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All Change For Food Law Enforcement In Scotland

All Change For Food Law Enforcement In Scotland

Things are really hotting up (to at least gas mark 5) in Scotland’s food law arena. Our new regulator Food Standards Scotland replaces the Food Standards Agency in Scotland on 1 April 2015, at a time when concerns continue to be raised over the integrity of our supply chains, the traceability of our food and the information we are provided with to make informed – and safe – nutritional choices.

In the past few months alone we’ve had cases of counterfeit (and potentially deadly) vodka surfacing, an emerging “undeclared nuts” scandal and a new Groceries Code Adjudicator struggling to fix any major retailers in its crosshairs, or find its trigger despite seemingly ample ammunition. Then came headlines of mass infection of supermarket chicken with major food poisoning bug campylobacter, an issue that arguably still hasn’t been resolved given that reliance appears to have been placed more on consumers properly cooking infected chicken (which kills off campylobacter bacteria) rather than industry taking concerted action to cut it off at source. Naming and shaming some big name retailers has, however, given some campylobacter culprits something to chew on for the moment, with calls for improved slaughterhouse methods alongside experimental flash-freezing and steam-treating of chickens before they arrive anywhere near shop shelves.

Throw into that mixture a new specialist anti food-crime unit and potential changes to court sentencing for breaking food safety law, tying fines more closely to harm caused and to financial means of the offender, then food businesses and consumers alike could be forgiven for having uneasy stomachs. In particular, organisations with higher levels of turnover may find themselves having to swallow substantially increased fines for food safety offences. While sentencing policy changes would affect only England and Wales initially, the nascent Scottish Sentencing Council could look to follow suit when it enters the fray in October 2015.

In terms of enforcement, the Food (Scotland) Act 2015 ensures that Food Standards Scotland (FSS) has far stronger ingredients than its predecessor, with a focus on improving public health, minimising food information fraud and putting in place a strengthened and simplified penalties regime. Enforcement officers will be armed with powers to seize food which is unsafe, or is not what it says it is. Fixed Penalty Notices, “administrative” or non-court sanctions which levy fines for food law offences, have also been added to the arsenal along with Compliance Notices. But more than that, there is now a legal duty on food business operators (FBOs) to report non-compliance with food information law to FSS. This applies where the FBO “considers or has reason to believe” that food information law is being breached regarding food in their charge which is intended for human consumption. The potential impact up and down supply chains of this whistle-blowing obligation is obvious; the legislation makes clear that “being, or having been, in charge of” non-compliant food covers any food which the FBO has received, imported, produced, processed, manufactured, distributed or otherwise placed on the market. Ignore suspicious labels at your peril!

Interestingly, there is scope for FSS to have different performance standards for different enforcement authorities and different types of food legislation. This may open the door to higher food law enforcement standards being applied in Scotland than in other parts of the UK. Which brings us to why FSS was deemed necessary in the first place: responsibility for nutritional policy and food labelling law was taken away from the UK Food Standards Agency in 2010 and transferred to different government departments. In an almost literal case of “too many cooks”, once the horsemeat scandal took hold confusion reigned over who was actually responsible for leading the investigation. Given that Scottish food labelling policy has always rested with our food standards regulator, significant capacity for action in Scotland had been removed by this slicing up of responsibilities at the UK level. This power gap has now been addressed, just as it is becoming clearer that issues with food supply chains, food safety and food information affect all of us, every day (for at least three meals, anyway). So mind that takeaway, cook your chicken properly, always read the label, and hold your tongue before saying “I’m so hungry I could eat a horse”...

Adam McCabe
Solicitor

Adam's previous article on food regulation changes can be accessed here.

LChalmers