chief Executive Officer means the person employed in the Public Service as the Chief Executive Officer of the Food Authority. Commonwealth Food Authority has the same meaning as Authority in the Food Standards Australia New Zealand Act 1991 of the Commonwealth. enforcement agency means— (a) the Food Authority, or (b) a relevant body appointed as an enforcement agency under Division 2 of Part 9, or (c) any person or body, or a person or body within a class of persons or bodies, prescribed by the regulations for the purposes of this definition (other than a relevant body within the meaning of Division 2 of Part 9). equipment means the whole or part of— (a) any utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in or in connection with the handling of food, or (b) any substance, utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in cleaning anything referred to in paragraph (a). examine includes weigh, count, test or measure. exercise a function includes perform a duty. food has the meaning given by section 5. Food Authority means the NSW Food Authority constituted under Part 9. Food Authority Fund means the fund established under section 117A. food business has the meaning given by section 6. food safety auditor means a member of staff of the Food Authority authorised under Division 1 of Part 7, or another person approved under that Division, to be a food safety auditor. food safety scheme means a food safety scheme prescribed by the regulations in accordance with Part 8. Food Safety Standards means the standards contained in Chapter 3 of the Food Standards Code. Food Standards Code means the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 of the Commonwealth, as modified in accordance with regulations referred to in section 140 or 141. food transport vehicle means a vehicle used for the transport of food for sale. Forum means the Food Regulation Forum established under Division 3A of Part 9. function includes a power, authority or duty. handling of food includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food. improvement notice means an improvement notice issued under Part 5. label includes any tag, brand, mark or statement in writing or any representation or design or other descriptive matter on or attached to or used or displayed in connection with or accompanying any food or package. package includes any container or wrapper in or by which food intended for sale is wholly or partly encased, covered, enclosed, contained or packed and, in the case of food carried or sold or intended to be carried or sold in more than one package, includes every such package. premises includes— (a) land (whether or not vacant), or (b) the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature), or (c) a pontoon, or (d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food). primary food production has the meaning given by section 7. private corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth. private subsidiary corporation means a private corporation in which the Food Authority has a controlling interest. prohibition order means a prohibition order made under Part 5. proprietor of a food business means— (a) the person carrying on the food business, or (b) if that person cannot be identified the person in charge of the food business. recall order means an order under Part 3 requiring the recall or disposal, or both, of any food. register of offences means the register of offences kept under Part 10A. register of penalty notices means the register of penalty notices kept under Part 10A. sell includes— (a) barter, offer or attempt to sell, or (b) receive for sale, or (c) have in possession for sale, or (d) display for sale, or (e) cause or permit to be sold or offered for sale, or (f) send, forward or deliver for sale, or (g) dispose of by any method for valuable consideration, or (h) dispose of to an agent for sale on consignment, or (i) provide under a contract of service, or (j) supply food as a meal or part of a meal to an employee, in accordance with a term of an award governing the employment of the employee or a term of the employee's contract of service, for consumption by the employee at the employee's place of work, or (k) dispose of by way of raffle, lottery or other game of chance, or (l) offer as a prize or reward, or (m) give away for the purpose of advertisement or in furtherance of trade or business, or (n) supply food under a contract (whether or not the contract is made with the consumer of the food), together with accommodation, service or entertainment, in consideration of an inclusive charge for the food supplied and the accommodation, service or entertainment, or (o) supply food (whether or not for consideration) in the course of providing services to patients in public hospitals (within the meaning of the Health Services Act 1997) or inmates in correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999), or (p) sell for the purpose of resale. unsafe has the meaning given by section 8. unsuitable has the meaning given by section 9. vehicle means any means of transport, whether self-propelled or not, and whether used on land or sea or in the air. (2) For the purposes of this Act, food or equipment that is displayed for the purpose of being offered as a prize or reward or given away for the purpose of advertisement or in the furtherance of trade or business is taken to have been displayed for sale by the owner of the food or equipment. (3) Notes included in this Act do not form part of this Act. 5 Meaning of "food" (1) In this Act, food includes— (a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared), or (b) any substance or thing of a kind used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a), or (c) any substance used in preparing a substance or thing referred to in paragraph (a) (other than a substance used in preparing a living thing) if it comes into direct contact with the substance or thing referred to in that paragraph, such as a processing aid, or (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum, or (e) any substance or thing declared to be a food under a declaration in force under section 6 of the Food Standards Australia New Zealand Act 1991 of the Commonwealth, whether or not the substance, thing or chewing gum is in a condition fit for human consumption. (2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth. (3) To avoid doubt, food may include live animals and plants. 