Nanna’s Mixed Berry recall: Class action lawsuit threatened over frozen berries and possible changes to food regulations

There are calls for tougher food handling regulations and threats of a class action lawsuit over the recall of frozen berries by Patties Foods, with the Australian Made Campaign urging small businesses to be aware of the risks of imported goods.

The latest developments come after the Victorian food manufacturer and distributor issued a total product recall of its frozen berries after a number of cases of hepatitis A were linked to the products last week.

In a notice on its website, Patties has extended the recall of Nanna’s 1kg frozen Mixed Berries to include Creative Gourmet Mixed Berries 300g and 500g packs, as well as Nanna’s 1kg frozen Raspberries.

Law firm Slater and Gordon is now urging anyone adversely affected by the recall to contact Slater & Gordon as part of a potential class action.

“We’re investigating whether that will be an appropriate response,” Slater and Gordon principal lawyer Julie Clayton told SmartCompany.

“I’ve heard reports in the media of around 10 confirmed cases. Now that’s enough to make a class action claim, but it’s not clear whether a class action would be viable at this stage.”

Clayton says Australian Consumer Law gives rights to individuals who were injured as a result of a safety defect in goods to claim compensation against the relevant manufacturer.

“The way the Australian Consumer Law operates is to favour the consumer over the importer or manufacturer of a product, in that the consumer doesn’t have to prove the manufacturer knowingly did anything wrong as they would in most other cases,” Clayton says.

“All the consumer has to show is the product isn’t fit for purpose, or isn’t safe. That puts the onus on businesses in cases like this.”

Clayton said under the Australian Consumer Law, Australian distributers of imported goods can be held responsible for a product’s safety to the same extent that they would if they had grown or manufactured it themselves.

“In a situation like this, the product appears to be imported, if what we’ve heard in the media is correct. From the point of view of ACL, is doesn’t matter where that contamination occurred; whether locally or overseas, the Australian company is treated as the manufacturer and is liable.”

Food labelling laws

Meanwhile, the fallout from the health scare is also attracting interest in Canberra, with Palmer United Party leader Clive Palmer issuing a statement calling for tougher food labelling laws.

“We want to introduce a coloured tag system to properly inform consumers of the origins of the products they buy,” Palmer said.

“If a product contains more than 5% of the product including packaging not originating in Australia, it would carry a red tag and if an item has 95% or more of its content made in Australia then we would be proposing a green and gold tag.

“The aim of this kind of food labelling reform would enable consumers to be able to make informed decisions about their purchases and to promote and protect truly Australian goods and services for the betterment of everybody in this country.”

In a separate statement, independent Senator Nick Xenophon called for tougher food handling regulations and a review of the Department of Agriculture and Food Standards Australia and New Zealand (FSANZ) food handling system.

“For example, the government does not test for bacterial infections of foods, as part of its spot-checks of 5% of low risk food imports,” Xenophon said.

“Our system is almost entirely reactive, in that it tests five per cent of food products as they enter the country. We should be looking at issuing permits to export to Australia, so that adequate sanitation and health checks can be carried out in advance.”

“This is a serious and widening outbreak of illness apparently caused by basic hygiene failures in China. These berries were considered ‘low risk’ but failed the most basic of health checks – carrying a bacteria common in faecal matter.”

Australia’s health and safety advantage

Australia Made Campaign marketing manager Ben Lazzaro told SmartCompany Australian made products have a clear advantage in terms of health and safety.

“This is a spectacular example of the huge differences between the health and safety standards of some countries and the high standards Australians take for granted,” Lazzaro says.

“We have a clean, green environment and more importantly we have a strict framework and high standards for manufacturing goods to make sure they’re fit for purpose.”

Lazzaro says while there is sometimes a cost implication for small businesses as sourcing overseas products can sometimes be cheaper, “there’s a reason for that”.

“You can take that element out of your risk profile and minimise your risk by sourcing locally… When your brand is at stake, it’s not worth the risk,” he says.

The thoughts are echoed by entrepreneur Dick Smith, who told SmartCompany many developing countries “simply don’t have the money to afford the quality and health controls we do”.

“To produce my tomato sauce, I need to go through a clean room like an operating theatre. These standards hardly exist in China,” Smith says.

“It’s surprising. Most Aussies don’t buy the cheapest car, and most Aussie women won’t buy the cheapest handbag. But when it comes to food, most Aussies will buy products without proper health and safety controls.”

SmartCompany contacted Patties Foods but did not receive a response prior to publication.

Know more? Email asadauskas@privatemedia.com.au.