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Out-Law Guide | 12 Apr 2018 | 11:16 am | 5 min. read
This guide was last updated in April 2018
Offences and enforcement provisions in respect of non-compliance are created by UK regulations.
Food businesses are required to put systems in place to identify and respond to food safety problems in order to protect human health. Proper responses may require food to be withdrawn from the market or recalled from consumers in certain circumstances. Any such interventions must be notified to the Food Standards Agency.
This guide only summarises some of the more important regulatory provisions governing food safety. Reference must be made to the legislation itself to determine compliance.
The General Food Law Regulation
The EU's General Food Law Regulation was passed in 2002. Its principal aim is to protect human health and consumer interests.
In pursuit of this aim, the regulation requires that:
The food safety requirement
Food must not be placed on the market if it is unsafe.
When considering safety, the normal conditions of use (for example, whether the food is to be cooked) and the information which is given to consumers on labelling will be borne in mind.
Food will be deemed unsafe it is either injurious to health or unfit for human consumption.
In deciding whether food is injurious to health, short and long-term health impacts are relevant, as are the particular sensitivities of a specific category of consumers so long as the food was intended for that category of persons. For example, peanuts will not be deemed injurious so long as appropriate allergen warnings are given.
The question of unfitness is addressed in terms of unacceptability. Food may be unacceptable, and so unfit for human consumption, because it is contaminated (including by the presence of foreign bodies) or because it has deteriorated (for example, through decay or putrefaction). If part of a batch is deemed unsafe, the remainder of the batch will be viewed in the same way unless the business can prove otherwise.
The traceability requirement
Food businesses need to be able to identify their suppliers and the businesses to which they supply products so that they can provide that information to the authorities on demand.
It is intended that this traceability should help achieve prompt, targeted and accurate withdrawals in the event of safety problems.
Businesses at all stages of the food chain are required to retain this information around the flow of food. This includes primary producers, manufacturers, wholesalers, retailers, transporters and distributors. The format in which the information is held is up to the individual business.
At face value, the legislation requires details only of the supplier and the customer: 'one step back' and 'one step forward'. In practice, these records should detail the name and address of the supplier and customer, the nature and quantity of goods transferred, the date of the transfer and, where relevant, batch numbers. The regulation does not specify for how long records should be held. Businesses should make their own judgements, taking into account the life span of the product.
The withdrawal/recall requirement
A food business must withdraw from the market food which has left its control if it has reason to believe that it does not comply with food safety requirements.
In making a judgement as to safety, the business should consider whether, in the normal conditions of use, the food is likely to injure the health of consumers or be otherwise unfit for human consumption. This should be an objective decision.
Withdrawal is the process by which a product is removed from the supply chain, save product which is already in the hands of consumers. It requires the cooperation of other businesses within the supply chain. A retailer, for example, will be required to respond to a withdrawal by taking a product off the shelf and by sharing information about stock levels.
Businesses are also required to cooperate with the competent authorities, those being the Food Standards Agency and the relevant local authority. The aim is that responses to food crises will be effective and timely.
A business which triggers a withdrawal should notify the competent authorities. If the withdrawal takes place in the belief that the food is injurious to health, that notification should take place immediately.
If food deemed to be unsafe may have reached the final consumer, they should be told about the reason for withdrawal. If advice is not sufficient to ensure public protection, the food must be recalled. Recall will direct consumers to take appropriate action – for example, to return or to destroy the food in question.
Offences under the regulation
The General Food Law Regulation is directly applicable in the UK. Non-compliance with the requirements outlined above is made an offence by the 2013 Food Safety and Hygiene (England) Regulations, which also provide for the execution and enforcement of various EU food hygiene regulations.
In summary, it is an offence to place unsafe food on the market, to fail to maintain traceability and to fail to withdraw/recall where these interventions are necessary. These offences are triable 'either way', capable of being heard in the Magistrates' Court or the Crown Court. They are subject to unlimited fines in the Magistrates' Court as well as in the Crown Court. There is also scope for imprisonment of individual defendants: up to two years in the Crown Court; and up to three months in the Magistrates Court but only for obstruction.
Enforcement falls to local authorities and to the Food Standards Agency. Local authority officers enjoy broad powers under the 1990 Food Safety Act which assist them in investigating contraventions, including powers to enter premises and to inspect and seize records; and to take samples for analysis. It is an offence to obstruct officers, or to fail to provide them with information on request.
A business charged with these offences can raise a defence of due diligence in an attempt to avoid conviction. This requires it to prove that it had taken all reasonable precautions and exercised all due diligence to avoid the offence which took place. As part of such a defence, the business can rely on the act or default of named individuals.
The Food Safety Act retains additional offences including to render food injurious to health by adding something to it; or abstracting something from it; or by subjecting it to a process or treatment. This is distinct from the liability which flows from the EU regulation for placing on the market food which is injurious.
It also remains an offence to sell to the consumer's detriment food which is not of the nature, substance or quality demanded. In some cases, this offence might be used interchangeably with the offence which arises out of the EU regulation.
These offences carry a maximum fine of £20,000 in the Crown Court but an unlimited fine in the Magistrates' Court.
Diversity and Inclusion - best laid plans
Fintech meet up