Food Act 2001 (DHW 2022-23 Annual Report)

Part 9 – Administration

Division 2 – Functions of enforcement agencies

S 93 - Reports by enforcement agencies

(1) The head of an enforcement agency (other than the relevant authority) is to report to the relevant authority, at such intervals as the relevant authority requires, on the performance of functions under this Act by persons employed or engaged by the agency.

Division 4 – Agreement and consultation with local government sector on administration and enforcement of Act

S 96 – Agreement and consultation with local government sector

(1) The Minister must take reasonable steps to consult with the Local Government Association (LGA) from time to time in relation to the administration and enforcement of this Act.

(2) If the Minister and the LGA enter into an agreement with respect to the exercise of functions under this Act by councils, then the Minister must prepare a report on the matter and cause copies of the report to be laid before both Houses of Parliament.

(3) A report under subsection (2) must be accompanied by a copy of any relevant written agreement between the Minister and the LGA.

(4) The Minister must consult with the LGA before a regulation that confers any function on councils is made under this Act.

(5) The annual report of the Minister under this Act must include a specific report on -

(a) the outcome of any consultation undertaken under subsection (1) or (4); and

(b) the operation of any agreement referred to in subsection (2).

S 109 - Annual report

(1) The Minister must, on or before 30 September in each year, prepare a report on the operation of this Act for the financial year ending on the preceding 30 June.

(2) The Minister must, within 6 sitting days after completing a report under this section, cause copies of the report to be laid before both Houses of Parliament.

The objectives of the Food Act 2001 (the Act) are defined in Section 3 of the Act as:

1. Ensuring that food for sale is safe and suitable for human consumption.
2. Preventing misleading conduct in connection with the sale of food.
3. Providing for the application of the Food Standards Code.

The Act closely follows the content and structure of national model food provisions, which provide for the consistent administration and enforcement of food legislation in Australia. This uniform approach to national food legislation was formalised by the Inter-Governmental Food Regulation Agreement 2002. Under the Agreement all states and territories have adopted the Australia New Zealand Food Standards Code (the Code) through their Food Acts. While the Act contains important legal and administrative issues, such as defining offences and penalties, the Code details the specific requirements with which food businesses must comply.

The objectives of the Food Act 2001 (the Act) and Food Regulations 2017 are to:

• ensure food for sale is both safe and suitable for human consumption.
• prevent misleading conduct in connection with the sale of food.
• ensure the Food Standards Code (the Code) can be applied to food businesses in South Australia.

To meet the objectives of the Act, the Act requires the Department for Health and Wellbeing (the Department) to:

• undertake measures to ensure the effective administration and enforcement of this Act.
• approve laboratories and analysts to carry out analyses under the Act.
• approve food safety auditors to carry out audits and monitor compliance of audited facilities.
• maintain a list of approved food safety auditors.
• appoint authorised officers for the Department.
• prepare an annual report to be submitted to both Houses of Parliament.

The Department administers the Act in partnership with local government and Biosecurity SA, a division of the Department of Primary Industries and Regions South Australia (PIRSA). Activities undertaken by local government under the Act are detailed in Appendix 1, activities undertaken by Biosecurity SA are detailed in this report. Within the Department, the Food Safety and Regulation Branch is responsible for day-to-day administration of the Act with assistance from the Health Protection Operations Section of the Health Protection and Regulation Directorate.

1. Activities of the Food Safety and Regulation Branch

Monitoring Compliance with the Food Act 2001

The Food Safety and Regulation Branch (FSRB) of the Department carries out functions under the Act to ensure the supply of safe and suitable foods to the South Australian community. This includes investigating foodborne illness incidents, ensuring compliance with compositional and labelling requirements of the Code, assisting businesses to manage food recalls (and mandating recalls where necessary), risk assessing notifications of contaminants in food, managing the food safety audit system across the state, and responding to food safety complaints and general enquiries. Further detail on those activities is presented below.

Food sampling 2022-23

The FSRB conducts sampling of various foods that are of public health concern as part of local or national food safety surveys or to confirm compliance with the compositional and labelling requirements of the Code. A key performance indicator was established to analyse 800 food samples per year. For the 2022-23 financial year, a total of 847 food samples were collected as part of food compliance investigations and food surveys.

Investigation of food safety issues 2022-23

Food safety related issues come to the attention of the FSRB from a variety of sources including food surveys, complaints from members of the public, reports from the food industry, the Australian Competition and Consumer Commission (ACCC), Environmental Health Officers (EHOs) in local government, other regulatory agencies, or notification of illness from the Communicable Disease Control Branch (CDCB).

