The owners of an Osborne Park cafe have been fined thousands of dollars after selling a nut-laden cupcake to a boy with a peanut allergy in an incident a magistrate labelled “potentially deadly”.
The ’Pear’fect Pantry’s owners Bernadette Garcia and Melanie Hoffrichter were each fined $4000 and ordered to pay costs totalling more than $2000 each after they were found not to have taken appropriate steps in labelling food items that could have had “life-threatening consequences”.
Bernadette Garcia and Melanie Hoffrichter were fined in Perth Magistrates Court for mislabelling of food that caused a child to have an allergic reaction.Credit: Facebook
Perth Magistrates Court heard on Monday how a mother had purchased a cupcake labelled nut-free from the cafe a few days before Christmas in 2021, intending for it to be consumed by her son who suffers from a peanut allergy.
Prior to the purchase, the mother asked about the cake’s ingredients due to her son’s condition and was assured it was safe for him.
The boy suffered an allergic reaction when he put the cake to his lips, resulting in a complaint being made to the City of Stirling, which investigated the incident and laid charges under the Food Act.
The court was told the cafe’s baker had used icing that was not nut-free and that the sign on the cake had not been updated to reflect the ingredients.
The women’s defence lawyer, Cheyne Beetham, argued it was the baker who had committed the offence and that it was “an inadvertent, careless slip” that was rectified within 10 minutes.
But the city’s legal representative, Tim Houweling, said a similar complaint about the cafe was also made in August 2020, following which, “it was expressly set out that online training needed to be carried out”.
“The defence puts it on the baker as having made a simple mistake,” he said.
“You can’t come to court and say these are the actions of my employees and I hide behind that.
“The short point is, if you own a food business, you are absolutely responsible … as if you have the mind of the employee.”
On their website, the owners of The ’Pear’fect Pantry say they specialise in vegan baking.Credit: Facebook
The incident was a stark reminder for food businesses to take care in labelling items for consumption.
In 2021 a NSW restaurant was fined $100,000 after a patron died following an allergic reaction to hummus, but the maximum penalty for cases such as this in WA can range up to $500,000.
Lawyers Chelsea McNeill and Kristy-Lee Smith, from Perth firm Lynn and Brown Lawyers, said it was a difficult area for businesses to navigate, because as well as knowing and clearly labelling the ingredients of all the food and drink they sold, they also need to keep up to date with the laws.
They said under the Food Act 2008, if food contained ingredients such as prawns, peanuts, egg, or milk, it needed to be declared.
Last year, 232 children were admitted to public hospitals in WA after an allergic reaction to food, but this figure is significantly lower than in 2021, where 316 children were admitted.
Garcia and Hoffrichter’s lawyer said the women “were remorseful that harm had occurred and had taken significant steps to update signage and train staff since the incident”.
But in delivering his penalty to the women, the magistrate said the consequences of the offending could have been “potentially deadly”.
“It is entirely appropriate for me to consider the risk of peanut allergies and the lack of proper safeguards to ensure children, in particular, are not exposed to potentially fatal elements,” he said.
“There is, fortunately, limited harm to the complainant in this matter but I have to record that is of good fortune, rather than good planning.”
He said there had been “ongoing issues, certainly issues raised with the council” but that “since the offence date they have taken extra steps to ensure this does not happen again”.
The women were each given a spent conviction and ordered to pay $6311 each in penalties and costs.
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