Pure Food (Amendment) Act 1944 (NSW)

PURE FOOD (AMENDMENT) ACT.

Act No. 5, 1944.

An Act to amend the Pure Food Act, 1908, and certain other Acts, in certain respects ; and for purposes connected therewith. [Assented to, 4th April, 1944.]

BE it enacted by the King's Most Excellent Majesty, lat ive Council and Legislative Assembly or New South by and with t he advice and consent of the Legis­	Wales in Parl iament assembled, and by the au thor i ty of
t he same, as follows :—

1. (1) This Act may be cited as the " P u r e Food

(Amendment ) Act, 1944."

(2) This Act (other than section six) shall com­ mence upon a day to be appoin ted by the Governor and notified by proclamat ion published in the Gazette.
(3) The P u r e Food Act, 1908, as amended by subse­
quen t Acts , is in this Act refer red to as the Pr inc ipa l Act.

(4) The Pr inc ipa l Act, as amended by this Act, may

be cited as the P u r e Food Act, 1908-1944.

2 .     The Pr inc ipa l Act is amended—

(a) ( i) by omit t ing from section four the definition

of " A p p l i a n c e " and by inser t ing in lieu

thereof the following definition:—

any
" A p p l i a n c e " includes the whole or	any

p a r t of any utensi l , machinery,

ins t rument , a p p a r a t u s or ar t icle used or intended for use in or for the making, manufac tur ing , keep­ ing, preserv ing , p repa r ing , hand­ ling, serving, or supplying of any food or d rug , or which in the course of such use may come into contact with any food or d r u g ; the t e rm also includes any ins t rument o r contrivance which is held out to

any person or to the public as of use for curat ive purposes , or in rel ieving human suffering, or in overcoming or al leviat ing any physical defect.

(ii)   by inserting in the same section at the end of the definition of " D r u g " the words "and any substance or art icle for consumption or use by man which the Governor may by proclamat ion published in the Gazet te

declare to be a d r u g " ;

(iii)   by inserting in the same section at the end of the definition of " F o o d , " or " a r t i c l e of f o o d " the words " a n d any substance or art icle used for consumption by man which the Governor m a y by proc lamat ion pub­ lished in the Gazette declare to be food or

an art icle of f o o d " ;

(iv) (a) by inse r t ing in the same section in the definition of " T o s e l l " af ter the words " d e l i v e r for s a l e " the words " o r supply as p a r t of a meal where con­ s iderat ion is to be received by the sup­ pl ier for such supply ei ther specifically or as p a r t of a service contracted f o r " ;

(b) by inserting at the end of the same definition the words " o r for p u r p o s e s of analysis or other examinat ion in pursuance of this A c t " ;

(b) (i) by omit t ing from p a r a g r a p h (f) of section

five the words " o r s t a i n e d " and by inse r t ing

in lieu thereof the words " s t a i n e d , p r e ­

pared , or t r e a t e d " ;

(ii) by omit t ing from p a r a g r a p h (m) of t h e

same section the words " a t t a c h e d t h e r e t o " and by inser t ing in lieu thereof the words " o r wr i t t en m a t t e r a t tached there to or en­

closed t h e r e w i t h " ;

(iii) by inser t ing in the same p a r a g r a p h a f te r

the words "con ta ined t h e r e i n " the w o r d s

" o r i ts physiological, cura t ive , or the ra ­

peutic effect."

3 . The Pr inc ipa l Act is fur ther amended—

(a)	by inserting next after section ten the following
new sect ion:—

10A. No person shall in or from New South Wales tender or despatch or offer to tender or despa tch for or on sale any food, drug, or art icle which is adul te ra ted or falsely described, or which is packed or enclosed for sale or labelled, branded or marked in any manne r con t ra ry to o r not in compliance with any provision of this Act, whether the actual sale shall be effected or is to become effective in New South Wales or e l sewhere :

Provided tha t if the actual sale was effective or is to be effective elsewhere than in New South Wales it shall be a defence to a charge of an offence against this section to prove tha t the sale was legally author ised under the laws in force where it was effected or to become effective.

