Prabash Semasinghe

1. Obligations in Relation to Food
and Beverages
Lecturer: Prabash Semasinghe
Attorney at law
LLM (Wales ), LLM (Colombo)

2. * If you are serving food at your hotel you have legal
duties to ensure the food is prepared in a hygienic
fashion and in the proper way for the safety of your
guests.
* If an Public Health Inspectors visits your hotel and
discovers poor hygiene standards they have the right
to close your hotel for the welfare of your guests,
under the Food Act 1980.
SERVING FOOD

3. * Common Law –Roman Dutch Law
i. Under law of Delicts – lack of duty of care towards
the Guest
ii. Under law of Contracts- Violation of an implied
contract term of the contract between the Guest
and the hospitality provider
* Statute Law Food Act 1980 as amended
Legal regime in Sri Lanka

4. * According to the Food Act No.26 of 1980, all food
establishments need to be registered with the food
authority of the area.
* To give effect to this legislation a Regulation has been
Gazetted which is called “Food (Registration of
premises) Regulations -2019
* According to this Regulation all food establishments
from small way-side restaurants to star class hotels
need to be registered under the Food Act
Food Act No 26 of 1980
as amended

5. * This regulation will be effective from 01.01.2020 --
Gazette No. 2128/4
* Every person who manufactures, prepares, preserves,
packages, stores any food for sale or offers for sale in
a premises set out in Schedule II hereto shall make an
application for the registration of such premises
Food (Registration of premises)
Regulations -2019

6. * Hotel or Resort” means a commercial establishment
providing accommodation, meals, beverages and
other guest services
* Restaurant or Eating House” means a premises where
people sit and consume meals, beverages or
refreshments cooked or prepared and served on the
premises

7. * Details of Food Handlers
* Quality and cleanliness of the Premises
* Equipment and Containers
* Processes
Criteria for Registration

8. * Apply to all establishments dealing with the
processing, transport, distribution, handling, storage
or sale of food or any other matters related to food
establishments.
* “food establishment” means any building or area in
which food is handled and the surroundings under
the control of the same management
Food (Hygiene) Regulations 2011
Gazette No. 1742/26 - JANUARY 26, 2012

9. * Uniform Commercial Code Warranty
Section 2-314 Merchantability
When a foodservice operation sells food, there is an
implied warranty that the food is merchantable.
Simply put, a foodservice manager is required to
operate his or her facility in a manner that protects
guests from the possibility of foodborne illness or
any other injury that may be caused by consuming
unwholesome food or beverages.
The US legal Regime

10. The courts usually apply one of two different tests to
determine whether a food- service establishment is liable to a
guest for any damages suffered from eating the food.
i. The foreign/natural test
i. Reasonable expectation” test

11. * Whether the object is foreign to the dish or a natural
component of it.
* If the object is foreign, then the implied warranty of
merchantability (fitness) under the UCC is breached,
and the food service operator would be held liable
* If it is a natural component, the warranty would not
be breached
The Foreign/Natural test

12. * This test seeks to determine whether an item could
be reasonably expected by a guest to be found in the
food.
* Example :
1. Clamshells are natural parts of clams, but are they
really natural components of clam chowder?
2. fish “ filet ”
Reasonable Expectation test

13. * The law in this area is very clear. Restaurants will be
held responsible for the illnesses suffered by their
guests, if those illnesses are the direct result of
consuming unwholesome food.
Guest Safety

