Victorian food regulators' Memorandum of Understanding

1. Definition of incident

1.1. For the purpose of this schedule a food safety incident is defined as any event related to the supply of food where an actual or suspected threat to the safety of food requires investigation to protect public health, and involves more than one regulator, whether or not there are cases of illness.

2. Foodborne illnesses

2.1. Single incidents of foodborne illness

1. It is the responsibility of the relevant local government to follow up and investigate single incidents of foodborne illness.
2. Where, during the course of any such local government investigation, issues identified by a local government officer associated with a business regulated by DFSV, PrimeSafe or DJPR, local government should refer this to the relevant regulator for investigation and oversight of any corrective actions.

2.2. Outbreaks of foodborne illness — general principles

1. Under the relevant DHHS communicable diseases guidelines, an outbreak is defined as the occurrence of a disease or health event in excess of the expected number of cases for a given time or place. This typically means two or more cases of the same disease within a specified period of time and/or geographical location.
2. DHHS coordinates the investigation of the possible source of all outbreaks of foodborne illness, regardless of which regulator is responsible for the premises implicated in the outbreak.
3. Under sections 189 and 190 of the Public Health and Wellbeing Act 2008, the Chief Health Officer has specific statutory functions with respect to risks to public health, which include outbreaks of foodborne illness. These powers include premises closure, requiring the provision of information and directing the owner of any premises to take any action necessary to reduce the risk to public health.
4. The Chief Health Officer also has emergency powers which include the power to mandate a food recall under Section 44A(d) of the Food Act 1984.

2.3. Outbreaks associated with local government registered premises

1. Outbreaks of illness are investigated in accordance with the relevant DHHS communicable disease guidelines, which state that outbreaks confined to a local government area geographically are primarily the responsibility of that local government authority; and that outbreaks where cases are spread beyond local government or regional boundaries will be coordinated by DHHS (Communicable Disease Prevention and Control Unit), who will also provide local governments with clear direction and support.
2. The DHHS communicable diseases guidelines set out the roles and responsibilities of both local government and the relevant departmental units in the context of an outbreak at a local government-registered food premises.
3. Where necessary, DHHS may need to call meetings and/or establish an Incident Management Team (IMT), or similar, depending on the nature of the outbreak.

2.4. Outbreaks associated with DFSV or PrimeSafe licensed premises

1. When a DFSV or PrimeSafe licensed premises is implicated in an outbreak of foodborne illness, DHHS will work with the principal regulator to undertake the investigation in accordance with the IMT principles outlined below.
2. DHHS leads an outbreak investigation with the view to establishing and controlling the source of illness, and will obtain assistance, support and specialist expertise from the principal regulator as required, throughout the investigation.
3. DFSV or PrimeSafe will investigate licensed premises to determine if any non-compliance at a premises may pose a public health risk.
4. The relevant regulator is responsible for enforcement action at the premises to ensure ongoing compliance with the food safety program and relevant food legislation, as well as ensuring that any corrective actions identified by DHHS and/or the relevant regulator are implemented as appropriate or in accordance with any Chief Health Officer requirements.
5. Where there is a need for DHHS to attend on-site at a DFSV or PrimeSafe licensed premises as part of the investigation into the outbreak, the relevant regulator will also be present in the interests of a transparent and cooperative approach.

2.5. Outbreaks associated with premises regulated by DJPR

1. When DHHS confirms epidemiological evidence for foodborne illness associated with on-farm activities, DJPR staff will conduct an investigation and risk assessment on the farm, except for dairy farms.
2. DHHS and DJPR will operate in accordance with their MoU for the joint management of zoonoses and related veterinary public health matters.
3. DJPR will follow the relevant Manual of Procedure and its relevant Standard Operating Procedures (SOP) for disease investigation, where these have been developed, such as the Investigating Salmonellosis in poultry flocks SOP.
4. DJPR is responsible under the Food Act for taking the necessary action relating to farm businesses for which it is responsible.

2.6. Multi-jurisdictional outbreaks of foodborne illness

1. Multi-jurisdictional outbreaks of foodborne illness (MJOIs) pertain to outbreaks where there are cases in more than one jurisdiction, an outbreak in one jurisdiction related to a food in another jurisdiction or a point source outbreak with cases from more than one jurisdiction.
2. MJOIs are led by OzFoodNet under the Guidelines for the Epidemiological Investigation of Multi-Jurisdictional Outbreaks that are Potentially Foodborne, (MJOI Guidelines).
3. The food safety investigation during an MJOI will be led by the relevant food regulator in accordance with the Bi-National Food Safety Network standard operating procedures, which may involve the triggering of the Food Incident Response Protocol.

3. Referral of matters between regulators

3.1. Parties will work together to facilitate a robust and expedient food safety complaint investigation and incident response. Information will be shared in accordance with law.

3.2. When referring matters, parties will provide as much evidence and information as is relevant and possible to the recipient regulator. This may include written statements obtained from relevant parties including the complainant, receipts, photographs that are in focus and high quality, packaging, labelling, certificates of analysis, officer reports, interviews, specimens including foreign objects and foods. It is important to ensure chain of custody and relevant temperature control is maintained at all times.

4. Complaints about food safety

4.1. Investigation of food complaints

1. Complaints about food safety are predominantly received from members of the public, although they are also sometimes received from other food companies, and usually pertain to the following areas:
• microbiological, for example, single incident allegations of food poisoning, mould growth
• physical, that is, foreign objects in food, for example, insect, plastic, wood, rubber, glass, nail. If the foreign object has the ability to inflict harm and its presence in the food cannot be explained by the method of manufacture, potential deliberate contamination of food should be considered and ruled out in the first instance. In this instance the incident should be referred to DHHS as a matter of urgency.
• labelling, for example, incorrect date marking, incorrect directions for use, absence of address of supplier, incorrect nutrition information panel.
• allergens, for example, allergic response to undeclared allergen in packaged food, allergic response to allergen in a meal at a restaurant after ensuring with staff at premises that the meal did not contain said allergen. An allergen is any food allergen recognised and named in the Code Standard 1.2.3.
• chemical and natural, for example, food smells or tastes tainted, pine mouth.
2. Food safety complaints will be investigated by the relevant food regulator, depending on the issue, the food and the premises that the complaint relates to.

