The NSW Food Authority prosecuted importer Narkena Pty Ltd, based in western Sydney, which pleaded guilty last month to three labelling and packaging charges.
The child, from Melbourne, is said to have suffered the reaction to undeclared dairy allergens in the Greentime Natural Coconut Drink in December 2013. The product was recalled from sale five weeks later.
At the sentencing hearing in Sydney on Tuesday, Jehane Ghabrial, counsel for the Food Authority, asked the company’s business manager, Perry Wu, if he accepted there had been no testing in any products except for on September 22 this year.
Mr Wu said their products had been randomly tested by Customs.
Ms Ghabrial asked: «You are not aware of any specific testing by Narkena of any of its food products between the time you were engaged as business manager up until September 22 2015?»
Mr Wu accepted that was the case.
The court heard that invoices from the manufacturer of the coconut drink contained information that stated the product contained condensed milk. There was also a declaration that the drink contained less than 10 per cent dry weight of dairy product.
Ms Ghabrial said to Mr Wu: «Over two and a bit years you were receiving invoices that contained the declaration [saying it contained] less than 10 per cent dry weight of dairy product.»
She asked: «You got these invoices between 2011 and 2013 and you didn’t see that declaration?»
«I didn’t see it,» Mr Wu said.
«Is that the truth, sir?»
She later asked: «You didn’t think to put a similar declaration on your product, a short label on your cans as a matter of precaution containing the same declaration as their declaration?»
«No,» Mr Wu answered.
Fairfax Media revealed the tragedy earlier this month. The canned product, Greentime Natural Coconut Drink, is sold in most states.
The food authority said the company entered pleas of guilty to two charges that the drink was labelled in a way that falsely described the food, and to one charge of selling food in a manner that contravened the Food Standards Code.
Five coconut drinks have been recalled in recent weeks, all because they contained undeclared cow’s milk, according to Allergy & Anaphylaxis Australia.
In court, Ms Ghabrial asked if Narkena’s product test last month was done after the company pleaded guilty. It was, Mr Wu said.
Asked if that was to impress the court, Mr Wu replied: «No, because we wanted to check food. We didn’t want to have the same problem again.»
Ms Ghabrial asked: «The reason testing hasn’t been done is because it’s costly and can hold up produce being released into the community?»
Mr Wu replied: «We trust the manufacturer.»
«As at 2010, » she asked, «when NSW Food Authority provided links to food standards for labelling, you knew from that time dairy products needed to be declared on labels. You knew that, didn’t you?»
«Yes,» Mr Wu replied.
The company has been operating since 1997 and has 15 employees, the court heard. Mr Wu accepted it was thriving.
Earlier, Ms Ghabrial asked: «Has Narkena done anything on a without-admission basis to make any reparation or compensation to the family of the child?»
Robert Ranken, counsel for Narkena, objected, saying the company was not charged with causing the death of the child and the question was not relevant.
Ms Ghabrial asked: «Has Narkena attempted to make any contact with the family of the child on a without-admission basis to offer condolences as you express in your affidavit?»
«No,» Mr Wu said.
«Has Narkena had any connection with the family to express its condolences?» Ms Ghabrial pressed.
Mr Wu said: «We received a letter from the child’s solicitor which we passed to our insurance company.»
The court heard the company’s sole director and secretary, Andy Lin, was not attending the hearing because he was «poor of English». Ms Ghabrial suggested: «Mr Lin doesn’t want to be here in court today because he doesn’t feel responsible for the offences committed by his company.»
She asked Mr Wu if he blamed the drink’s manufacturer, Ou-Dean Foods in Taiwan. Mr Wu said he did.
The hearing continues. The company faces a maximum penalty of $10,000 on each charge.
Maria Said, NSW president of Allergy & Anaphylaxis Australia, said she was dismayed that it had taken almost two years for similar products to be investigated, even after the coconut milk blamed for the boy’s death was found to contain cow’s milk.
«The spate of coconut drink-related recalls continues, as it should have from January 2014,» she said.
In September, The Sun-Herald reported Aiden Henderson, 9, who is allergic to dairy products, went into anaphylactic shock after drinking the flavoured drink Coco Joy. Also imported by a Sydney firm, it was recalled as a result.
The Department of Agriculture subsequently began inspecting the labels of all imported coconut milk drinks. All products with labels that do not declare milk will be sent to labs for testing, it said.
Under Australian law, an importer who knowingly brings in food that poses a risk to human health can be jailed for 10 years.
Summing up, Ms Ghabrial said: «Not enough was done to address the issues they were very well aware of.»
But Mr Ranken reminded the court the company was not accused of causing the death of the child, and that would be determined by the Victorian coroner. The company was genuinely unaware the drink contained milk products or proteins, he said.
«There has been an attempt to make good the wrong and remove the potential danger from the community,» he said. «Genuine steps are being made to improve the situation so an offence of this nature doesn’t occur in the future.»
Magistrate Jennifer Atkinson said there were concerns about the need to have proper labelling on food and beverages.
Sentencing will take place on November 18.
Source: SMH