During 2022-23 after notification from CDCB, the FSRB collaborated with local councils and/or PIRSA to investigate three foodborne illness outbreaks. Details of the major outbreaks can be found in Appendix 2. Investigations included onsite assessment of food handling practices in food businesses, sampling of food and environmental swabbing. The objectives of these investigations are to remove any risk to public health, establish the cause of the outbreak, ensure food businesses implement short-term and long-term corrective actions and to determine if an offence has been committed against the Act.

FSRB regularly conducts post-incident debriefs to review the effectiveness of policies and procedures applied during incident investigation.

Notifiable contaminants

The South Australian Public Health (Notifiable Contaminants) Regulations 2020 require specified microorganisms to be reported to the Food Safety and Regulation Branch of SA Health when they are found in food and water samples. Food and water samples include all raw, partly processed and ready-to-eat foods, bottled water and ice, and may also include live plants and animals.

During this reporting period there were 754 notifications received by SA Health as summarised in Table 1. The notification process resulted in three recalls that affected 11 products.

Notifiable contaminants include pathogens such as Salmonella, Campylobacter, Listeria monocytogenes which cause foodborne illness, and indicator (non-pathogenic) organisms such as Listeria species and E. coli. Indicator organisms do not cause illness but can be used by the business to indicate there may be suitable conditions in their environment for pathogenic bacteria to grow. Further information about pathogenic and indicator organisms can be found in the Food Standards Australia New Zealand (FSANZ) Compendium of Microbiological Criteria for Food (the Compendium).

When notifications are received, SA Health conducts a risk assessment to determine what, if any, actions are required. In many instances action was not required as there was no risk to public health e.g. indicator (non-pathogenic) organisms, food not available for sale to the public or food to be cooked by the consumer to destroy foodborne pathogens.

Most of the notifications were for indicator organisms such as Listeria species and E. coli. Businesses may test multiple samples from one product resulting in multiple notifications for one product. Extra testing may also occur as businesses look for the reason indicator organisms are present.

However, there are limits for E. coli specifically related to dairy products in the Compendium, and two recalls affecting 5 dairy products were conducted for levels considered 'unsatisfactory'.

One business had multiple Listeria monocytogenes notifications from a variety of products made in a short time frame. This resulted in one recall affecting 6 products. Refer to the 'Food recalls' section.

All Campylobacter and 124 of 125 Salmonella notifications came from raw meat and poultry products, highlighting the importance of cooking.

There were 42 Listeria monocytogenes notifications, and all were investigated by SA Health. Of these, 34 did not require action as the risk assessment deemed them to be of low risk to public health. This included product that meets the limits of the Australia New Zealand Foods Standards Code, product that was on test and hold and subsequently destroyed or product not considered ready to eat. All the Listeria monocytogenes isolates were whole genome sequenced and are not linked to human cases of listeriosis.

Food recalls

Standard 3.2.2 of the Code requires food businesses that engage in the wholesale supply, manufacture or importation of food, to have a system in place to ensure the recall of unsafe food. All food recalls are coordinated nationally by FSANZ, with the food business undertaking the recall being responsible for carrying out the recall as soon as an issue is identified. There are two levels of recall, a trade level and a consumer level recall. A trade level recall is conducted when the food has not been available for direct purchase by the public, such as food sold to wholesalers and caterers. A consumer level recall is conducted when the food has been available for retail sale and usually involves advertisements on social media to inform consumers of the recall. The FSRB informs local councils of all recalls affecting South Australia (SA) and requests that they check food businesses in their area are complying with the recall.

FSANZ was the coordinator for 92 food recalls nationally during the 2022-23 financial year as summarised in Table 1. In total, SA was affected by 45 recalls meaning recalled product was distributed in the state.

In year 2022-23, there were two major incidents of toxic effect in humans that resulted in multiple recalls. Summary of these recalls provided here.

In late October/early November 2022, a number of cases of significant adverse health reactions were reported across Australia. Further investigation linked the cases to consumption of poppy seed tea. Investigations found that non-culinary (not for human consumption) poppy seeds entered the food supply chain as culinary grade poppy seeds. More information is available on FSANZ website.

