Food & Health Prosecution Discussion Group. Presented by Louisa Dicker Senior Associate Commercial Litigation & Dispute Resolution March 2018

Transcription

1 Food & Health Prosecution Discussion Group Presented by Louisa Dicker Senior Associate Commercial Litigation & Dispute Resolution March 2018

2 Not what the purchaser demanded: a review of food allergen case studies

3 Agenda > Food Act and Food Standards Code charges issues in allergens matters > Recent allergens cases and enquiries > Recent media articles > Investigation and Prosecution tips and tricks > Questions

4 Allergens Incident Unsafe or Unsuitable under the Food Act? > Unsafe under the Food Act? Section 4D > Unsuitable under the Food Act? See Section 4E

5 Charges commonly brought against an accused for allergen cases S10(1) - Knowingly falsely describing food cause (indictable charge) S10(2) - Knowingly falsely describing food sell (indictable charge) S10A(1) - Falsely describing food in other circumstances - 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 - (indictable charge) S10A(2) - Falsely describing food in other circumstances - 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 - (indictable charge) S14 - Sale of Food not complying with purchaser's demand

6 Charges commonly brought against an accused for allergen cases Food Standards Code > S16(1) FSC (1)(a) - Food handling (skills in food safety) > S16(1) FSC (1)(b) - Food handling (knowledge of food safety) > S16(1) FSC (1)(b)(i) - Food processing (contamination)

7 Case Study 1 > An 8 year old boy was a guest at a wedding reception held at a function centre with his family > The boy was anaphylactic to dairy, peanut and eggs. The boy's allergies were made known to the venue operator numerous times prior to the wedding reception, by and phone. > On the evening of the reception the boy's allergies were again made known to the venue operator and wait staff. > Meals served to the boy throughout the evening all contained dairy despite staff being told that he was anaphylactic to dairy, peanut and eggs. As those meals were unsuitable for him to consume, they were removed. > Fruit salad was arranged to be served to the boy for dessert. A waiter presented a white frozen dessert to the boy and advised that it was 'a dairy free treat'. The boy's mother tasted the dessert and said it tasted like ice cream.

8 Case Study 1 > The waiter replied 'I guarantee that this is a dairy free treat prepared by the chef' and said 'he was positive it was dairy free'. > On the promises of the waiter, the boy ate a teaspoon of the frozen white dessert. He immediately placed his hands into his mouth and stated it was itching him. Within 5 minutes of consuming the ice cream the boy became pale, welts and hives appeared on his skin, his eyes and lips became swollen, his eyes started watering and he developed an asthmatic cough. > The boy was driven to hospital and arrived minutes after consuming the dessert. The boy then spent several hours in hospital with crippling cramps and pain in his stomach and bowel, and had continued tightening of his throat as well repeated vomiting and diarrhoea. > It was later identified that the boy had been served Bulla vanilla ice cream containing dairy by mistake.

9 Case Study 1 Outcome > Charges issued by Council included: 10(1) Knowingly falsely describing food - cause 10A(1) Falsely describing food in other circumstances 14(1) Sale of food not complying with purchaser s demand The charges against the directors were withdrawn and those against the company proceeded. The charges against the Company Accused resolved by way of a plea hearing to a single charge of s.10a(1) 'must not cause food intended for sale to be falsely described (indictable charge). The remaining 2 charges were withdrawn. The Company Accused was convicted and fined $55,000 and ordered to pay costs of $7,000. Both the fine and costs were paid by the Company Accused.

10 Case Study 2 > A regular customer of a popular family restaurant chain, who is anaphylactic to sesame seeds ordered her usual meal, being a burger is served on a seedless brioche bun. > The burger was served to the customer, who noticed that the bun contained sesame seeds. The customer at this point informed the waiter that she was allergic to sesame seeds and would need hospitalisation if she consumed any. The waiter explained that the restaurant had only just implemented a new menu the day before and that burgers were now being served on a sesame seed bun. The waiter informed the customer that he would bring her another burger on a seedless bun. > The customer noted that the menu she was presented with did not have photographs of burgers on sesame seed buns. She observed that the photographs of the burgers were on seedless brioche buns.

11 Case Study 2 > A second burger was served to the customer. The customer noticed that the bun was Turkish bread, which also contained sesame seeds (but fewer sesame seeds than that of the first bun). She immediately informed the waiter who took the second burger away and said he would bring another burger on a seedless bun. > A third burger was served on a seedless gluten free bun however the same serving plate was used when serving all three burgers and there were residual sesame seeds on the plate which had now adhered to the base of the seedless gluten free bun.