(b) by omitting from subsection three of section twelve the word " d e f e c t i v e " wherever occurring and by inser t ing in lieu thereof the word " d i f f e r e n t " ;

(c) (i) by inser t ing in subsection one of section
th i r teen af ter the words " s o u n d cond i t ion"

the words " a n d shall comply with the pre­

scribed s t a n d a r d s ' ' ;

(ii)   by inserting at the end of the same section the following new subsect ion:—

(3) No person shall sell any food or d r u g which is a mix ture in respect of which a s t a n d a r d has been prescr ibed under this Act unless the mix ture is in accordance with

such s tandard .

(d ) (i) by inser t ing in the short heading to section

fourteen after the word " f o o d " the words

" o r d r u g " ;

(ii)

(ii)   by inserting in subsection one of the same section af ter the word " f o o d " where firstly and secondly occurr ing the words " o r d r u g " ;

(iii)   by inserting at the end of the same subsec­

t ion the following w o r d s : —

No person shall, af ter the expira t ion of six months from the commencement of the P u r e Food (Amendment ) Act, 1944, sell in a package any d r u g unless such a s ta tement or label is wr i t t en on or a t tached to such package as requi red by this section.

Noth ing in this subsection shall apply to any package of d r u g where such d r u g is supplied by prescr ip t ion or order signed by a legally qualified medical p rac t i t ioner for any person then under his care and t rea t ­ ment .

(iv)   by inserting in subsection three of the same

section af ter the word " f o o d " the words " o r

d r u g s " ;

(e) (i) by omit t ing from subsection one of section

seventeen the words " w h i c h by reason of

i ts inact ivi ty or inefficiency";

(ii)   by omitting from the same subsection the

words " o f c u r e " ;

(f) by inserting next after section nineteen the fol­ lowing new section:—

19A. (1) The board may by notification in the Gazette prohibi t the packing for sale of any dis­

infectant or poisonous substance in any con­

ta iner which bea r s upon it any b rand , m a r k or s ta tement which may be capable of mis leading a purchaser into the belief tha t the contents of such container a re for the purpose of human consumption.
(2) No person shall sell or pack for sale any dis infectant or poisonous substance in respect of which a notification under subsection one of this section is in force in any conta iner

bea r ing any such brand , mark or s ta tement .

(g)

(g) by inserting in section twenty after the words " i n p r i v a t e " the words and figures "Div i s ion 7 of P a r t I I I of the Distr ic t Cour ts Act, 1912- 1936, shall apply, muta t i s mutandis , to any such appeal .

The judge may make such order for the pay­ ment of the costs and charges of and incidental to the appeal as to him seems just .

Such costs and charges shall bo taxed by such officer as the judge directs and may be recovered in like manne r as any debt adjudged by the judge of a dis t r ic t court to be paid can be r ecove red . "

(h) (i) by omit t ing from subsection one of section
twenty-one the words " t h e milk o f" and by

inser t ing in lieu thereof the words " m i l k or

any product thereof f r o m " ;

(ii)   by inserting in subsection two of the same

section af ter the words " se l l s m i l k " the

words " o r any product t he reo f " ;

(iii)   by omitting from the same subsection the words " t h e milk o f " and by inser t ing in lieu thereof the words " t h e milk or any

product thereof f r o m " ;

(iv)   by inserting after the same subsection the following new subsect ion:—

(2A) A person who sells milk or any p ro ­ duct thereof shall not knowingly allow any diseased cattle to be in his milking herd or

Dair ies Supervis ion Act, 1901, as amended on his da i ry premises as defined in the

by subsequent Acts .

