Sweet war: Happy Cake сonfectionery won lawsuit
The Happy Cake had a hard time proving the quality of its products in court.
The history of cakes from Happy Cake began in 2013. Soltanov's family baked to order at home and sold on Instagram. The case was established and expanded to a chain of stores in Nur-Sultan. The business was successfully developing with an extensive customer base, the clients were satisfied with the quality and taste of pastries.
However, since 2018, the company has had its first problems - the Department of Quality Control and Safety of Goods and Services of Nur-Sultan announced that the Company’s facilities do not fully meet the epidemic requirements. As of April 15, 2019, the Department began to inspect the Happy Cake. The Department issued a sanitary and epidemiological inspection report to detect the violation and a prescription to eliminate it.
In turn, the owner of the confectionery began to challenge this prescription, referring to the conduct of the inspection with gross violations of the requirements of the law, the lack of causal relationship between poisoning and the products of the partnership. In the course of the court session, the prosecutor gave a conclusion on partial satisfaction of the application.
It is worth noting that the inspection and preventive control and supervision with a visit to the facility are recognized invalid if they are carried out by the control and supervision body with a gross violation.
The reasons for the inspection were the four notices received from the people who connected their disease with the cake of the Happy Cake. However, the investigation revealed that there were no complaints against the Happy Cake during this period (14 April to 27 May 2019). In addition, the Company provided the court with notarized statements from the affected persons, who wrote that they had not filed complaints with the state authorities and they had no claims against Happy Cake, as the source of the contamination was found to be another product.
Thus, the absence of appeals and registration of individuals and legal entities testifies to the lack of grounds for the inspection.
Among other things, the Department went beyond the requirements of the Sanitary and epidemiological rules and regulations. Thus, they mentioned as violations of the absence of separate premises, a storage room with refrigeration equipment, an egg-bit of three rooms, etc.
In addition, according to Article 151 of the Entrepreneurial Code, the officials of the control and supervision body have no right to take samples of products without registration of protocols in the prescribed form. Violation of this restriction leads to the invalidation of the inspection. The Department has not executed the protocols of sampling at the facility following the requirements of these norms of the law and the sampling procedure is violated, which entailed the violation of the rights and legitimate interests of the company.
Based on the act of sanitary-and-epidemiologic examination of only 4 cases of acute intestinal infection for the period of the inspection, 9 people sought medical treatment and indicated that they fell ill after consuming Happy Cake confectionery products. There are 13 people affected. They've been finally diagnosed with salmonellosis. An official special investigation did not identify the source of the infection in any of the cases.
The Office's argument that the cake was only a factor in the transmission of the salmonella bacteria was not taken into account, as the investigation did not establish from which sources the cake was contaminated.
According to bacteriological studies, salmonella was not found in any of the samples taken at the Company’s facility. It was not revealed based on the results of the sampling of food products, flushing from the external environment, and water.
According to the conclusions of specialists - microbiologists, doctors of biological sciences, contamination of the cake on the premises of the company is practically ruled out if the salmonella is not found in any of the samples seized at the company's facilities.
As a result, the court decided to declare illegal the actions of the Republican State Institution "Department of Quality Control and Safety of Goods and Services of Almaty District of Nur-Sultan" concerning the Happy Cake, as well as their results.
By the way, the situation with the Happy Cake confectionery became one of the reasons to revise the current sanitary and epidemiological requirements. The issues of revision of sanitary rules in the sphere of public catering and food production were considered during the round table in the Atameken NCE RK.
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