Food Act 2001 (DHW 2023-24 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 with assistance from local government and 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 PIRSA 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 Health Protection and Regulation.

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 2023-24

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 2023-24 financial year, a total of 335 food samples were collected as part of food compliance investigations and food surveys. The reduction in the number of samples this period is reflective of the reduction in the investigation of foodborne incidents this year. During this reporting period there were only two food foodborne illness outbreaks investigated by FSRB. Details of these investigations can be found in Appendix 2 (PDF 254KB).

Investigation of food safety issues 2023-24

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 2023-24 after notification from CDCB, the FSRB collaborated with local councils to investigate two foodborne illness outbreaks. Details of investigation 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 FSRB 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 336 notifications received by SA Health. The notification process resulted in one recall.

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, FSRB conducts a risk assessment to determine 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 raw 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.

All Campylobacter, and 33 of the 52 Salmonella notifications came from raw meat and poultry products, highlighting the importance of cooking. Other Salmonella notifications were from product on test and hold programs.

There were 36 Listeria monocytogenes notifications, and all were investigated by SA Health. None of these required recall 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.

Horticulture Standards

New Primary Production and Processing Standards for Berries, Leafy vegetables and Melons will come into effect on 12 February 2025.

The Standards set out the requirements for berries, leafy vegetables and melons (horticultural produce) from pre-harvesting to early-stage processing but do not include manufacturing or retail sale.

Activities defined in the Standards will capture growers and processors. There are some food businesses that will be captured, that are not associated with the growing of primary produce but are processors of primary produce as defined in the standards. In South Australia, this means there will be a division of regulatory responsibility between the Primary Produce (Food Safety Schemes) Act 2004 and the Food Act 2001.

FSRB is working with PIRSA and local government to establish a regulatory framework to ensure all businesses captured by the Standards are monitored for compliance at the appropriate level of risk.

Energy drink surveillance

In April 2023, FSRB was alerted via the Bi-national Food Safety Network to the sale of imported, non-compliant formulated caffeinated beverages, commonly known as energy drinks, in Australia. These energy drinks were primarily imported from the United States and were labelled as containing levels of caffeine exceeding the permitted caffeine level of 320mg/L as prescribed in the Food Standards Code. In some cases, caffeine content exceeded the limit by almost double. The products were also non-compliant with several labelling standards in the Food Standards Code.

Drinking non-compliant energy drinks in addition to normal daily caffeine intake, is likely to be close to or more than the recommended daily limit of caffeine for children, adolescents, and adults.  This excessive caffeine consumption can be associated with anxiety, increased blood pressure and insomnia and is particularly hazardous during pregnancy.

In June 2023 it was identified that non-compliant energy drinks were available for sale in South Australia. As a result FSRB investigated complaints, provided information to local government and businesses via email and on the website, and undertook targeted education and surveillance activities across metropolitan and regional South Australia. Surveillance activities resulted in the issuing of 13 formal warning letters, two expiations and the seizure of 715 non-compliant energy drinks cans businesses. A total of 106 inspections were carried out by authorised officers from FSRB that includes 17 inspections triggered by complaints, 68 for surveillance and 21 follow-up inspections.

Implementation 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). The Standard came into effect in December 2023 and applies to approximately 10,500 food service and retail business across SA. The Standard is an extension of the existing requirements in Standard 3.2.2 and introduces three new tools, namely:

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

These tools aim to strengthen food safety in captured businesses whilst also standardising food safety requirements nationally.

This year the FSRB continued to provide guidance and support to stakeholders and to educate them about the requirements of the Standard by:

• responding to individual queries from, and hosting information sessions for, regulators, industry associations and individual food businesses
• developing a regulator resource repository for information related to the Standard
• developing several industry-specific (e.g., charities and childcare) fact sheets explaining how the requirements apply to businesses in those industries
• updating the website to make it easier to find relevant information; and
• updating the Food Safety Rating Scheme inspection form and regulator support information to assist authorised officers to assess compliance with Standard 3.2.2A during routine food safety inspections.

FSRB will continue to work with local regulators, our national counterparts, and businesses to promote consistent implementation of the Standard.

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 83 food recalls nationally during the 2023-24 financial year as summarised in Table 1. In total, SA consumers were affected by 44 recalls meaning recalled product was distributed in the state.

