Pulling the pin – what you need to know if faced with a food recall

With the recent contamination of fruit with needles resulting in supermarket chains pulling fruit off their shelves, it is a timely reminder to food producers and manufacturers of their obligations relating to product recalls.

What started off with needles in strawberries and then spreading to other fruits, has resulted in a significant impact on fruit growers and consumers. Mass harvests of fruit have been dumped, prices have fallen and consumer demand has dropped for fear of ingesting a needle.

New laws are being introduced to deter copycat offenders from similar contamination activities to include increasing the maximum jail time from 10 year to 15 years. A new offence will also be created which relates to reckless conduct.

What if I have concerns about food I produce?

If you believe any food product may or will cause injury or alternatively you have become aware the food has in fact caused a death or serious illness or injury which requires medical treatment, a recall may be required.

Food Standards Australia New Zealand (FSANZ) is required to be notified and will communicate with relevant Commonwealth government agencies and industry groups.

Reasons for recalls are many and varied and include things such as:

  • Contamination by objects or chemicals;
  • Non-compliant labelling;
  • Undeclared allergens;
  • Packaging fault;
  • Presence of biotoxins

There are various recall levels that may be initiated being a consumer recall, trade recall or consumer and trade recall, depending on the extent of distribution of the product.

The critical steps with any recall is to ensure action taken is considered is timely and that the prescribed timelines for notifying authorities are met. It is also important all action is documented and reports are retained.

The scale of the recall and number of distributors and customers affected will influence the communication plan required. Typically this will involve contacting distributors and consumers (where details are known or can be determined), a point of sale communication and possibly media/social media advertisements.

What should I do?

In the first instance, seek advice on whether a recall is required and gain an understanding of the process and obligations. If a recall is required, work closely with your legal advisers to communicate with FSANZ and other applicable agencies and to tailor an appropriate communication strategy for the recall.

It is possible a recall will not be required. However, we still strongly recommend seeking legal advice no matter how small the risk may be.

It is not only important to ensure compliance under the law but to maintain and preserve your business reputation. Even where a recall is not required, it is often a good idea to have a plan in place to take action that will mitigate any PR risks.

Macpherson Kelly has significant experience in product recalls across a range of industries and is able to assist with any product safety and labelling queries you may have. For more information please contact Sotheary Bryant.

This article was written by Georgia Davies-Jackson, Lawyer РCommercial.