Penalty for Compliant Food?

Food business operators bear significant responsibility — and the absence of self-monitoring can prove costly.

The Regional Administrative Court of Vorarlberg examined the requirements for self-monitoring in food businesses in its decision (LVwG-1-889/2023-R18). The ruling underlines the strict legal obligations placed on food business operators — even where no immediate risk to health can be demonstrated.

What Does Self-Monitoring Mean?

Under § 21 LMSVG, food businesses are required to ensure compliance with food law through regular self-monitoring. This includes in particular:

Microbiological testing to detect pathogens such as Listeria monocytogenes at an early stage.
Hygiene controls to minimise contamination risks in production.
Documentation of monitoring results to demonstrate compliance with statutory requirements.

These measures are essential to ensure food safety and to avoid legal consequences.

Penalty Despite Compliant Products

In a dairy, Listeria monocytogenes was detected on the floor — but not in the food products themselves. Nevertheless, the managing director was convicted under § 90(4)(2) LMSVG for failure to carry out self-monitoring and inadequate documentation, and fined €3,000.

The reason: the absence of self-monitoring can be penalised even without contaminated products. Authorities expect not only hygiene measures to be in place, but also proof of their effectiveness through systematic self-monitoring. Failure to document this exposes operators to penalties — even where the product itself is perfectly safe.

Court Sets Aside the Penalty

The court set aside the penalty because the charge was not formulated with sufficient precision. Since the limitation period had already expired, the court was no longer permitted to rectify this deficiency. The first-instance penalty therefore had to be quashed.

FAQ: Self-Monitoring in Food Businesses

Why is self-monitoring mandatory under food law? Food hygiene legislation such as the LMSVG and Regulation (EC) No 2073/2005 requires businesses to ensure that their products and production environments meet hygiene standards.

What are the consequences of failing to carry out self-monitoring? Businesses that do not conduct regular and documented self-monitoring may face fines — even where no contamination is found in the products themselves.

How can food business operators protect themselves? Regular sampling, comprehensive documentation of self-monitoring activities, and the implementation of a HACCP system help to minimise legal risks.

More Food Law:

Some of the following articles are in German.

About Sabadello Legal

Sabadello Legal advises and represents manufacturers of food products and food supplements, among other areas. Our clients include food law start-ups as well as established SMEs and international corporations. If you have questions about food law, we would be happy to assist. We advise on food law (LMSVG), labelling and compliance, and product controls — from risk analysis and regulatory communication through to defending against official measures and administrative penalties.

Contact

RA Mag. Andreas Sabadello
Sabadello Legal
+43 1 9971037
office@sabadello.legal

Disclaimer

This article is for general information purposes only. It does not constitute individual legal advice.