In 2023-24, a typical food recall was instigated nationally due to cases of human illnesses presenting nationally with unexpected toxicity poisoning following   the consumption of imported Uncle Frog`s Gummies namely Mushroom Gummies Cordyceps and Lions Mane Mushroom. A number of cases presented nationally to emergency departments with adverse health effects including hallucinations, eye twitching, nausea, vomiting, decreased consciousness and tachycardia. A food recall was initiated as the gummies contained two unapproved novel food ingredients, lions mane and cordyceps.

The implicated products were imported by an importer in Queensland. While the majority of cases presented in the Eastern states, South Australia was implicated with one case. SA Health developed a media release supported by a Public Health Alert circular.

Table 1: Summary of recalls conducted in 2023-24

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 (PDF 207KB) 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 2023-24

• Warning letters — 18
• Expiations issued — 2
• Seizures - 2
• 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 2023-24 financial year.

Table 3: Activity requests in 2023-24

• Complaints — 814
  • Alleged food poisoning — 110
  • Allergens — 47
  • Food contamination — 118
  • Labelling — 169
  • Alleged non-compliance with Food Standard 3.2.2 — 349
  • Alleged non-compliance with Food Standard 3.2.3 — 21
• Enquiries — 294
  • General food matters — 204
  • New business information — 57
  • Requests for resources — 33
• Incident Management — 186
  • Investigations — 7
  • Recalls Enquiries — 3
  • Referrals from CDCB — 176
• Total 1294

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 2024, there were 12 approved laboratories and 60 approved analysts. The department maintains a list of approved laboratories and analysts on the SA Health website.

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 2023–24, 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 in table 4 below.

Table 4: Food audit statistics 2023-24

Food Safety Auditor training

The annual SA Health Auditor Forum was held on 24 November 2023 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 2023-24 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 2023-24, the Department approved/re-approved 21 food safety auditors.

On 30 June 2024, there were 64 approved food safety auditors including Department staff and local government authorised officers. The Department maintains a list of approved food safety auditors on the SA Health website.

Foodborne disease investigations in SA 2023-24

Epidemiological investigations into foodborne disease outbreaks within South Australia (SA) are coordinated by the Disease Surveillance and Investigation Section (DSIS) and OzFoodNet staff who are based within the CDCB. 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 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 premises 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 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 2023 to 30 June 2024 CDCB and FSRB investigated two 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 one commercial eatery and one aged care facility. 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 2023 to 30 June 2024

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

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 2023 to 30 June 2024 are listed in Table 6. During the reporting period, four Salmonella clusters, and one Shiga toxin producing Escherichia coli (STEC) 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 of the investigations.

Table 6: Summary of cluster investigations in South Australia during the period 1 July 2023 to 30 June 2024

MLVA= multi-locus variable tandem repeat analysis.

Multijurisdictional outbreak investigations

During the reporting period from 1 July 2023 to 30 June 2024, there were four multi-jurisdictional outbreak investigations (MJOIs) that included South Australian cases but were led by another jurisdiction. The diseases investigated as part of these MJOIs included Listeriosis, Shigellosis, Hepatitis E virus infection, and Salmonellosis. The number of SA cases ranged from one to 14 cases, per MJOI. During these MJOIs, SA OzFoodNet and CDCB conducted enhanced surveillance and epidemiological investigations of local cases; provided data and summary reports to the coordinating epidemiologists; coordinated local laboratory and food authorities; and ensured all relevant SA stakeholders were updated with the progress of the MJOI.

Activities of the Health Protection Operations Section

The Health Protection Operations team within the Department for Health and Wellbeing administers the regulatory functions of the Food Act 2001 in parts of South Australia which are not part of a local government area. These areas, collectively known as ‘Out-of-Council Areas’, are made up of ‘unincorporated’ and Aboriginal Lands and cover approximately 85% of the geographical area of the State. The Out-of-Council Areas are typically very remote and often isolated, making safety a paramount element of all operations.

Health Protection Operations staff authorised under the Food Act 2001 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 extensive distances and extreme weather conditions of outback SA create a challenging environment for both food business operators and regulators. 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

PIRSA activities under the Food Act 2001

Biosecurity is a division of the Department of Primary Industries and Regions (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 Food Act 2001 are inspected by PIRSA officers. A number of PIRSA officers have been appointed authorised officers under the Food Act 2001.

During 2023-24, 904 audits were conducted by Biosecurity officers on 458 butcher shops including supermarkets, where a component of audits may address other retail activities regulated under the Food Act 2001. During the audits, 81 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.