What are the laws on repurposing or reclaiming recalled foods?

By John Thisgaard (FoodLegal Senior Associate) and Macy Greene (FoodLegal Researcher)

© Lawmedia Pty Ltd, December 2020

Food recalls are one of the largest contributors to food waste in Australia, as they involve the complete removal and disposal of unsafe products from traders and/or consumers. Where a recall is implemented due to defective labelling, an undeclared allergen, or some other issue that does not render the food itself unsafe to consume, can the recalled product be repurposed for usage elsewhere or for donating it to a charitable body such as Foodbank? This article explores the laws governing the reusage of foods that have been the subject of a food recall in Australia.

Food recalls

The Food Acts of each Australian State and Territory state that a food business must not sell “unsafe” food. If it has been determined (by the business itself or by a regulator) that a food business has sold or distributed “unsafe” food, the product must be recalled in order to protect public health. In many cases, this means that the product must be recovered from any consumers, distribution centres, wholesalers and foodservice or catering businesses that the food has reached.

There are three types of recalls:

·         Consumer recall: the recovery of a product from all points in the production and distribution chain, including those purchased by consumers.

·         Trade recall: the recovery of a product that has not been directly sold to consumers but has reached distribution centres, wholesalers, and potentially hospitals, restaurants or other catering establishments.

·         Product withdrawal: the temporary removal of a product from the supply chain due to an issue that does not present a risk to public health (for example, a breach of a technical labelling requirement).

Standard 3.2.2 of the Australia New Zealand Food Standards Code (Food Standards Code) applies nationally across Australia and mandates that food businesses have a food safety program that must also designate the protocols to implement a recall when required. The food safety program must be contained in a written document and complied with when recalling unsafe food. Typically, a food business will voluntarily initiate a food recall once aware that the food is unsafe. However, in the case that a food business fails to do so, the State and Territory government health authorities have emergency powers in the Food Acts to mandatorily require the recall.

By definition in the Food Acts, food is “unsafe” where it is likely to cause physical harm when consumed. Recalls can therefore occur for a number of reasons. Food Standards Australia New Zealand (FSANZ) created a non-exhaustive list of such reasons:

·         microbial – contamination with pathogenic microorganisms such as bacteria, viruses or parasites

·         labelling – non-compliant labelling, incorrect food ingredients on the ingredient list, incorrect date markings or other food labelling errors

·         foreign matter – contamination with material such as glass, metal or plastic objects

·         chemical/other contaminants – contamination with substances such as cleaning products, pesticides, machine oil, etc

·         undeclared allergen – due to incorrect labelling, incorrect packaging or contamination of the product by an allergen

·         packaging fault – where a fault in the food packaging results in contamination (presence of glass/metal etc) of the food or a potential choking hazard

·         biotoxin – contamination with biological toxins such as histamine in fish and paralytic shellfish toxin in oysters

·         other – for example, unsafe levels of additives or presence of a therapeutic drug

Clause 2 of Standard 3.1.1 states that a product is not “unsafe” merely because it may cause an allergic reaction in some people. This provision is echoed in many of the Food Acts and aims to prevent a wide-scale recall arising from an allergic reaction that is not common amongst the general population.

Nevertheless, the failure to declare one of the specific allergens requiring a mandatory declaration on the label in accordance with Standard 1.2.3 would render a product unsafe and necessitate a recall. FSANZ reported that between Jan 2010 and Dec 2019, the most common reasons for recall were undeclared allergens and microbial contamination.

Disposal of recalled food

A food that has been recalled must be handled in accordance with Clause 11 of Standard 3.2.2 of the Food Standards Code. This states that food that is subject to recall is considered “food for disposal”. It also outlines that food for disposal must be held and kept separate until it is:

·         destroyed or otherwise used or disposed of so that it cannot be used for human consumption;

·         returned to its supplier;

·         further processed in a way that ensures its safety and suitability; or

·         ascertained to be safe and suitable.

