What is the Food Act 2003 (NSW)? (2022 Update)

Jun 9, 2021
Reading Time: 3 minutes
Written by Jackie Olling

If your business serves or produces food, it’s important to know your obligations. Food can cause illness to consumers if it isn’t handled properly or if proper food safety measures aren’t adhered to. If you plan to open cafe, food production or any other business that handles food, it’s important to understand your legal obligations. These obligations can be found in the Food Act 2003 (NSW) (the Act).

In this article, we’ll outline the key provisions of the Act that you need to know. If you operate a food-related business in NSW, these are laws you need to be familiar with. If you want to know more about your rights and obligations under the Act, contact a business lawyer for further advice.

What is the Food Act 2003 (NSW)?

The purpose of the Act is to ensure that food for sale is both safe and suitable for human consumption. It also prohibits any misleading conduct surround food. The Act also gives effect to the Food Standards Code (the Code). The Act details the offences relating to food, orders that can be made against a business, and safety programs. It also lists the requirements to be able to register your food-related business.

Defining a ‘Food Business’

So what exactly is a food business? Does the Act apply all the way from the lines of production to the front end? The answer is yes, it does.

The Act defines a food business as a business that:

  1. Handles food intended for sale; or
  2. Sells food.

Subsequently, all food products – whether they are being made, packaged or sold for consumption are governed by the Act.

Food-related offences

The Act outlines many offences that relate to food. As a business owner, you should be aware of these, which include:

  • Handling or selling unsafe or unsuitable food;
  • Falsely describing the food for sale or misleading customers;
  • Not complying with the Food Standards Code; or
  • Incorrectly labelling your beef products, such as its quality, classification, category, cut or grade.

You can defend sanctions for violations of the Act if:

  • All reasonable precautions were taken and you exercised due diligence to avoid the offence
  • You exported food to another country where the food is not in breach of their law
  • Steps were taken to destroy or dispose of the food
  • You reasonably believed that the equipment used would not make the food unsafe.

Authorised Officials

The Act confers powers upon authorised officials appointed by the Food Authority. These officials are tasked with ensuring food businesses comply with the Act. These officials can enter and inspect your food premises, and take photos or audio recordings. They are also afforded a number of other powers under the Act.

If your premises is unclean or in a state of disrepair, the Act enables authorities to:

  • Serve an improvement notice. This requires that you take steps to ensure your premises is in a clean and sanitised state; and
  • Serve a prohibition order if you have not complied with the improvement notice within 24 hours. This notice prohibits you from handling or selling food.

You may be able to seek compensation where:

  • You have suffered a financial loss
  • The notice was served on insufficient grounds

Food Safety Programs

In New South Wales, every food business must have in place food safety programs and food safety supervisors (FSS). This is to ensure that you comply with safe food handling practices. Food safety programs identify potential risks that could result in unsafe or unsuitable food. In addition to this, you will learn how to minimise hazards.

Find out more about food safety programs and supervisors, along with other food handling requirements in our previous legal guide.

Registering your business

When starting a restaurant, cafe, or bar, it is important to register your food premises with your local Council. When you register your food premises, the Code applies. As a proprietor of a food business, it is important that you are aware of all relevant legislation. To ensure your compliance and if you need any further assistance relating to running a food premises, you should contact a business lawyer.

Running a food business means that not only do you want to make your products appealing to customers, you also have to ensure their safety. Whether you run a cafe, restaurant, or food processing business – it’s your responsibility to make sure it’s not only good enough to eat, but safe enough too.

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