In December 2022, a substantial number of food related toxic reactions occurred, typical of tropane alkaloid poisoning. Tropane alkaloid poisoning in humans includes symptoms such as; delirium or confusion, hallucinations, dilated pupils, rapid heartbeat, flushed face, blurred vision and dry mouth and skin. Investigations found the cause of confirmed cases was the consumption of baby spinach products due to contamination with a toxic weed (thornapple/jimsonweed) at the time of harvesting of baby spinach. More information on FSANZ website.

Table 1: Summary of recalls conducted in 2022-23

Enforcement actions

The FSRB is responsible for monitoring compliance with Chapters 1 and 2 of the Code for SA based food businesses, and is also involved in investigating matters of non-compliance with Chapters 3 and 4 found during audits, surveys, complaints, and investigations of illness. SA Health’s Public Health Services Enforcement Framework provides authorised officers with guidance on the process for conducting enforcement activities.

Local government is responsible for conducting routine food business inspections to monitor compliance with Chapter 3 of the Code and for investigating complaints made against businesses within their jurisdiction. Statistics about local government activities under the Act are provided in Appendix 1.

Where the FSRB identifies non-compliance in a food business, corrective actions are addressed through a graduated and proportionate response. Once effective corrective action is confirmed, no further enforcement action is undertaken. Should non-compliance remain unresolved, enforcement action can be escalated. Table 2 provides a summary of the enforcement activities undertaken by the FSRB.

Table 2: Enforcement activities undertaken in 2022-23

• Warning letters — 1
• Expiations issued — 0
• Improvement notices — 0
• Emergency orders — 0
• Prosecutions — 0

Activities and enquiries

Table 3 details the number and type of enquiries, complaints, referrals and incident management requests actioned by FSRB in the 2022-23 financial year.

Table 3: Activity requests in 2022-23

• Complaints — 564
  • Alleged food poisoning — 114
  • Allergens — 27
  • Food contamination — 109
  • Labelling — 116
  • Alleged non-compliance with Food Standard 3.2.2 — 97
  • Alleged non-compliance with Food Standard 3.2.3 — 23
• Enquiries — 226
  • General food matters — 172
  • New business information — 37
  • Requests for resources — 17
• Incident Management — 238
  • Investigations — 15
  • Recalls Enquiries — 5
  • Referrals from CDCB — 218
• Total 1,028

Approval of laboratories and analysts

The Department is responsible for approval of laboratories and analysts to undertake analyses under Sections 63 and 67 of the Act in line with established competency criteria.

On 30 June 2022, there were 11 approved laboratories and 58 approved analysts. The department maintains a list of approved laboratories and analysts on the SA Health website.

Introduction of new Food Safety Standard 3.2.2A – Food Safety Management Tools

In December 2022, the Food Standards Code was updated to include a new Food Safety Standard 3.2.2A – Food Safety Management Tools. The Standard has a 12-month transition period and will apply to an estimated 10,500 business across SA.

The Standard is an extension of the existing requirements in Standard 3.2.2 and introduces three new tools, namely:

1. mandatory food handler training,
2. the appointment of a ‘food safety supervisor’, and
3.  the provision of evidence to ‘substantiate’ key food handling activities.
   

These tools aim to strengthen food safety in certain food service and retail businesses whilst also standardising food safety requirements nationally.

Since the gazettal of the new Standard the FSRB have worked closely with key stakeholders to educate them about the changes, including providing training for Environmental Health Officers (EHOs) and running multiple information sessions for businesses. In addition, SA Health provided communication materials to local government to distribute to businesses and shared an extensive collection of information and tools that were developed locally and nationally, to assist food business to implement the Standard. These resources are available via the SA Health website.

The FSRB will continue to provide guidance and support to South Australian regulators and food businesses, as well as to work with our national counterparts, to promote consistent application of the Standard.

Food safety audits

Food safety programs have been mandated nationally for businesses providing food to vulnerable populations in hospitals, aged care facilities, childcare centres, and via delivered meals organisations such as Meals on Wheels.

National Food Safety Standard 3.3.1 (audited mandatory food safety programs for food services to vulnerable persons) became enforceable in South Australia in October 2008. The Department has continued to liaise with industry, local government and food safety auditors to develop monitoring and review systems, to ensure effective management of the audit process in SA food businesses to whom this standard applies.

In 2022–23, the Department continued to conduct food safety audits of public hospitals, Department of Human Services (DHS) businesses such as Disability Services and not-for-profit delivered meals organisations including Meals on Wheels SA. These facilities are audited at the frequency determined by the performance of individual sites, in line with the priority classification for these businesses. Additionally, the Department conducts food safety audits of specific food processing sectors (e.g., bivalve molluscs, ready-to-eat meat and egg processors) under Food Safety Standards 4.2.1, 4.2.2, 4.2.3 and 4.2.5., where these food businesses undertake activities that are regulated under the Act. Food audit statistics are provided below.

