Australia – a new recall protocol for the food industry

Food Standards Australia New Zealand (FSANZ) is an independent statutory body established by the Food Standards Australia New Zealand Act 1991 (Cth). FSANZ develops standards that regulate the food industry in Australia and New Zealand, such as use of ingredients, processing aids colouring, additives, vitamins and minerals. FSANZ is also responsible for some labelling requirements for packaged and unpackaged food.

Earlier this year FSANZ published a revised food industry recall protocol which provides guidance to Australian and New Zealand businesses in relation food recalls, including the key steps in a recall process and how to develop a written food recall plan.

Businesses who participate in the food industry in Australia should ensure their systems are in compliance with the new protocol.

Overview

The Food Industry Recall Protocol applies to all food business (other than primary food producers) whether or not the food is intended for sale, charity or for commercial purposes. The protocol identifies requirements relating to food recalls that are enforceable by State and Territory governments and regulatory agencies in Australia.

For example, under clause 12 of Standard 3.2.2 of the Australia New Zealand Food Standards Code, manufacturers, wholesalers and importers of food are required to:

(a)   have in place a system to ensure the recall of unsafe food;
(b)   set out this system in a written document (a ‘food recall plan’) and make this document available to an authorised officer upon request; and
(c)   comply with this system when recalling unsafe food.

The protocol provides guidance on what should be in a food recall plan.

A recall is required if a food item poses a safety risk.

If instead of posing a safety risk a food item has quality, ethical or suitability issues, a withdrawal from sale is required, which has less stringent requirements than a recall.
The protocol contemplates two types of recalls:

  • a ‘trade’ recall; and
  • a ‘consumer’ recall.

A trade recall relates to unsafe food which has not been made available to the general public but which has been sold to other food businesses, whereas a consumer recall involves the recovery of food product dispersed at all levels of the market including at the consumer level.

The need to take recall action may be triggered as a result of the food business’s own testing or from reports from third parties. The food business supplying the product has the primary responsibility for initiating a food recall.

The Australian Commonwealth Minister responsible for Consumer Affairs and the relevant State or Territory enforcement agency holds the legislative power to order a food recall in the event there is a serious public health and safety risk.

Key requirements

By way of example, the key responsibilities of manufacturers or importers in relation to a food recall typically include:

(a)   notifying FSANZ as well as the Australian State or Territory food enforcement agency in the place where the head office of the business is located;
(b)   obtaining and consolidating all necessary information about the food item concerned;
(c)   determining whether a consumer or trade level recall is required;
(d)   notifying trade customers (including any overseas customers) and the public (if a consumer level recall) about the recall. FSANZ recommends doing so through social media such as Twitter and Facebook as well as by customer loyalty programs;
(e)   retrieval of the unsafe food item from the supply chain and removal from sale;
(f)   disposal of the food product;
(g)   monitoring the effectiveness of the recall;
(h)   keeping appropriate records; and
(i)   issuing a report on the recall (an interim report is required within two weeks of a recall and a final report within one month of a recall) including the action taken to prevent a recurrence of the problem.

Under the protocol food distributors, retailers, State governments, local government, FSANZ and the Australian Competition & Consumer Commission (ACCC) also have responsibilities in relation to food recalls.

While recalls generally fall within the jurisdiction of the ACCC under the Australian Consumer Law, as a matter of administration and in recognition of the specialist expertise of FSANZ, food recalls are typically notified to FSANZ, which in turn will notify the Federal Minister responsible for Consumer Affairs via the ACCC.

For further information contact:

Peter Holloway
Peter Holloway
Partner, dispute resolution
Email | Profile
+61 3 9288 1693
Tim Monahan
Tim Monahan
Solicitor, dispute resolution
Email
+61 3 9288 1146
Iva Bacvic
Iva Bacvic
Solicitor, dispute resolution
Email
+61 3 9288 1917

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