Local government enforcement agencies and authorised officers are responsible for ensuring compliance and enforcement of food businesses with food allergen management and declaration requirements. Show
Robust allergen management in food businesses is required to ensure susceptible individuals are not placed at risk of an allergic reaction when consuming food. Substances in a food that cause an allergic reaction are called “allergens”. For sensitised individuals, food allergens can trigger allergic reactions that range from mild to severe. Some individuals may be allergic to more than one food allergen. Eating even the smallest amount of the allergen, for some sensitised individuals, can cause a life threatening allergic reaction called anaphylaxis. Anaphylaxis is usually rapid in onset, and can sometimes be fatal. All food businesses are responsible for compliance with the legislative requirements specified for declaring allergens in their food; including where a customer has requested a food to not contain a specific food allergen ingredient. A sensitised individual needs to identify and manage their exposure to food allergens. Common foods that cause allergic reactionsThe most common foods that can cause allergic reactions in Australia and New Zealand include:
Free online allergen training for authorised officersFood Allergy Aware - all about allergen (external site) is a free online training course developed for local government authorised officers to improve food allergy management in the food service and food manufacturing sectors. The website provides an overview of the legislative context for food allergens, and other tools to assist authorised officers to help to improve practises around food allergen management and to educate the food service and food manufacturing sectors about food allergen management. Training is also available for:
Compliance and enforcement of allergen declarationsThe Guideline for allergen declarations by food businesses - Food Act 2008 (PDF 242 KB) | (Word 411 KB): contains information on the application of the Food Act 2008 (WA) in relation to allergen declarations. Designed to assist enforcement agencies in applying a consistent approach, providing the background to food allergen declarations and labelling provisions detailed in the Australia New Zealand Food Standards Code. Key standards of the Food Safety Code include:
Section 22 of the Food Act specifies the offence for not complying with the Food Standards Code. Section 16 of the Food Act – ‘False description of food’ will apply in relation to selling food with undeclared allergens, if food can cause physical harm to the food allergic individual, who has requested the food to not contain that food allergen. Section 23 of the Food Act expands on the circumstances in which food may be falsely described. Additionally, other sections may apply including section 19 and section 20 of the Food Act. Determining the sections of legislation that may apply is dependent on the circumstances of the individual case. The information below describes key sections of legislation relevant to the compliance and enforcement of allergen declarations in food businesses. Unsafe and unsuitable foodThe Department of Health recognises that there are unique challenges for enforcement agencies in relation to the regulation of allergen declarations in food businesses. One of the main challenges is in understanding the Food Act meanings for “unsafe food” and “unsuitable food”; and other risks. To clarify, “unsafe food” as described in section 12 Meaning of “unsafe” in relation to food, subsection (2) of the Food Act, states the following: 12(2) However, food is not “unsafe” for the purposes of this Act merely because it’s 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.” Additionally, the meaning of “unsuitable” as described in section 13 of the Food Act is as follows: 13. Meaning of “unsuitable” in relation to 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 (b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use (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. However, the presence of undeclared allergens in a food is a risk due to the severe consequences that can occur if this product is consumed by sensitised individuals. Food allergic individuals rely on the allergen declaration information to make decisions about foods they buy and consume. The FSANZ Review of the Regulatory Management of Food Allergens (2010, p i) (external site) states that “Rigorous declaration requirements are considered the most appropriate risk management option for food allergens since even small amounts of the allergen may trigger allergic reactions.” The Code requires these declarations to alert consumers when the food contains substances that may cause adverse reactions in sensitised individuals. Compliance with Section 22 of the Food ActThe Food Act requires under Section 22 that all food businesses comply with the provisions of the Code. This includes allergen declaration requirements specified in clause 4 of Standard 1.2.3 of the Code – Information requirements – warning statements, advisory statements and declarations. Standard 1.2.3 applies across all foods, including those that are exempt from bearing an ingredient label. Compliance with Standard 1.2.3 of the CodeStandard 1.2.3 of the Code sets out advisory, warning statements and declarations which must be made in relation to certain foods or foods that contain certain substances. Food businesses must declare certain substances listed in clause 4 of Standard 1.2.3 of the Code below, which may be present as an ingredient, or an ingredient of a compound ingredient; or the substance is used as a food additive, or an ingredient or component of a such a substance; or a substance or food used as a processing aid or an ingredient or component of such a substance or food. Schedule 10 also sets out specific requirements for the naming of ingredients.
Food for retail saleRetail sales – includes retail sale of a food, and a sale of food that is not retail sale if the food is sold as suitable for retail sale without any further processing, packaging or labelling. Food for sale in a package must have allergen declarations unless:
For food required to bear a label under clause 6 of Standard 1.2.1, the allergen declaration must be made on the label. For food for retail sale that is not required to bear a label, then under Standard clause 9(6) of Standard 1.2.1, the allergen declaration must be displayed in connection with the display of food or provided to the purchaser on request. Requirements set out for food sold in a hamper and foods sold in a vending machine are as follows:
Food for sale to caterersIn this instance, caterers means a person, establishment or institution e.g. catering establishment, restaurant, canteen, school, hospital etc. which handles or offers food for immediate consumption. Food sold to caterers must provide allergen declarations on the label for foods that must bear a label under clause 12 of Standard 1.2.1. For foods sold to a caterer that do not need to bear a label under clause 12 of Standard 1.2.1, the allergen declaration must be provided with the food. Under clause 17 of Standard 1.2.1, a caterer can request any information to enable the caterer to comply with any compositional, labelling or declaration requirement of the Code. Other sale of foodThis applies to sales of food that are not intra-company transfer, foods for retail sale or foods for sale to caterers. Under clause 21 of Standard 1.2.1, a purchaser must be provided with any requested information (or any information required by a relevant authority) to enable the purchaser to comply with any compositional, labelling or declaration requirement of the Code in the sale of food or of another food using it as an ingredient. Assessing the compliance to Standard 1.2.3 of the Food Standards CodeAssessment of compliance to Standard 1.2.3 of the Code should be completed by the appropriate enforcement agencies in accordance with their internal compliance and enforcement policy. Situations such as routine food business assessments provide an ideal environment for an authorised officer to assess compliance with the Standard 1.2.3. Enforcement actionAn authorised officer with responsibility in the district where the food business is trading, is able to initiate enforcement action under the relevant provisions of the Food Act. The Food Act provides the following enforcement options regarding allergen declaration:
The appropriate enforcement action will depend on the severity and circumstances of the noncompliance. It is recommended that enforcement agencies follow their own compliance and enforcement policy to determine the appropriate action to be taken. In 2015, the City of Subiaco successfully prosecuted a food business that served an individual a dish containing nuts after the customer had specifically asked whether any of the dishes contained nuts. The basis of the prosecution was that under section 16 (2) of the Food Act the food business did not demonstrate they were allergy aware, in that:
The City of Subiaco released the Food Allergies Kit for Food Businesses (external site) to improve compliance. Another recent case involved the conviction of a catering company for breaching Victoria’s Food Act 1984 - false description of a food. Details of the case included:
Guidelines for authorised officers
Guidelines for food businessesRefer to food allergen declarations for food businesses for a range of resources designed for food businesses. |