4.     The Pr inc ipa l Act is fur ther amended—

(a) ( i) by inser t ing a t the end of subsection six of section twenty-two the words " a n d why he should not be ordered to p a y the expenses incurred by the officer in the examinat ion, seizure, and dest ruct ion of the art icle,

package, or v e s s e l " ;

(ii)

(ii)   by inserting in subsection seven of the same

section after the words " s h a l l be d e s t r o y e d "

the w o r d s " T h e said mag i s t r a t e 0r jus t ices m a y fur ther order tha t such owner o r person shall pay the reasonable expenses incur red by the officer in the examinat ion , seizure, and dest ruct ion of the ar t icle ,

package, or v e s s e l " ;

(iii)   by inserting in subsection nine of the same

section af ter the words " l icensed h o u s e "

the word " b o a r d i n g - h o u s e " ;

(b) by omitting from subsection two of section twenty-four the words " a n d shall re ta in one of the said p a r t s for future comparison, and submit the th i rd p a r t to an a n a l y s t , " and by inser t ing in lieu thereof the words ' ' and submit one of the said p a r t s to an analyst , and shall re ta in the th i rd p a r t for future comparison and for such examinat ion or analysis as a mag i s t r a t e m a y d i r e c t . "

5. The Pr inc ipa l Act is fur ther amended—

(a)	by inser t ing in p a r a g r a p h (a) of section th i r ty- eight after the word " A c t " the words " o r upon demand by an officer or author ised person to s ta te his name and place of abode refuses so to do or s ta tes a false name or place of a b o d e " ;
(b)	by inserting next after section thirty-nine the following new section:—
39A. ( 1 ) W h e r e any person engaged in the sale of any food, d r u g or art icle has been con­ victed of an offence aga ins t this Act the cour t may, on such conviction or a t any t ime there­ after , upon applicat ion made as in this section provided, by order , prohibi t such person from engaging in the sale of any food, d r u g or ar t ic le for such per iod as the court may determine . (2) An appl icat ion for an o rder unde r th i s section shall be made by an officer specifically author ised in t ha t behalf by the Minister .

A n

An au thor i ty to make such application, pur-
por t ing to have been signed by the Minister ,

shall be evidence of such au thor i ty without proof

of the Min is te r ' s s ignature .

( 3 ) A n y person who engages in the sale

of any food, d r u g or art icle in contravent ion of an order made under th is section shall be gui l ty of an offence aga ins t this Act and shall be liable to a penal ty not exceeding one hundred pounds .

(4) Any person dissatisfied wi th an

order made under subsection one of this section m a y appeal from the same under and in accord­ ance with P a r t V of the Jus t ices Act, 1902, as amended by subsequent Acts , and the provis ions of tha t P a r t shall, muta t i s mutandis , apply to and in respect of such appeal as if the same were an appeal from a de terminat ion or order of a justice or just ices.

(c)	by inserting in section forty-four after the word
" a n a l y s i s " the words " o r e x a m i n a t i o n " ;
(d)	by omitting from subsection three of section
fifty-one the words " t e n p o u n d s " and by insert­
ing in lieu thereof the words " t w e n t y p o u n d s " ;
(e)	by inserting in section fifty-two after the word
" f o o d " wherever occurr ing the words " o r

d r u g " ;

(f) (i) by omit t ing from subsection one of section

fifty-four the words " a r t i c l e s of food, or

to packages containing such a r t i c l e s , " and

by inser t ing in lieu thereof the words " a n y	food or drug, or to packages containing any
food or d r u g " ;

(ii)   by inserting in the same subsection after the

words " p a y m e n t of a n a l y s t s " the follow­

ing new p a r a g r a p h : —

prohibi t ing the publication, use or exhibi­ tion in any manne r whatsoever , of any p r in ted or pictorial ma t t e r wi th respect to any food or d r u g which is false or mis leading or likely to mis ­ lead ;

(iii)

(iii)   by inserting at the end of the same subsec­

t ion the following new p a r a g r a p h s : —

prescr ib ing requi rements to be observed as to the s i tuat ion and construct ion of premises used for the manufac ture , p repa ra t ion , s torage or packing of any food, d r u g or art icle, and secur­ ing the sani ta t ion of such premises , and the provis ion of sa t is factory facilities for p ro tec t ing such food or

d r u g from contaminat ion;

prohib i t ing the placing in food for sale or in packages of such food, of any toy, coin or other thing, which, if swallowed or taken into the mouth , might bo harmful or injur ious to the consumer.