14. HARRY WAS THE EXECUTIVE CHEF at the Regal hotel. One of his specialties was a hearty vegetable
soup that was featured on the lunch buffet every Thursday. Pauline Guilliard and her friends
decided to have lunch at the Regal House one Thursday before attending an art exhibit. Ms. Guillard
read the lighted menu at the front of the buffet line. The chef’s specials, including the vegetable
soup, were written on the menu with a felt-tip pen. Ms. Guilliard selected the vegetable soup and a
few other items, and consumed one full bowl of the soup. Three hours later, at the art exhibit, she
suffered seizures and had difficulty breathing. It turned out that the soup contained MSG—a food
additive to which she had severe reactions. Ms. Guilliard recovered, but her attorney contacted the
hotel with a demand letter seeking compensation for her suffering.
The hotel’s attorney replied that the soup served by the hotel was wholesome and that Ms.
Guillard’s reaction to the MSG could not have been reasonably foreseen. In addition, the hotel
maintained that MSG is a common seasoning in use worldwide for many years, and thus it would
have been the diner’s responsibility to inform the foodservice operation of any allergies or allergic
reactions. As a result, the liability for Ms. Guillard’s illness was hers alone.
Question

15. 1. Did the hotel have an obligation (or
duty”) to notify guests that the soup
contained MSG?
1. How do you think a court would respond
to this situation? What level of damages,
if any, do you think a judge would be
included to award in this case?

16. * Provider should take all reasonable measures to
ensure that the food he serve is safe and consumable
by the guests. Disclosing ingredients and warning
guests of potential concerns is the best practice.
* In addition to the quality of the food , how it is served
also matters
* A restaurateur is considered an expert—( an
individual with skill and judgment)—when it comes to
the proper delivery of prepared food and beverages

17. * Can also be found liable if they serve wholesome food in an
unsafe or negligent manner.
* Management should frequently review all food
temperatures, serving containers, food production
techniques, and delivery methods. Chipped plates and
glasses or poorly washed utensils can present just as much
of a legal risk as serving spoiled or unwholesome food
* In addition, restaurants should strive to accommodate
guests who ask that dishes be prepared without a specific
ingredient to which they are allergic and to closely supervise
the preparation of that dish

18. * Menu advertising is covered under a variety of
consumer protection laws but many people have felt
that restaurants’ misrepresentations deserved more
focused attention
* first to call for a Truth in Menu law, in 1972. The first
attempt to enact such a law, in the form of a city
ordinance, came in San Francisco in 1974
TRUTH IN MENU LAWS

19. * The impetus behind the San Francisco Ordinance was
to stop restaurants from serving convenience
entrees that had been prepared elsewhere, frozen,
and reheated in the restaurant, yet were not
identified as such and leaving diners to believe they
originated in the restaurants’ kitchens.
Cont …

20. * Fines were issued for margarine referred to as butter,
Maine lobster not from Maine, real maple syrup that
wasn’t, frozen entrees touted as home-made, 8 oz
prime steaks that weighed less and were lower grade,
chicken and veal dishes made of turkey or pork, and
fish that wasn’t what its name implied

21. * Under federal law, certain food items and preparation
techniques must be carried out in a very precise way,
if that item or technique is to be included on a menu.
In many cases, the federal government, through
either the Food and Drug Administration or the U.S.
Department of Agriculture, has produced guidelines
for accurately describing menu items.
Preparation Style

22. * Grilled : Items must be grilled, not just mechanically produced with “ grill marks, ”
then steamed before service.
* Homemade : The product must be prepared on premises, not commercially baked.
* Fresh : The product cannot be frozen, canned, dried, or processed. Breaded Shrimp :
This includes only the commercial species, Pineaus. The tail portion of the shrimp of
the commercial species must comprise 50 per- cent of the total weight of a finished
product labeled “ breaded shrimp.” To be labeled “ lightly breaded shrimp, ” the
shrimp content must be 65 percent by weight of the finished product.
* Kosher - Style : A product flavored or seasoned in a particular manner; this description
has no religious significance.
* Kosher : Products that have been prepared or processed to meet the requirements of
the orthodox Jewish religion.
* Baked Ham : A ham that has been heated in an oven for a specified period of time.
Many brands of smoked ham are not oven - baked
Examples

23. * It is important that your menu accurately reflect the
preparation techniques used in your kitchen, not only
because the law requires you to, but also to help
ensure your operation’s credibility with the public.