12 Case Study 2 > Charges issued included a range of Food Act and FSC breaches: 10(1) Knowingly falsely describing food cause 10(2) Knowingly falsely describing food sell 10A(1) Falsely describing food in other circumstances (ought reasonably to know) - cause 10A(2) Falsely describing food in other circumstances (ought reasonably to know) - sell 14(1) Sale of food not complying with purchaser s demand 16(1) FSC (1)(a) Food handling (skills in food safety) 16(1) FSC (1)(b) Food handling (knowledge of food safety) 16(1) FSC (1)(b)(i) Food processing (contamination) > Watch this space before the Court at present

13 Case Study 3 > A customer purchased a dessert slice for her daughter [who was allergic to cashews and peanuts] from a local cafe. The customer asked the shop assistant if the slice contained nuts? And if so, which ones? > The shop assistant confidently informed the customer that the slice contained almonds. On that advice, the customer proceeded to purchase the slice. > At home later that day the daughter questioned her mother about the contents of the slice and bit into only a small portion of the slice, her mother assured her it was cashew and peanut free. the daughter immediately had an allergic reaction to the slice and required urgent medical attention and hospitalisation. > A sample of the slice was sent for analysis which revealed the composition of the slice was 60% cashew and only 3.6% almond.

14 Case Study 3 > It was later discovered that the employee who made the slice, whom was initially adamant that she used almonds, later said she could have picked up the wrong container and used cashew meal instead of almond meal. Outcome The complainant (both mother and daughter) were not willing to provide evidence including statements or evidence beyond the initial complaint.

15 Case Study 3 > Charges that could have been issued would have included a range of Food Act and FSC breaches 10(1) Knowingly falsely describing food cause 10(2) Knowingly falsely describing food sell 10A(1) Falsely describing food in other circumstances (ought reasonably to know) - cause 10A(2) Falsely describing food in other circumstances (ought reasonably to know) - sell 14(1) Sale of food not complying with purchaser s demand 16(1) FSC (1)(a) Food handling (skills in food safety) 16(1) FSC (1)(b) Food handling (knowledge of food safety) 16(1) FSC (1)(b)(i) Food processing (contamination)

16 Case Study 4 > Food item was an unpackaged salad (displayed in a bowl with a sign describing the salad as beetroot chick pea goats cheese ). There was no further information listing additional ingredients or allergens. > A customer purchased a salad, but did not advise of any allergens. > The salad also contained walnuts > The customer had a severe allergic reaction to the walnuts.

17 Case Study 4 Food Act 1984 (Vic) and the FSC > Section 4D of the Food Act specifically states food is not unsafe merely because it contains an allergen. > Section of the Code does not put an obligation on the proprietor to include each and every ingredient in the food, as would be required on packaged food.

18 Case Study 4 > If the proprietor had a label with the salad they would be required to comply with section of the Code. As a result, the proprietor had to also comply with section of the Code, relating to mandatory advisory statements and also of the Code, relating to mandatory declarations. > The mandatory declaration in of the Code includes the requirement to disclose tree nuts. The label/sign with the salad did not disclose the presence of walnuts and accordingly it failed to comply with sections and of the Code. > Our view was that, had the proprietor not put a label/sign with the salad there would not have been a breach of the Code, as the purchaser had not made any request for information.

19 Case Study 4 > Of note, section (6) of the Code provides complicating provisions in which: 1. If the proprietor does put a label with the food they must comply with section (6) of the Code; or 2. If the proprietor does not put a label with the food then they must only comply with section (6) of the Code if there is a request from the purchaser. > As a result of this, the proprietor is disadvantaged by placing a label/sign with unpackaged food. > not an infringeable offence

20 Case Study 5 > A group of friends dined for lunch at a popular restaurant. A customer (deceased) ordered a baked eggs dish (strictly non-dairy - due to severe allergic reactions to dairy). > Of the group dining for lunch, one friend also ordered the baked eggs dish meal but hers was ordered with goats cheese. > The waitress when serving the meals asked "who's having the dairy free?" and served the deceased with the dairy free dish. The deceased, minutes into consuming her meal started to experience her neck and lips swell. > An EPI pen was administered to the deceased and ambulance personnel attended. The deceased was unable to be revived and died in the ambulance, outside of the restaurant.

21 Case Study 5 > Charges issued included a range of Food Act and FSC breaches: 10(1) Knowingly falsely describing food cause 10A(1) Falsely describing food in other circumstances (ought reasonably to know) cause 14(1) Sale of food not complying with purchaser s demand

22 Case Study 5 > Important Factor - an autopsy report determined the cause of death as anaphylaxis, however it failed to determine the cause of the anaphylaxis Outcome > The charges against the directors were withdrawn. > The charges against the Company Accused proceeded by way of a plea to a single charge of s.14(1) 'sale of food that is not of the nature or substance demanded by the purchaser'. The remaining 3 charges were withdrawn. > The Company Accused was convicted and fined $15,000 and ordered to pay costs of $10,000. > Matter is currently waiting to go before the Coroner.

