Chapter 6 The Restaurant Sector: Food

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 Summary of Objectives  To examine the legislative and common law issues particular to the food service industry  To explore the legal issues associated with advertising in the restaurant sector  To identify causes of food poisoning and the standard operating procedures that reduce the risk of it

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 3 Food Standards  A duty of care is owed by food service operators to the public.  There are two implied conditions of food offered for sale: It will be of merchantable qualityIt will be of merchantable quality It will be fit for human consumptionIt will be fit for human consumption

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 4 Food Standards 2  A breach of the implied terms occurs if food contains foreign objectsforeign objects poisonspoisons diseasesdiseases

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 5 Food Standards 3  The doctrine of res ipsa loquitur applies if a plaintiff becomes ill or is injured as a result of eating or drinking at a restaurant.  Res ipsa loquitur means that, but for the negligence of the manufacturer or restaurant operator, the plaintiff’s illness or injury could not have occurred

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 6 Food Standards 4  The duty of care required in kitchens also focuses on avoiding unreasonable risks associated with kitchen implementskitchen implements pieces of equipmentpieces of equipment ingredients that are flammable or that can scaldingredients that are flammable or that can scald

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 7 Standard of Liability  Manufacturers are liable for injuries even if precautions were taken.  A restauranteur’s standard is lower than, but close to, that of strict liability.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 8 Standard of Liability 2  A person who purchases a restaurant meal and becomes ill can sue directly in contract.  A person who becomes ill but did not pay for the meal can sue using the tort law bypass, the neighbour principle.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 9 The Food and Drugs Act  Applies to food, drugs and cosmetics  Controls labelling and advertising of these products  Sanctions for breaches include fines and prison terms.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 10 Sale of Goods Act  There is an implied warranty that goods are of merchantable qualityof merchantable quality reasonably fit for the purpose (ingestion and digestion)reasonably fit for the purpose (ingestion and digestion)

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 11 Good Samaritan Legislation  In the past, unused food was often thrown out to avoid risk of liability.  Not-for-profits and persons donating food may now be protected by legislation.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 12 Ingredients of Food  Menus and advertising Although regarded as marketing devices, menus must nevertheless be truthful. For example:Although regarded as marketing devices, menus must nevertheless be truthful. For example: Canadian Maple Syrup must be of Canadian origin.Canadian Maple Syrup must be of Canadian origin. Canada Grade A Beef must be of Canadian, not American origin.Canada Grade A Beef must be of Canadian, not American origin.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 13 Ingredients of Food 2  It is false advertising and a breach of duty of care to serve food not meeting religious dietary requirements if the menu claims otherwise.  A general disclaimer on the menu protects against a charge of false advertising when substitutions are necessary.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 14 Objects in Food  The foreign or natural test – if the item is natural to the type of food being served, there is no breach of warranty of merchantable quality.  The reasonable expectations test – the presence of a reasonably unanticipated object in food constitutes a breach of warranty.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 15 Food Poisoning  Food poisoning may arise from contaminated raw materialcontaminated raw material cross contaminationcross contamination improper thawing, cooling, or heat retentionimproper thawing, cooling, or heat retention inadequate reheating or cookinginadequate reheating or cooking

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 16 Food Poisoning 2  Food poisoning may also arise from delay between preparation and ingestiondelay between preparation and ingestion an unsanitary kitchenan unsanitary kitchen unsanitary equipmentunsanitary equipment infected persons handling foodinfected persons handling food

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 17 Food Poisoning 3  Standards are specified by the Canadian Food Inspection Agency and the Uniform Regulations and Code of Practice for Food Retail and Food Services Sector.  There is also liability for breaches of the Food and Drugs Act.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 18 Smoking  The accommodation and food services industries must know and enforce the restrictions on smoking in public areas.  Staff may resort to occupational health and safety legislation when employers do not comply with anti smoking laws.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 19 Smoking 2  The superior knowledge ascribed to hospitality industry operators may impose on them a duty to prevent hazardous air quality conditions beyond that required of other citizens.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 20 Best Practice  As was the case with accommodation sector operators, the best practice for food sector operators is to exceed rather than meet the minimum statutory requirements for their industry.