24. * Perhaps no area of menu accuracy is more important
than the listing of ingredients that actually go into
making up a food item. While restaurants are not
currently required to divulge their ingredient lists
(recipes) to their guests, there are specific situations
when the ingredients listed on a menu must precisely
match those used to make the item
Ingredients

25. * An operator offers Kahlua and cream as a drink on a bar
menu, the drink must be made with both the liqueur and
the dairy product stated. Kahlua is a specific brand of
Mexican coffee liqueur, and cream is defined by the US
federal government as a product made from milk with a
minimum fat content of 18 percent. Of course, a bar
manager is free to offer a different, less expensive coffee
liqueur to guests, and use half- and - half (which contains 12
percent milk fat) instead of cream, but the drink could not
be called a Kahlua and cream.
Example

26. * If substitutions of the menu items must be made, the
guest should be informed of those substitutions
before ordering. As consumers’ interest in their own
health continues to rise, foodservice operators can
expect more involvement and con- sumer activism in
the area of accurate ingredient listing

27. * For many menu items, the origin of the product or its
ingredients is very important. Many consumers prefer
Colorado trout to generic trout, Washington apples to
those from other states, and Bluepoint (Long Island)
oysters to those from other areas.
* It can be tempting to use these terms to describe
similar menu items from other places, which may cost
less to purchase. But to do so is fraudulent.
Origin

28. * Product size is, in many cases, the most important
factor in determining how much a guest is willing to
pay for a menu item
* specifying size on a menu is an area that must be
approached with the understanding that the law will
expect you to deliver what you promise.
Size

29. * It is no surprise that today ’s health-conscious
consumer demands more. In response, restaurants
generally have begun to provide greater detail about
the nutritional value of their menu items.
* Health benefit claims can also appear on menus.
These claims do not describe the content of spe- cific
menu items, but instead show a relationship between
a type of food or menu item and a particular health
condition
Health Benefits

30. * The Food and Drug Administration (FDA) has issued
regulations to ensure that foodservice operators who
make health benefit claims on their menus can indeed
back them up. These regulations, published in the
August 2, 1996, Federal Register, apply the Nutrition
Labeling and Education Act (NLEA) of 1990 to
restaurant items that carry a claim about a food’s
nutritional content or health benefits.
Cont.…..

31. * Nutrient Claim
A low-sodium, low-fat, low-cholesterol item must not
contain amounts greater than FDA guidelines for the term
“ low. ” Light, or “ lite ” items must have fewer calories
and less fat than the food to which it is being compared
* Health Benefit Claim
When printing health benefit claims on a menu, further
information about the claim should be available
somewhere on the menu or be available on request.
Restaurants do not have to provide nutrition information
about dishes on the menu that have no nutrient content or
health claim attached to them

32. * ISO 22000: ISO 22000 is an internationally recognized food
safety management standard that applies to any organization
that participates in food production directly or indirectly
* FSSC 22000: FSSC 22000 is a food safety certification system that
combines ISO 22000 with additional requirements. FSSC was
developed by the Foundation for Food Safety Certification, and
has global recognition from the Global Food Safety Initiative
(GFSI). The standard's primary goal is to ensure food safety
during primary production of animal products and during
manufacturing of perishable plant and animal
products, products with long shelf lives at ambient
temperatures, food packaging products and food and feed for
animals.
Global Food safety standards

33. * The GFSI is a collaboration between retailers,
manufacturers and service providers within the
supply chain, and coordinated by The Consumer
Goods Forum. By benchmarking standards against
each other to a set of criteria, GFSI aims to reduce the
duplication of retailers asking for separate, yet nearly
identical, audits.
Global Food Safety Initiative (GFSI)

34. SERVING ALCOHOL…..

35. * What is Liquor ? As per the definition given in the
Excise Ordinance, liquor includes spirits of wine, spirit,
wine, toddy, beer and all liquid consisting of or
containing alcohol; also any substance which the
minister may declare by a notification, to be liquor for
the purpose of the said ordinance.
SL Excise Ordinance- Chapter 52

36. * The scope of the Excise Ordinance consists of the
entire liquor supply chain consisting of the six phases
namely, importation, exportation, manufacturing,
transportation, possession and sale of
liquor, excise revenue management, enforcement of
excise laws and social security mechanism against the
illicit liquor.
The Scope