6.     (1) The Pr inc ipa l Act is fur ther amended—

(a) by omitting section forty-seven and by inserting in lieu thereof the following sect ion:—

47. (1) W h e r e any person is prosecuted

under this Act for the sale of any food, or d rug , or art icle which is adu l te ra ted or falsely described, or is mixed, coloured, composed, or consti tuted in contravent ion of any provision of this Act, he shall be enti t led to be discharged from such prosecut ion upon prov ing—

(a)	that he has received from the person from whom he purchased such food, or
d rug , or art icle, or his duly author ised
agent , a guaran tee in wr i t ing t ha t the same is not adu l te ra ted o r falsely described, or mixed, coloured, composed,
or const i tuted as a foresa id ; and
(b)	that he had no reason to believe that the same was adul te ra ted o r falsely described, or mixed, coloured, composed,
or const i tuted as a foresa id ; and
(c)	that he sold it in the same state as when he purchased it,

subject,

subject, however, to the following condit ions:—

(i)   The person giving the guarantee must be res ident in New South Wales , or, if a company, mus t have a reg is te red office in New South Wales , or, if a firm, must have a place of business in New

South Wales .

(ii)    The gua ran tee mus t s ta te the name and the place of business of the gua ran to r , and the name under which he t rades .

(iii) A guaran tee may be genera l or specific.

(iv)   A general guarantee shall apply to the sale of the descript ion of goods or classes of goods named therein.

(v)   A specific guarantee shall apply to the sale of specific goods and shall refer to a sale note, bill of sale, invoice, bill of lading, or o ther document descr ibing the goods and the weight, measure , and number of the same.

(vi)   A guarantee, general or specific, shall not be available as a defence unless the defendant has , within seven days af te r service of the summons, sent to the in­ formant a copy of such guaran tee with a wr i t ten notice s ta t ing tha t he in tends to rely on the same as a defence, and specifying the name and place of busi­ ness of the person giving the guarantee,

and the name under which he t r ades , and has also sent a like notice of his

intent ion to the person giving the
guaran tee .

The person by whom any guaran tee is alleged to have been given under this section shall be entitled to offer evidence a t the hear ing , and the court may, if it thinks fit, ad journ the hear­ i ng to enable him to do so.

The form of any guaran tee under this section

may be prescribed.

(2)

(2) A n y person who gives any such gua ran tee which is false shall, in addi t ion to any pena l ty for the sale of any food, or d rug , or art icle in contravent ion of this Act, be guil ty of an offence aga ins t this Act, unless he p roves tha t when he gave the guaran tee he had reason­ able g rounds for believing and did in fact believe tha t the s ta tements or descript ions contained therein were t rue .

A prosecut ion of any person for an offence agains t this Act by reason of giving a false guaran tee may be commenced at any time after the giving of such guaran tee no twi ths tanding any limit of t ime prescr ibed by this or any

o ther Act for ins t i tu t ing prosecutions.

(3) Proceedings under subsection two of this section aga ins t the person who has given the gua ran tee may be taken before a court having jur isdict ion in the place where the food, or drug , or art icle was sold, o r before a court having jur isdic t ion in the place where the guaran tee was given.

(4) No person shall, af ter a date to be appo in ted by the Governor and notified by proclamat ion published in the Gazette, place on any package of goods sold by him any serial number al lotted to a gua ran tee in pursuance of p a r a g r a p h (d) of subsection one of the section which this section replaces, or the words

" G u a r a n t e e d under the P u r e Food Act, 1908",

or words of s imilar impor t , o r any words or expression signifying, suggest ing, or implying t ha t the contents of any such package are guaran teed under the provis ions of this Act or the regula t ions , or any o ther law.

(b)	by inserting in section fifty after the words " fa l se ly desc r ibed" where secondly occurr ing the words " o r was mixed, coloured, composed or const i tuted in contravent ion of any provision of
this A c t " .

(2)

(2) -Subsection one of this section shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. The day so appointed shall be a day subsequent to the day appointed pursuant to subsection two of section one of this Act.