4.2. Food complaints regarding local government registered premises

1. Local governments are responsible for investigating complaints about food premises and food manufactured, sold and imported in and by premises registered within their municipality, whether received directly by the local government or referred from another food regulator (Victorian or from another state or territory). Where the local governmen's investigation reveals the (likely) need for a food recall, the local government shall advise DHHS, and obtain guidance as required to oversee the recall, assisting as required by DHHS.
2. Under the Food Act, DHHS has a specific role to facilitate the Secretary’s exercise of his/her powers and functions as delegated to the Chief Health Officer under the Food Act. One such function is the power to mandate a food recall to prevent the possibility of a serious public health risk. Where a food regulator forms a view that the mandating of a food recall is required, liaison with DHHS needs to occur as soon as possible.

4.3. Investigation outcome feedback

1. It is the responsibility of the investigating regulator to provide an outcome to the complainant upon the completion of the investigation, as well as any updates during investigation, as required.

5. Incident management team (IMT)

5.1. The purposes of the IMT are as follows:

1. to coordinate a whole-of-Victorian-Government response to the food safety incident
2. to clarify and confirm roles and responsibilities of each of the regulators involved in the investigation of the incident
3. to facilitate an expedited resolution to the incident
4. to minimise adverse impacts on public health as well as trade and market access where relevant, and
5. to agree on and develop key communication messages and to ensure appropriate communication with stakeholders, including relevant overseas markets.

5.2. Where a food safety incident involves an outbreak of illness, the Chief Health Officer will lead any meetings and IMT processes in accordance with any relevant DHHS incident response policies, guidelines and standard operating procedures.

5.3. An IMT process may also be established on a case-by-case basis to manage food safety incidents that do not involve food borne illness.

6. Food recalls

6.1. In accordance with the Food Standards Australia New Zealand Act 1991, Food Standards Australia New Zealand (FSANZ) is responsible for coordinating food recalls at the request of states and territories. The decision as to whether a food recall should occur is typically made in discussion with the relevant food regulatory agency in consultation with the relevant food business.

6.2. The relevant food regulatory agency should notify DHHS immediately if it becomes aware that a food business is commencing recall action to enable DHHS to provide FSANZ with advance notice that a recall is to be initiated.

6.3. Two FSANZ food recall protocols set the roles and responsibilities for all relevant regulators, and food industry, involved in a food recall. These are:

1. Government Food Recall Protocol — a guide for government authorities on the coordination of food recalls in Australia, and
2. Food Industry Recall Protocol — information on recalling food in Australia and writing a food recall plan.

6.4. Where a food recall is the appropriate action to protect public health, the Chief Health Officer (as delegated by the Secretary) has emergency powers under Section 44A(d) of the Food Act to mandate the recall through the issuing of an order. Where this occurs, the relevant food regulator will provide support, assistance and information as required by the Chief Health Officer.

7. Deliberate contamination

7.1. The investigation of incidents of deliberate contamination of food comes under the jurisdiction of Victoria Police under the Crimes Act 1958. This is regardless of who may be the potential source of the deliberate contamination. Food regulators provide a support role to the police in such investigations.

7.2. Where a food regulator suspects deliberate contamination of food it may refer the matter to Victoria Police. DHHS can be contacted to provide advice and guidance.

1. Each regulator will interpret the Australia New Zealand Food Standards Code (the Code) for application at premises it regulates.
2. All regulators will endeavour to interpret and apply the Code in a consistent manner.
3. In providing guidance and advice to local governments about interpretation and application of the Code, DHHS will have regard to any relevant information provided by local governments, DFSV and PrimeSafe about their experience in administering relevant legislation.

1. Complaints to local government

1.1. Local governments may receive complaints on a variety of issues relating to food premises that may require investigation under other regulations, such as planning, building, public health, environment and local laws.

1.2. If, during the course of an investigation, a local government identifies a food safety incident associated with a business that is regulated by Dairy Food Safety Victoria, PrimeSafe or the Department of Jobs, Precincts and Regions, the local government will refer the matter to the relevant regulator.

1.3. Local governments are responsible for the investigation of all notifications of nuisances under the Public Health and Wellbeing Act 2008, regardless of whether the premises is registered with a local government. An outcome of such investigation may include referral to another agency, such as the Environment Protection Authority.

1.4. Local governments have powers to investigate noise complaints under relevant local laws, the Environment Protection Act 1970 or the Public Health and Wellbeing Act, depending on the issue, regardless of whether the business is registered with a local government.

1.5. Local governments are responsible for the investigation of complaints relating to waste under relevant local laws or the Public Health and Wellbeing Act, depending on the issue.

2. Misleading and deceptive conduct

2.1. Parties to this MoU may refer alleged or suspected misleading or deceptive conduct (that is, in relation to advertising, packaging or labelling of food for sale, including instances of food fraud) to the Australian Competition and Consumer Commission (ACCC).

2.2. In deciding whether to investigate or refer alleged or suspected misleading or deceptive conduct, parties will consider seriousness of the issue and whether the conduct appears to be in breach of Australian Consumer Law.

2.3. This case-by-case consideration allows a decision to be made as to who will undertake the investigation and any relevant enforcement action.