Whose law is an acai bowl under?

A shop is a food business

The starting point is what a food business is. The standard set out for the chapter is short: a food business is any business or activity that involves the handling of any type of food for sale, or the sale of food in Australia. A shop that assembles and serves a bowl is inside that definition, and so is a stall and a van. The standards in Chapter 3 apply to all food businesses in Australia, with the note that food businesses in New Zealand answer to New Zealand’s Food Act 1981 instead. Their purpose is stated plainly: they aim to lower the incidence of foodborne illness by placing obligations on Australian food businesses to produce food that is safe and suitable to eat, and health and hygiene obligations on food handlers.

Before trading, a food business notifies. The Code requires a food business, before it commences any food handling operations, to notify the appropriate enforcement agency of contact details for the business including its name and the name and business address of its proprietor, the nature of the food business, and the location of all of its food premises within that agency’s jurisdiction. That notification is the point at which a shop’s local regulator knows it exists.

The general food handling standard then applies to everyone in the business. It applies to all food businesses and food handlers in Australia in accordance with Standard 3.1.1, and its purpose is to set out specific requirements that, if complied with, will ensure food does not become unsafe or unsuitable. It specifies food handling controls related to the receipt, storage, processing, display, packaging, transportation, disposal and recall of food, it requires a food business to ensure that people undertaking or supervising food handling operations have skills and knowledge in food safety and food hygiene commensurate with their work activities, and it puts the general duty on each food handler: to take all reasonable measures not to handle food, or surfaces likely to come into contact with food, in a way likely to compromise the safety and suitability of food.

Three more requirements are specific enough to name. Where potentially hazardous food is handled, the business must have a temperature measuring device that is readily accessible and can measure the temperature of that food accurately to within one degree Celsius, and the Code defines potentially hazardous food as food that has to be kept at certain temperatures to minimise the growth of pathogenic microorganisms or to prevent toxins forming. The Code also defines ready-to-eat food as food ordinarily consumed in the same state as that in which it is sold, and it does not include nuts in the shell or whole, raw fruits and vegetables intended for hulling, peeling or washing by the consumer. And a food business must not permit live animals in areas where food is handled, other than seafood or other fish or shellfish, and must take all practicable measures to prevent pests entering the food premises and to eradicate and prevent their harbourage.

The chapter goes further for some businesses. One standard enables states and territories to require food businesses to implement a food safety program, and sets out the general requirements for those programs, which identify the food safety hazards associated with a business’s food handling activities and how the business will monitor and control them. Another introduces management tools for food service and retail businesses that handle or serve potentially hazardous food, with three requirements that apply depending on the business’s food handling activities, which decide whether it is a category 1 or category 2 business: food handler training covering specified food safety principles, a certified food safety supervisor, and evidence to substantiate that key food handling processes have been managed. A shop making bowls to order is the kind of business those tools were written for. Charities, community groups and businesses operating from a private home or at temporary events are exempt from some of the requirements, which is worth knowing before concluding that any small operation is unregulated.

Register, or notify

Which agency a shop deals with depends on where it is. FSANZ keeps the list, and it begins with the general rule: for a complaint about food quality, safety or contamination, or for information on food business permits or licences, the agency to contact is the local food regulatory agency.

In New South Wales, the local council takes complaints about hygiene and standards at most retail outlets, other than retail meat premises. In Victoria, the local council takes the selling, transport or preparation of foods other than the ones Agriculture Victoria covers, and registrations of food businesses, food safety programs, mobile food premises and complaints about a food or food premises; Safe Food Victoria is the contact for general food compliance issues where the starting point is not known, and for publications and legislation. In Queensland, the local council takes licensing of food businesses, both making and selling, mobile food premises, complaints about food safety and hygiene in food premises, and food safety programs outside Queensland Government facilities. In South Australia, SA Health takes registrations of food businesses, both making and selling, and food safety programs, while the local council takes complaints about a food or food premises and about the sale of unsafe or unsuitable food, including undeclared allergens and contamination with foreign matter. In Western Australia, the local council’s environmental health officer takes registrations of food businesses, food safety programs, inspections and assessment of food premises, complaints about a food or food premises, and sampling and analyses of food.

In most of the states listed, complaints about a food or food premises go to the local council, and the food itself is judged against the same Code everywhere.

The bowl against the pack

Set a bowl beside a pack of the same food and different rules reach each: the pack carries a label, and the bowl is made and sold by a food business.

The country of origin rules step out at the counter. Country of origin labels are not required on food in certain circumstances, and the ACCC names them: food bought from restaurants, cafés, take-away shops, schools and caterers. The requirement that reaches most packaged food, sold in a retail setting such as a supermarket, local store, market, online or from a vending machine, does not reach the bowl handed across a counter. The Code’s label rule agrees and is written from the same angle: where the food for sale is made and packaged on the premises from which it is sold, or packaged in the presence of the purchaser, or delivered packaged and ready for consumption at the express order of the purchaser other than from a vending machine, it is not required to bear a label of the kind a packaged food carries.

What does not change is the food itself. The origin rules do require country of origin information for some unpackaged foods sold in a retail setting, including fruits, vegetables, nuts, spices, herbs, fungi, legumes, seeds, fish and most meat, or a mix of these, so a shop selling a loose ingredient it did not make is asking a different question from the shop assembling a bowl. And the food safety standards set controls on how the food is handled: the shop’s handling, storage, temperature control, cleanliness and pest control apply to what it makes, whatever it is made of.

What may be said on the menu and the website

A menu is not a label, but a menu is a communication. The ACCC’s rule on information and claims applies to any communication by a business, and its own list includes advertising, product packaging, a quotation, any information provided by staff whether verbally or in writing, social media, testimonials, and websites or any other platform. So the sentence on a chalkboard and the sentence on the shop’s website are read the same way as the sentence on a pack.

The general law then applies as it does anywhere: in trade or commerce, conduct that misleads or deceives, or is likely to, is prohibited, a false or misleading representation about the standard, quality, value, grade, composition, style or model of goods is prohibited, and a business must be able to prove a claim of a product having a particular quality or benefit. Where a shop or a menu says something about the food it serves, those are the rules the sentence is measured against, and the Food Standards Code’s claims Standard adds its own requirements where a nutrition content or health claim is made.

None of the instruments on this page names the dish. The Code’s list of prescribed names is a list of foods, thirteen of them, and it prescribes no dish and no menu name; the name rule in Standard 1.2.2 is written for labelling provisions rather than for a menu board; and the country of origin standard exempts the food a café sells from the label requirement that carries the box. A bowl’s name is therefore the shop’s own to write, and it is judged by how true it is, not by whether a Standard defines it.

Where a bowl goes wrong, the route back is the local one. A complaint about a food or food premises goes to the local council in most states, and the agency that enforces the Code for food sold in that jurisdiction is the state or territory food enforcement agency, not FSANZ, which does not enforce the Code at all.