Liability for Breaching the Food Act 2006 and Food Standards Code

The Brisbane City Council is committed to promoting safe food practices in order to support small businesses and protect the health of the city’s residents and visitors. When concerns are raised that safe food practices are not being implemented, the Food Act 2006 (herein “the Act”) comes into question. The Act is the primary food safety legislation in Queensland and applies to all Queensland food businesses.

Businesses that sell food must ensure the food for sale is safe and suitable for human consumption, as well as ensuring that business to not mislead customers in relation to the sale of that food. Failing to comply with food safety laws and practices can result in significant penalties, ranging from fines, loss of business, and in some cases, imprisonment.

As there are serious consequences for breaching a section of the Act and/or the food standards code, you should obtain legal advice. The most commonly heard breaches relate to food, specifically Chapter 2 of the Act. It comprises of serious offences and other offences. The most serious offences include:

• Handling of food in an unsafe way;
• Sale of unsafe food; and
• False description of food.

If you have been accused of a serious offence relating to food, the maximum penalty is 1,350 penalty unit (1 penalty unit = $133.45) units or two years imprisonment. Other offences include:

• Handling and sale of unsafe food;
• Handling and sale of unsuitable food;
• Misleading conduct relating to sale of food;
• Sale of unfit equipment or packaging or labelling material;
• Failure to comply with the food standards code; and
• False descriptions of food.

The maximum penalties for these offences range from 550 to 700 penalty units. However, these penalties do not carry a term of imprisonment.

In assessing your liability, it is also important pay attention to the available defences. They include:

• Defence relating to publication of advertisements;
• Defence relating to food for export;
• Defence of due diligence;
• Defence relating to handling of food; and
• Defence relating to sale of unit equipment of packing or labelling material.

Section 23 and 24 of the Criminal Code 1899 does not apply. Those sections are:

• Intention; and
• Mistake of fact.

Accordingly, there is not defence if you did not intend for food to be unsafe nor that you were unaware that the food was unsafe.