Food Contamination: Should there be harsher penalties?

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Food contamination can be a serious matter, as the recent Hepatitis A outbreak from frozen berries has shown.

At least 13 people across the country have been diagnosed with the virus after eating a certain brand of frozen berry products processed in China and sold in Australian supermarkets.

There are also many people who ate the berries and are still waiting to see whether they have contracted the virus, which can take up to seven weeks to show itself.

The Hepatitis A virus is fairly common, although it is usually associated with travelling overseas and the consumption of food contaminated with faeces.

The berries have been recalled amid calls for stronger screening processes and accountability.

Are current penalties enough?

Contamination of food can lead to serious health problems, illness and even death, yet the worst penalty that most of the people and organisations who are negligent will receive is a fine.

In contrast, acts of negligence such as negligent driving occasioning death/GBH can result in criminal proceedings that attract a range of penalties including criminal records and even prison sentences for those who are found guilty.

But negligence in food safety that could potentially result in the death or serious illness of a large number of people does not normally come with the threat of a possible prison sentence.

In January, an outbreak of salmonella at a Chinese restaurant in Queensland made over 110 people ill, including young children and old people.

The outbreak, believed to have been linked to egg products in deep fried ice cream, led to many of those affected having to be treated in hospital.

The restaurant has since been closed down while investigations take place, and its owner is facing a hefty fine.

What are the current penalties for food contamination?

Australian Consumer Law states that companies found in breach of consumer law due to lax safety standards can be issued with a civil pecuniary penalty (ie a fine), and if a single person or number of individuals are found to be responsible, they can be disqualified from managing corporations for a set period of time.

When is food contamination a crime?

The Contamination of Goods Act 1997 (NSW) introduced a range of offences into the state’s Crimes Act 1900 criminalising the contamination of goods.

Section 93K of the Crimes Act, for example, prescribes a maximum penalty of 10 years’ imprisonment for anyone who contaminates goods with the intention of:

(a) causing public alarm or anxiety, or

(b) causing economic loss through public awareness of the contamination,

The Act also contains laws against threatening to contaminate goods and making false statements regarding contamination.

There is also an aggravated offence which prescribes a 25 year maximum sentence where death or grievous bodily harm is caused as a result of contamination.

There are also laws against contaminating goods in the Criminal Code Act 1995 (Cth), including section 380.2 which  prescribes a 10 year maximum penalty for such acts.

Stricter standards, tougher penalties needed?

The Australian government has been widely criticised for its lax safety standards regarding imported food, especially given that local farmers are required to adhere to stringent measures to ensure that their produce is safe.

The system is widely believed to be swayed towards importers with vague labelling laws that make it easy for consumers to be deceived as to the origins of their food.

Since the hepatitis outbreak last month, the government has promised that all berry imports are being screened, but the Department of Agriculture has refused to confirm this and it seems unclear who is doing the screening.

All in all, there certainly appears to be an argument that more stringent laws, screening processes and monitoring of food importation, production and preparation could reduce the likelihood of illness and death caused by contaminated foods.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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