Chapter 6
The Restaurant Sector:
Food
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
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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 quality
• It will be fit for human consumption
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Food Standards
2
 A breach of the implied terms occurs if
food contains
• foreign objects
• poisons
• diseases
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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
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Food Standards
4
 The duty of care required in kitchens
also focuses on avoiding unreasonable
risks associated with
• kitchen implements
• pieces of equipment
• ingredients that are flammable or that
can scald
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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.
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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.
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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.
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Sale of Goods Act
 There is an implied warranty that
goods are
• of merchantable quality
• reasonably fit for the purpose
(ingestion and digestion)
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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.
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Ingredients of Food
 Menus and advertising
• Although regarded as marketing
devices, menus must nevertheless be
truthful. For example:
• Canadian Maple Syrup must be of
Canadian origin.
• Canada Grade A Beef must be of
Canadian, not American origin.
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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.
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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.
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Food Poisoning
 Food poisoning may arise from
• contaminated raw material
• cross contamination
• improper thawing, cooling, or heat
retention
• inadequate reheating or cooking
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Food Poisoning
2
 Food poisoning may also arise from
• delay between preparation and
ingestion
• an unsanitary kitchen
• unsanitary equipment
• infected persons handling food
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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.
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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.
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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.
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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.
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