In cases where the recall is initiated due to an undeclared allergen or incorrect labelling, the issue may be rectified by re-labelling or stickering over. Such a product is considered to have been “further processed in a way that ensures its safety” and is sufficient for disposal as long as the product has been separated and clearly identified until this point. Other products with safety hazards that can be rectified and made safe by relabelling or reprocessing would also not need to be sent to landfill.

Standard 1.2.1 of the Food Standards Code generally requires permission from the relevant State or Territory food regulatory body before a food product label can be altered. However, permission is not required where the label is altered only to remedy incorrect information.

While Standard 3.2.2 of the Food Standards Code only applies in Australia, New Zealand also takes a similar position. The Ministry for Primary Industries states that: if the food safety risk can be safely removed from the recovered product through relabelling or reprocessing this may be done once it is clear that public health will be protected.

Repurposing recalled products for charity

However, while some recalled products can be made safe by re-labelling, stickering over, or some other reprocessing, these are additional costs that a food business may not be willing to incur. Food recalls are already very costly for a food business as it needs to spend time and resources to initiate the recall, retrieve the products, notify regulators, inform and compensate consumers if appropriate, pay significant fees that are usually charged by large retailers (such as the supermarkets) as removal fees and restocking fees. In addition, a food business can also suffer significant reputational harm to its brand on account of a food recall.

Recalled products that go to landfill contribute greatly to the amount of food waste in Australia. Data over the past ten years (as at December 2020) displays an upwards trend in the average number of food recalls per year. However, can the recalled products be sustainably repurposed by being donated to one of the Foodbank Australia branch warehouses?

The State and Territory Food Acts do not prevent a food business from donating food. Each Australian State and Territory has enacted additional legislation protecting a food business who donates food from liability on certain conditions. These legislative provisions (sometimes described by the name “Good Samaritan Law”) can be found specifically in the following laws:

·         Civil Liability Act 2002 (NSW)

·         Wrongs & Other Acts (Public Liability Insurance Reform) Act 2002 (Vic)

·         Civil Law (Wrongs) Act 2002 (ACT)

·         Civil Liability Act 2003 (Qld)

·         Civil Liability Act 1936 (SA)

·         Volunteers and Food and Other Donors (Protection from Liability) 2002 (WA)

·         Personal Injuries (Liabilities and Damages) Act (NT)

·         Civil Liability Act 2002 (Tas)

The Acts are framed in largely similar terms and generally protect a food donor business where:

·         The food is donated in good faith for a charitable or benevolent purpose,

·         The food is donated with the intention that the receiver of the food does not have to pay for the food,

·         The food is safe to eat when it leaves the possession or control of the donor, and

·         The donor gives the charity any information it needs to ensure the ongoing safety of the food, with respect to both food handling and time limits for safe consumption.

The South Australian legislation expressly excludes legal protection for a food donor that is “recklessly indifferent” as to the safety of the food. Even where the legislation of other States or Territories does not expressly contain the same exception as in South Australia, it would be open still for a Court to infer this to be the case where the donor was recklessly indifferent and might be found to have not donated in good faith.

Food charities and donation services are therefore able to accept food that has been recalled provided that they are satisfied that the food is safe to consumers. Foodbank Australia has a published list of conditions about the condition of products required to make them acceptable. Often, food banks will accept food with damaged packaging or incorrect labelling. Due to the state legislation, a food business is able to donate recalled products with these cosmetic issues and will be free from liability as long as it conveys the necessary information to ensure the safe consumption of food and meets the other outlined requirements.

For example, Foodbank Australia’s Product Acceptance Guidelines state that:

·         It accepts product that may have the incorrect weight, packaging faults, damage blemishes, be discontinued stock, or have incorrect barcodes.

·         It accepts product with labelling faults (e.g. incorrect date code, allergens, ingredients) which must be accompanied by a letter and/or labels from the donor confirming useability and safety.

·         It does not accept any unlabelled product unless ingredient/allergen information and/or labels are also provided by the donor.

Repurposing and donating recalled food where possible instead of sending the products to landfill would reduce the amount of food waste and contribute to a sustainable Australia. A food business planning to donate must ensure that it complies with the conditions of the legislation in the State or Territory where the donation is made.

This is general information rather than legal advice and is current as of 30 Oct 2021. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.