37. FL 7/8
Hotel License and
Hotel Bar License
(not approved by the
Tourist Board)
11.00 a.m.- 2.00
p.m. and 05.00 p.m.-
11.00 p.m.
Relevant type of License
FL 7/8
Hotel License and
Hotel Bar License
(approved by the
Tourist Board)
10.00 a.m. - 12.00
midnight
FL 11
Restaurant License
(not approved by
the Tourist Board)
11.00 a.m. - 2.00
p.m. and 5.00 p.m -
10.00 p.m.

38. FL 12
Rest House
License
11.00 a.m. -
11.00 p.m.
10 FL 13
Proprietary
Club License
11.00 a.m. -
2.00 p.m. and
5.00 p.m -
11.00 p.m.
11 FL 13 A
Members only
Clubs/Social
Club License
11.00 a.m. -
2.00 p.m. and
5.00 p.m -
11.00 p.m.

39. A controlled price has not been set on liquor kept for sale in
Excise licensed premises keeping in line with the open trade
policy. However, all liquor manufacturers or wholesale dealers
should indicate the respective price on each and every bottle
while liquor should be sold to that price indicated on the
bottle. Said prices should also be displayed in the Excise
Licensed premises for sale of liquor. If the selling prices are
not displayed in excise licensed premises which sell liquor to
be consumed within the premises, respective prices should be
given in the Menu Card.

40. * there is a book keeping (Accounting) method to be
maintained with respect to stock changes and the
daily trading of the excisable items which are kept for
sale in various excise licensed premises for sale of
liquor, using the specified formats. Said accounts shall
be checked by the Excise Officers

41. * Alcohol is a drug. Historically it was used, like other drugs, to
treat disease. And like other drugs, it is also a substance to
which people can become addicted. Despite the fact that
alcohol often creates a euphoric state in the user, it is a
depressant
* All that said, it is important to remember that no hospitality
manager has a “ right ” to serve alcohol; rather, it is a
privilege that is carefully regulated by law, and one that
cannot be taken lightly.
Privilege of Alcohol Service

42. * Intoxication: A condition in which an individual’s BAL
reaches legally established levels. These levels are not
uniform across the United States. An intoxicated per-
son may not sell or purchase alcohol, nor operate a
motor vehicle.
* BAL :A measurement, expressed in a percentage, of the
con- centration level of alcohol in the bloodstream. Also
known as blood alcohol content, or BAC

43. * Alcohol is sold in an amazing variety of hospitality
locations. Bars, amusement parks, golf courses,
sporting events, and restaurants are just a few of the
venues where a guest may legally buy alcohol.
* those who sell alcohol are required to apply for and
obtain a liquor license or liquor permit to do so.

44. * To understand the complex laws that regulate liability for
illegally serving alcohol, it is important to understand that
there can be at least three parties involved in an incident
resulting from the illegal sale of alcohol.
* First party : The individual buying and/or consuming the
alcohol.
* Second party : The establishment selling or dispensing the
alcohol.
* Third party : An individual not directly involved in a specific
situation having to do with the sale or consumption of
alcohol

45. * There is a misconception by some that the common
law did not hold an organization that served alcohol
liable for serving an intoxicated person. That is not
the case. Under Common law, a facility that
negligently served alcohol to an obviously intoxicated
guest could be sued for negligence if harm came to
the guest. What is relatively new in many jurisdictions
is that third - party liability can also be imposed on
those that serve alcohol.

46. * Historically, courts in the United States have not
found that those who host parties where alcohol is
served should be liable for the subsequent actions of
their intoxicated guests.
* Though a social host is not held to the same standard
of care responsibilities as a licensed provider of
alcohol, towards a minor the same standard of care
exist.
Social Host

47. * Davis v. Hulsing Enterprises, __ N.C. App. __ (April 5,
2016)– US Judgmnet.
Case Law

48. End of Session
Thank you