6 Meaning of "food business" In this Act, food business means a business, enterprise or activity that involves— (a) the handling of food intended for sale, or (b) the sale of food, regardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature or whether it involves the handling or sale of food on one occasion only. 7 Meaning of "primary food production" (1) In this Act, primary food production means the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes the following— (a) the transportation or delivery of food on, from or between the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught, (b) the packing, treating (for example, washing) or storing of food on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught, (c) the storage of food in a silo that is not connected with a food processing operation and the transportation or delivery of food from, between or to such silos, (d) the sale of livestock at saleyards and the transportation of livestock to and from saleyards, (e) any other food production activity that is regulated by or under an Act prescribed by the regulations for the purposes of this subsection. (2) However, primary food production does not include— (a) any process involving the substantial transformation of food (for example, manufacturing or canning), regardless of whether the process is carried out on the premises on which the food was grown, cultivated, picked, harvested, collected or caught, or (b) the sale or service of food directly to the public, or (c) any other food production activity that is prescribed by the regulations for the purposes of this subsection. Note— Section 7 (2) (c) enables regulations to be made prescribing food production activities that are not included in the definition of primary food production. Such a regulation might be made, for example, to prescribe a food production activity in relation to which significant and unmanaged food safety hazards have been identified. 8 Meaning of "unsafe" food (1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming— (a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use, and (b) nothing happened to it after that particular time and before being consumed by the person that would prevent its being used for its reasonable intended use, and (c) it was consumed by the person according to its reasonable intended use. (2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons. (3) In subsection (1), processes include processes involving storage and preparation. 9 Meaning of "unsuitable" food (1) For the purposes of this Act, food is unsuitable if it is food that— (a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use, or (b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use, or (c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption, or (d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food. (2) However, food is not unsuitable for the purposes of this Act merely because— (a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical, or (b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code, or (c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code, or (d) it contains any matter or substance that is permitted by the Food Standards Code. (3) In this section, slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food. 10 (Repealed) 11 Application of Act to water suppliers (1) The following provisions of this Act do not apply to a water supplier in respect of the supply of water for human consumption through a reticulated water system— (a) sections 13, 15, 16 (1), 17 (1), 18, 19, 20 and 21 (but only to the extent to which section 21 requires compliance with the requirements of the Food Safety Standards), (b) Parts 5, 7 and 8. (2) In this section, water supplier means— (a) a body that is constituted by or under an Act and that has as or as one of its functions the supply of water for human consumption, or (b) a person who is employed or engaged by such a body to supply water for human consumption, or (c) any body or person prescribed by the regulations for the purposes of this section. 12 Relationship to other laws (1) If, by or under any other Act (whether passed before or after the commencement of this section) any provision is made in relation to food for sale, being a provision that is inconsistent with the provisions of this Act or the regulations under this Act, the provisions of this Act or the regulations prevail to the extent of the inconsistency. (2) Any statutory rule relating to any of the following matters must be submitted to the Minister before being made— (a) the wholesomeness, cleanliness or freedom from contamination of food, (b) the composition of, and standards for, food, (c) the cleanliness of vehicles, premises or places in which food is sold or handled for sale. (3) No such statutory rule may be made unless the Minister approves of such of its provisions as relate to any of those matters. (4) Failure to comply with any provision of this section does not affect the validity of a statutory rule. (5) In this section, statutory rule means a regulation, by-law, rule or ordinance made, or required by law to be approved or confirmed, by the Governor or made by a council. 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 accord