Table 4: Food audit statistics 2022-23

*one business stopped conducting this activity in the reporting period.

Food Safety Auditor training

The annual SA Health Auditor Forum was held 3 November 2022 and was facilitated by approved food safety auditors from the Department to assist with improving consistency of interpretation and professional development for the auditor workforce.

The Department continues to facilitate the Lead Auditor in Food Safety Management Systems training sessions. Two training sessions were held in the 2022-23 reporting period.

Food Safety Auditor approvals

The Department is responsible for approval of food safety auditors under Section 73, 83 and 84 of the Act in line with established competency criteria.

In 2022-23, the Department approved/re-approved 13 food safety auditors.

On 30 June 2023, there were 64 approved food safety auditors including Department staff and local government authorised officers. The Department maintains a list of approved auditors on the SA Health Website.

2. Foodborne disease investigations in SA 2022-23

Epidemiological investigations into foodborne disease outbreaks within SA are coordinated by the Disease Surveillance and Investigation Section (DSIS) and OzFoodNet staff who are based within the CDCB of SA Health. OzFoodNet is a national network that conducts enhanced foodborne disease surveillance.

OzFoodNet and other CDCB staff work in collaboration with a range of stakeholders when investigating outbreaks. SA Pathology conducts microbiological and molecular testing of isolates from humans, food, and environmental samples. Local government EHOs and the SA Health Food Standards Surveillance (FSS) section of FSRB, provide food technology and environmental investigation expertise and perform environmental and food premises investigations. PIRSA staff assist with traceback investigations and implement control measures with primary producers where appropriate.

CDCB staff conduct interviews with cases to obtain food histories when clusters of suspected foodborne disease are detected. This information is used to identify frequently consumed food items and can sometimes lead to further investigations. When further investigations are required, it is often in the form of analytical studies that aim to demonstrate a statistical association between illness and the consumption of a particular food item, eating at a particular premises, or an environmental exposure. When a food and/or premise are suspected on epidemiological grounds, laboratory evidence, for example, microbiological testing of food and environmental samples is undertaken to support the observed epidemiological associations.

Often, despite efforts to identify a specific food vehicle or source of an outbreak, none can be identified. An implicated food item may no longer be available or suitable for microbiological testing, making it impossible to provide definitive laboratory evidence for the source of an outbreak. Cases may also have difficulty in remembering foods consumed or premises visited if an appreciable time has passed between the exposure and the interview.

During the period of 1 July 2022 through to 30 June 2023, SA Health investigated three outbreaks of gastrointestinal illness that were known or suspected to be foodborne and for which a common source was identified. The settings for the outbreaks included two commercial eateries and one private residence. These outbreaks are summarized in Table 5 and detailed in Appendix 2.

This summary does not include outbreaks that were suspected to be person-to-person transmission, animal-to-person transmission, or from an environmental source (including swimming pools). All investigation data are subject to change, as this is the nature of clusters and outbreaks.

Table 5: Summary of foodborne disease investigations in South Australia during the period 1 July 2022 to 30 June 2023

No. = Number; D = Descriptive evidence (i.e. information obtained from interviewing cases and/or inspections of premises); M = Microbiological evidence of pathogen in food vehicle MLVA = Multi-locus variable number tandem repeat analysis.

In the reporting period from 1 July 2022 to 30 June 2023, there were two multi-jurisdictional outbreak investigations (MJOI) that included SA cases but were led by another jurisdiction. A summary of the outbreaks is included here:

• MJOI 2022-001: In December 2022, more than 200 probable cases of anticholinergic syndrome were reported across New South Wales, Queensland (QLD), Victoria, Australian Capital Territory, and SA, with potential links to consumption of contaminated baby spinach. FSANZ coordinated multiple recalls of baby spinach products in December 2022 due to potential contamination with unsafe plant material. Subsequent investigations confirmed that the recalled spinach was contaminated with a weed – thornapple (Datura stramonium) – a type of nightshade, also known as jimsonweed. The supplier worked with the Victorian government authorities to determine how the contamination occurred and to prevent it from happening again. In SA, there were five cases with onset dates from 7 December 2022 to 19 December 2022.
• MJOI 2023-001: An increase in an uncommon type of Salmonella Typhimurium multi-locus variable tandem repeat analysis (MLVA) 03-13-07-09-523 was identified in Western Australia (WA) in December 2022. Initial investigations in WA identified epidemiological and microbiological evidence linking case illness to the consumption of baby cucumbers, including a positive cucumber sample with the same strain of Salmonella collected from a supermarket in WA. As the implicated baby cucumbers were nationally distributed, a MJOI was initiated in January 2023. In total, 45 cases were included nationally in the outbreak, with onsets between 1 November 2022 and 13 March 2023, the majority of which were WA residents. In SA, there were four cases. All SA cases were interviewed and three reported consumption of baby cucumbers before illness. Further food and environmental sampling conducted on the implicated farm that produced the baby cucumbers and from retail in SA and NSW did not identify Salmonella.

