Food Law Prosecutions – Chocolate Bar Sold By Unregistered Food Company Causes Anaphylactic Reaction



Russell Kennedy Lawyers was recently hired by Brimbank City Council to sue the owner of an unregistered food business as “Spoiled Sweet Co” operating in Sunshine North (catering premises) for breach of Food Law 1984 (Vic) (Act). The company sold a pasture tray that contained a Kinder Bueno Bar to a customer who requested that the tray contain no nuts but only traces of nuts. A Kinder Bueno bar consists of 10.5% hazelnuts. The candy bar was consumed by a boy who had an anaphylactic reaction resulting in hospitalization.

The outcome of the case highlights the significant penalties that can be imposed when a food business owner sells food that is not of the kind or substance required by the buyer and fails to register the premises with the Council in accordance with the law.

With the growing number of online food businesses, especially small ones, it is important that consumers verify with any owner before making any purchase that they are registered or, when in doubt, contact the appropriate council. Registration is an important safeguard in the Act to ensure that a food premise is known to the Council and that food safety risks associated with the food industry are appropriately assessed and regulated.

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The Accused was charged with an offense under section 14 (1) of the Act which provides

Sale of food not in accordance with the buyer’s request

  1. A person shall not, in the course of the operation of a food business, supply food by sale if the food is not of the kind or substance required by the purchaser.

The maximum penalty for the offense is $ 40,000.00 in the case of an individual.

The Accused was also charged with an offense under section 35A (1) (a) of the Act which provides

Obligation to be registered or to notify the registration authority

  1. The owner of a food business must not allow the business to operate from a food premises – (a) which is not registered with the registration authority -… (ii) in the the case of a fixed room which is the main room in relation to a temporary food room, mobile food room or automatic food distributor, in accordance with division 3 or 4; Where…

The maximum penalty for the offense is 120 sentence units (at the time of the offense $ 19,826.40).

Substantive facts

The food room is a class 2 food room serving higher risk food products.

“Spoiled Sweet Co” is a food business under section 4B of the law, in that it is a business that involves the handling and sale of food.

On October 27, 2020, Council received an email from the Department of Health and Human Services regarding an anaphylaxis investigation regarding “Spoiled Sweet Co” and the provision of a pasture box on October 24, 2020.

The informant searched Council records and was unable to identify a food premises registered with this business name or with the name of the owner.

The anaphylaxis notification concerned an unregistered food premise marketed as ‘Spoiled Sweet Co’, through which a mother ordered a box of medium mixed grazing. The mother requested that no nuts be included due to her son’s allergy. The mother said the traces of nuts were good.

Council environmental health officers searched the Internet for all “Spoiled Sweet Co” advertisements and identified an active Facebook page and Instagram account announcing that food establishments marketed as “Spoiled Sweet Co” were. registered under the Food Act. Price lists and menus were announced. Customers were encouraged to contact the company 48 hours before an event.

The mother indicated that the pasture was delivered while she was on the phone and she turned and saw her son eating an item in the pasture before he started to get sick. She asked her son what he was eating with her son pointing to a chocolate bar that looked like a Kinder Bueno bar.

The boy had to be administered an EpiPen and an ambulance was called and the boy was taken to Sunshine Hospital. After investigation, it was identified that a Kinder Bueno bar contains the allergen hazelnuts (10.5%).

The boy made a full recovery. The Accused had experience in the food industry.

Decision of the district court

On September 30, 2021, the accused appeared in Sunshine Magistrates’ Court via Webex and pleaded guilty to both counts.

The case was heard before Her Honor Magistrate Grubissa who found the charges proven. The Accused had no previous case.

Russell Kennedy Lawyers submitted to the Court the following regarding the subsection 14 (1) charge:

  • it was a serious fault which could have had catastrophic consequences;
  • a strong message of general deterrence had to be sent, especially in light of the number of these grazing plateau type enterprises popping up; and
  • the Accused showed little remorse.

With respect to the charge under Section 35A (1) (a), it was submitted that:

  • the purpose of registration is to ensure that Council is satisfied that a food premises complies with the Act and the Food Standards Code;
  • whereas this is a serious risk to public health when food companies operate without being registered and are therefore potentially unknown to the Council; and
  • the fact that the Accused announced that her business was registered when she was not is an aggravating factor.

The Accused claimed that she had limited means, that she suffered from depression and anxiety and various mental health problems. The Accused had no documents to support these allegations and His Honor adjourned the part of the plea heard to examine any documents as well as proof of his income.

The case was settled on November 25, 2021. The Accused provided no further documentation. His Honor imposed a fine without conviction on each count and ordered the Accused to pay the court costs.

The fine imposed in connection with the subsection 14 (1) charge was $ 2,500.

The fine imposed on the charge under Section 35A (1) (a) was $ 1,750.00.

Costs ordered were $ 3,750.00. The total fines and costs were $ 8,000.00.

The owners of a food business, regardless of its size, should be made aware of any inquiries from a buyer and should also comply with registration requirements.


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