Sydney company fined for failing to declare allergen in cakes

A Sydney cake manufacturing business and its Director who sold food containing undeclared allergens on multiple occasions, one time resulting in a child suffering an allergic reaction, have been convicted and fined a combined $48,000 plus $21,000 in professional costs in the Chief Industrial Magistrates Court.

Sunfield Australia and its Director Vivien Sun were each prosecuted under the Food Act 2003 for producing and selling cakes containing nut and egg that were not declared on the label.

NSW Food Authority CEO Polly Bennett said the result was particularly pleasing given the danger to health posed by allergic reactions.

"More than 160, 000 people in NSW suffer a food allergy of some sort and statistics show one in ten babies born in Australia today will develop a food allergy," Ms Bennett said.

"Unfortunately at the most serious end of the scale these allergies can prove fatal.

"Consumers rely upon the labels to provide accurate information about the foods they buy and consume.

"The importance of that label cannot be underestimated, for some people it can literally be a matter of life and death.

"Most concerning in this matter is the fact that the company and its Director were on notice of the problems with their labelling following earlier investigations by the Authority.

"Just as the wider community does, the NSW Food Authority expects manufacturers to respect their customers, respect the law and meet their responsibilities."

The company Sunfield Australia was convicted of 9 offences and the Director Vivien Sun convicted of 7 offences including:
Fail to comply with the Food Standards Code in the conduct of a food business: s21(1); Sell food that was labelled in a manner that contravened the Food Standards Code:s21(3) and Sell food that the person ought reasonably know was falsely described and is likely to cause physical harm to a consumer who relies on the description: s15(4)

An initial investigation by the NSW Food Authority in March 2010 found the Company sold cakes containing undeclared nuts. Despite a formal recall of the products, a number of cakes with the incorrect labels were found by the Authority to be still on sale after the recall.

In August 2010, the Company sold cakes containing undeclared egg which resulted in a child suffering an allergic reaction. Following an investigation by the Authority and a subsequent recall of these products, the Authority again found cakes with the incorrect labelling still on sale after the recall.

These matters followed an earlier incident in 2006, where the company was fined for failing to declare walnuts in their product.

In passing sentence, the presiding Magistrate noted that the offences were of a serious nature. Consumers rely on the information contained in labels, and it was well known that allergic reactions can sometimes prove fatal, making general deterrence a significant component of any penalty imposed. In the circumstances, the delay by the Company in implementing the recall after the illness of the child was particularly egregious.

The Court also rejected submissions by the offenders that they did not realise the seriousness of their actions, given that by August 2010, they were well aware of their obligations.

The company has been placed on the NSW Food Authority’s Name and Shame register.

The eight most common food allergens are:

• crustaceans
• eggs
• fish
• milk
• peanuts
• soybeans
• tree nuts
• sesame seeds

These allergens as well as gluten (from wheat, rye, barley, oats and their products) and sulphites (which are added to food as a preservative) are required by law to be declared on food labels.

The law requires food service businesses to provide accurate information when a customer asks about allergens in foods they are being served. Further information about food allergies can be found on the NSW Food Authority’s website: www.foodauthority.nsw.gov.au

Source: NSW Food Authority, 3 July 2013