23 Media Articles Hospitals must report allergic reactions after food labelling error kills child The Age A devastating food labelling error that led to the death of a 10-year-old Melbourne boy has prompted the Victorian government to make it mandatory for hospitals to report cases of anaphylaxis. hospitals-must-report-allergicreactions-after-food-labelling-errorkills-child gzl88z.html Green Time Natural Coconut Drink contained undeclared dairy milk

24 Media Article Hospitals must report allergic reactions after food labelling error kills child The Age A devastating food labelling error that led to the death of a 10-year-old Melbourne boy has prompted the Victorian government to make it mandatory for hospitals to report cases of anaphylaxis. Keen soccer player Ronak Warty died a few days before Christmas in 2013 after consuming a coconut drink bought from an Asian supermarket in Burwood East. It was later discovered the beverage contained undeclared dairy milk. But because the hospital that treated Ronak did not alert the health department, the dangerous product remained on the shelves for another six weeks before being recalled. More than 320 people have died in Australia from anaphylaxis since 1997 and while medication and insect bites have typically posed the biggest danger, the number of people reacting to food such as nuts, dairy, eggs and seafood has been on the rise since the early '90s.

25 Media Article Hospitals must report allergic reactions after food labelling error kills child The Age Today almost half of the anaphylaxis presentations at Victorian emergency departments are foodrelated, a figure that has rapidly increased by around 14 per cent each year. In response to the trend and recommendations from the coroner, the Andrews government on Wednesday introduced a bill requiring all hospitals to report all suspected cases of anaphylaxis to the Department of Health and Human Services. "This will mean appropriate action can be taken, such as the recall of products that are not labelled correctly and could put people with allergies at risk," a spokeswoman for Health Minister Jill Hennessy said. Authorities were only made aware of the problem with the imported coconut drink in 2014 when contacted by support group Allergy & Anaphylaxis Australia. The group's chief executive, Maria Said, said anaphylaxis deaths often went unreported. She said she was aware of two fatalities in the past two months in NSW, including one that occurred after someone dined out.

26 Media Article Hospitals must report allergic reactions after food labelling error kills child The Age "Sometimes it gets totally missed whether it's a packaged food or a food that gets served in a food service facility after the person has disclosed their allergy. Those cases need to be investigated as well," Ms Said said. Ronak's parents told the coroner that they had been vigilant in monitoring his allergy to nuts and dairy, with his father Satyajit Warty, who has since died, even attending school camps so he could watch what his son ate. Mr Warty said when he bought the can of Green Time Natural Coconut Drink he had checked the label to ensure it did not contain any of his son's allergens. Ronak also checked the can. In a letter in 2014, Mr Warty said "in effect, my son was killed by a corporate entity by not declaring the product correctly."

27 Media Article Hospitals must report allergic reactions after food labelling error kills child The Age "Slater and Gordon Lawyers' Barrie Woollacott has represented a number of families who have lost children to anaphylaxis and said those who were involved in preparing and providing the food were not always vigilant about allergens. "People with food allergies, they need to feel safe about the food they are eating," he said. "It's important that other people get it right so they can rely on the food labelling." The proposed new anaphylaxis reporting laws are set to be in place by November next year.

28 Media Article Hospital breakfast caused allergic reaction which led to boy s death, coroner finds The Age allergic-reaction-which-led-to-boy-s-death-coroner-finds p4z1re.html Louis Tate was 13 when he died in Frankston Hospital

29 Media Article Hospital breakfast caused allergic reaction which led to boy s death, coroner finds The Age Louis Tate was just hours away from being discharged from Frankston Hospital when the 13-yearold was served breakfast. But what exactly was in that meal? And did it cause his death? Coroner Phillip Byrne concluded that the Mount Martha teenager suffered anaphylaxis from an undetermined allergen in the morning meal provided to him. Louis had an allergy to cow's milk, nuts and eggs. But it had been a point of contention if any of those things had tainted the Weet-Bix breakfast served to him while he was in hospital for an asthma episode in October However Louis' allergies were not recorded by the nurse on a whiteboard in the paediatric ward kitchen and he fell ill shortly after he was served breakfast by a personal care assistant who had been verbally instructed to use soy milk. His family say Louis would still be alive now if he had not eaten a spoonful of hospital breakfast that morning.

30 Investigation and prosecution tips and tricks > Is there a sample of the food available? > What was the dialogue between the customer and the wait staff? > Are the complainants on board to support Council with statements and evidence as required? > Education for premises and public regarding the difference between preference, intolerance and allergy

31 Questions? Louisa Dicker Senior Associate Litigation and Dispute Resolution Dandenong, VIC D: E: louisa.dicker@mk.com.au

32 @mklawyers Macpherson Kelley > New South Wales Sydney > Queensland Brisbane > Victoria Melbourne Dandenong mk.com.au Commercial Litigation & Dispute Resolution Private Clients Property & Construction Workplace Relations