Food Act 2003 (Tas)

Food Act 2003 An Act to ensure the provision of food that is safe and fit for human consumption and to promote good nutrition and for related matters [Royal Assent 16 April 2003] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Food Act 2003 . 2. Commencement This Act commences on a day to be proclaimed. 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 jurisdiction of the Food Standards Code. 4. Interpretation (1) In this Act, unless the contrary intention appears – accredited laboratory means a laboratory accredited by the National Association of Testing Authorities Australia to carry out the relevant analysis; 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 review body means the Magistrates Court (Administrative Appeals Division); approved means approved by the Director of Public Health; approved form means a form that – (a) is approved by the Director of Public Health; or (b) contains information approved by the Director of Public Health; authorised officer means a person appointed under Division 3 of Part 8 ; court means the Magistrates Court; Director of Public Health means the person appointed as Director of Public Health under section 6 of the Public Health Act 1997 ; enforcement agency means the Director of Public Health or a council; 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; food has the meaning given by section 5 ; food business has the meaning given by section 6 ; food safety auditor means a person approved under Division 1 of Part 6A ; food safety program means a program that complies with the requirements specified in the regulations; 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 adopted or incorporated by the regulations; food transport vehicle means a vehicle used for the transport of food for sale (or of food ultimately intended for sale); 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; mobile structure, in relation to a food business, means a vehicle, trailer, cart, tent, stall, booth, pontoon, table, barbeque, pizza oven, or other mobile structure, that is not permanently fixed to the whole, or part, of a building, structure or land, in, at or from which food is, or is intended to be, handled or sold; occupier includes a person in charge of, or operating, any premises; 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 (ca) a mobile structure; 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 ; prohibition order means a prohibition order issued 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; public institution means a prison within the meaning of the Corrections Act 1997 , detention centre within the meaning of the Youth Justice Act 1997 , hospital, nursing home or any other health facility prescribed in the regulations; public notice means a notice published in the Gazette; recall order means an order under Part 3 requiring the recall or disposal, or both, of any food; record means a record of any kind, including a disk, tape or other article from which information is capable of being reproduced (with or without the aid of another article or device); regulations means the regulations made and in force under this Act; repealed Act means the Food Act 1998 ; sample means a sample taken under this Act; 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 or inmates in public institutions; or (p) sell for the purpose of resale; this jurisdiction means the State of Tasmania; 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. 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 other substance or thing declared to be food under a declaration in force under the Food Standards Australia New Zealand Act 1991 of the Commonwealth and prescribed by the regulations for the purposes of this paragraph – 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 (other than a business, enterprise or activity that is primary food production) 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, or on premises that are associated with the premises on which the food 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, raised, cultivated, picked, harvested, collected or caught; or (b) the packing or treating of food on premises that are associated with the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught if carried out by a person who has purchased the food, or who is carrying out the packing or treating under contract (not being a contract of employment); or (c) the sale or service of food directly to the public; or (d) any other food production activity that is prescribed by the regulations for the purposes of this subsection. (3) For the purposes of this section, premises are associated with each other if they form part of a single enterprise. 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. Application of Act to primary food production (1) Parts 5 and 7 do not apply to or in respect of primary food production. (2) The functions conferred on authorised officers by Parts 4 and 6 may only be exercised in respect of primary food production – (a) to enable the investigation and prosecution of offences against this Act; or (b) in connection with the making or enforcement of emergency orders under Part 3 . 11. Application of Act to water suppliers (1) The following provisions of this Act do not apply to or in respect of the supply of water for human consumption through a reticulated water system by a water supplier: (a) sections 13 , 15 , 16(1) , 17(1) , 18 , 19 , 20 and 21 (but only to the extent to which it requires compliance with the requirements of the Food Safety Standards); (b) Parts 5 and 7 . (2) In this section, water supplier means – (a) a body that is constituted by or under an Act and that has as its function, or as one of its functions, the supply of water for human consumption; or (b) a person that 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. Act binds Crown This Act binds the Crown in right of the State and also, so far as the legislative power of Parliament permits, in all its other capacities. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. 14. Sale of unsafe food (1) A person must not sell food that the person knows is unsafe. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (2) A person must not sell food that the person ought reasonably to know is unsafe. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. (3) A person must not sell food that the person knows – (a) is falsely described; and (b) will cause, or is likely to cause, physical harm to a consumer of the food who relies on the description. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (4) A person must not sell food that the person ought reasonably to know – (a) is falsely described; and (b) is likely to cause physical harm to a consumer of the food who relies on the description. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (2) A person must not sell food that is unsafe. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 400 penalty units; or (b) a body corporate, a fine not exceeding 2 000 penalty units. (2) A person must not sell food that is unsuitable. Penalty: In the case of – (a) an individual, a fine not exceeding 400 penalty units; or (b) a body corporate, a fine not exceeding 2 000 penalty units. (3) For the purposes of this section, it is immaterial whether the food concerned is safe. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (4) Nothing in subsection (2) or (3) limits the generality of subsection (1) . 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (2) A person must not sell any food that does not comply with any requirement of the Food Standards Code that relates to the food. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (3) A person must not sell or advertise any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 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 15(3) or (4) , food is falsely described for the purposes of section 15(3) or (4) 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 jurisdiction 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 jurisdiction. 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 Director of Public Health, a council or an authorised officer 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 jurisdiction. 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 the jurisdiction 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. (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 subsection (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 –