Cluster Investigations

A cluster is defined as an increase in a specific infection in terms of time, person or place, where the source and mode of transmission remains unknown. A summary of cluster investigations from 1 July 2022 to 30 June 2023 are listed in Table 6. During the reporting period three Salmonella clusters, two Campylobacter clusters, and one Yersinia enterocolitica cluster were investigated. All clusters were general increases in specific infections in the community without a common source identified and only descriptive evidence was available for all the investigations.

Table 6: Summary of cluster investigations in South Australia during the period 1 July 2022 to 30 June 2023

MLVA= multi-locus variable tandem repeat analysis.

*A fourfold increase in Yersinia enterocolitica notifications in quarter one 2023 was identified, compared to the five-year average for the same period. Cases were unclustered geographically, reported mild symptoms, and low hospitalisation rates. Interviews with cases did not identify a common source or hypothesis. Further typing of sample isolates conducted by the public health laboratory identified six different biotypes (less than half of the isolates were not culture positive and could not be typed). In response to several cases in different residential aged care facilities – almost all with a single case per facility – food specimens were collected by FSS from different aged care facilities where cases were detected. All samples were negative for Yersinia enterocolitica. Yersinia notifications declined in SA in the second quarter.

3. Activities of the Health Protection Operations Section

Health Protection Operations administers the regulatory functions of the Act in the ‘Out-of-Council Areas’ within SA (‘unincorporated’ and Aboriginal Lands; not serviced by a local council). These areas make up approximately 85% of the geographical area of the State and are typically very remote and often isolated, making safety a paramount element of all operations.

Health Protection Operations staff authorised under the Act are qualified EHOs with extensive regulatory experience in rural, remote, and Aboriginal communities. Food safety functions undertaken by Health Protection Operations include:

• Monitoring and enforcement of compliance with Food Safety Standards and of the safety and suitability of food.
• Routine and follow up inspections of food businesses to ensure that the premises, equipment, and food handling practices will result in the supply and sale of safe and suitable food.
• Food safety audits of businesses providing food to vulnerable populations.
• Responding to complaints in relation to food businesses and investigating food poisoning and disease outbreaks.
• Monitoring and taking action to ensure efficiency with which food is recalled for health and safety, and/or is removed from sale.
• Receiving food business notifications for new businesses or change to business details.
• Provision of food safety advice and delivery of educational programs and resources to food businesses, schools, and communities.

The vast distances and extreme weather conditions associated with outback SA provide a challenging environment for both food business operators and regulators alike. Effective and thorough operational procedures and protocols ensure the risks associated with such an environment are well managed and appropriate food safety and compliance standards are maintained.

Statistics about food businesses and surveillance activities are provided below:

Table 7: Authorised officers

• Environmental health qualifications - 6
• Full-time - 6

Table 8: Food business and surveillance activity

Table 9: Enforcement actions

4. PIRSA activities under the Food Act 2001

Biosecurity is a division of the Department of PIRSA and administers the Primary Produce (Food Safety Schemes) (Meat Industry) Regulations 2017. The regulations require butcher shops to hold accreditation and comply with relevant food safety standards. Under the Memorandum of Understanding (MoU) between SA Health and PIRSA, both agencies share risk management principles that minimise regulatory burden and duplication. In practice, to avoid duplication, butcher shops that sell food other than meat and conduct activities regulated under the Act are inspected by PIRSA officers. A number of PIRSA officers have been appointed authorised officers under the Act.

During 2022-23, 1,482 audits were conducted by Biosecurity officers on 441 butcher shops including supermarkets, where a component of audits may address other retail activities regulated under the Act. During the audits, 100 Corrective Action Requests (CARs) were issued which related to their food safety program, hygiene or construction, and required follow up visits. No expiation notices or penalties were issued.