Food recalls are costly to FMCG businesses, and their consumers. In 2019 there were over 70 notices issued as to food recalls. Most of the recalls were dealt with by the manufacturers, but not always, as some of them were in-house packaged products.
It is not just the manufacturer that has a duty to protect consumers – those who sell food also have a responsibility to consumers to protect them from harm.
The most important first step for any business selling food is to subscribe for email updates from the Ministry of Primary Industries, or MPI. By subscribing for email alerts, you can act quickly to remove food with safety issues from shelves and assist with recalling any offending food products. Subscribing to email updates alone is not enough, but a good first step, and each business needs an appropriate system in place to promptly deal with the recall of products.
The Food Act 2014 imposes duties on manufacturers and suppliers of goods. Relying on the manufacturer alone is not enough. There are offenses in the Act which impose substantial fines of up to $500,000, and include imprisonment as a consequence of any harm or potential harm that may be suffered by a consumer.
The offenses range in penalty from intentionally causing harm, through to the supplier of food being negligent in how they dealt with food. Negligence is a relatively low threshold. To be negligent does not mean that a supplier of food intended to cause any harm to a consumer, just that they did not take reasonable care.
As the offenses in the Act are criminal in nature, you cannot insure for any fine, only the cost of defending an action brought against you.
There have been very few prosecutions under the Act. MPI has in the early days of the new legislation instead used other methods of ensuring compliance including the issue of infringement notices, instead of prosecuting. Early last year a manufacturer was prosecuted and fined for failing to disclose an ingredient that caused an extreme allergic reaction to a meat product. If a supplier of those products, despite a recall notice, continued to supply food it is quite conceivable that the supplier could also be prosecuted.
To further assist with compliance MPI on its website has some helpful guidelines. MPI’s suggestions are helpful including by way of example making sure there is a designated staff member who takes responsibility for not just taking products off the shelves, but assisting with customers to return unsafe food to dispose of or send back to the manufacturer.
A food officer also has quite wide powers including seizing unsafe food, and the ability to on-charge their cost in doing so. If a food officer should seek to exercise any powers it is sensible to get legal advice in all circumstances. At the very least whether you agree or disagree with a food officer, if there is any conceivable risk to consumers a conservative approach of removing items from sale can avoid an issue becoming more serious.