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Food And Drink: The Safety Regulators Set Out Their Stall

Food And Drink: The Safety Regulators Set Out Their Stall

Last week the Food Standards Agency (FSA) and Food Standards Scotland (FSS) released an important report on food crime in the UK.  The National Food Crime Unit and the Scottish Food Crime and Incidents Unit were established in the wake of the horse meat scandal in 2014 to focus on enforcement and help restore consumer confidence. This, their first report, considers the risks from food related crime committed in the UK and the additional risks posed by imported products.  The UK food, drink and catering industry is worth £200 billion and accounts for 11% of the UK economy.  Preserving its reputation for high quality is a key driver of the proposed enforcement strategy, with whisky, beef, salmon and berries highlighted as top Scottish products. A survey by FSA in May 2015 found that nearly 50% of respondents were concerned about food safety in UK restaurants and 42% worried about the food sold in shops and supermarkets. 65% of UK consumers expressed concerns about imported food.

The report identifies increased risks of fraud due to global climate events affecting crops such as sugar, coffee and bananas. Narrow profit margins and challenging contractual relationships are seen as motivating factors which could lead to fraudulent activity within the UK food chain.  Historically the penalties imposed on offenders under the criminal justice system are thought too lenient to have provided any real deterrent effect.

The report refers to a rural crime survey conducted by NFU Mutual in 2015 which suggests that there has been a sustained increase in livestock theft, with 90,000 animals being stolen from UK producers in 2014 alone. Some of that is likely to have entered the food chain illegally. Mislabelling of meat and eggs is seen as a major challenge with consumers being misled as to geographic origin and free range or organic status.  Some of the examples in the report are rather unpalatable, including one from August last year when an event caterer was found storing meat unfit for human consumption and intended for the pet food trade. Alcoholic drinks are in a high risk category and later this year HM Revenue & Customs are introducing compulsory registration of alcohol wholesalers along with a requirement to pass a “fit and proper” test.  From April 2017 it will be an offence to buy alcohol from non registered wholesalers.

The report suggests that the primary focus of the Regulators’ enforcement action will be where there is evidence of dishonesty rather than a negligent breach of regulation, at least in the first instance.  What is clear, however, is that because of its importance to the UK economy the food and drink sector is likely to face more intervention and a more robust use of enforcement powers.  Whilst the sector as a whole will benefit from these measures if they increase consumer confidence and safeguard its reputation, the price for individual businesses will be a greater level of scrutiny.  The onus is on every business to risk assess their operations and supply chain and put in place measures to protect consumers from the risks of adulteration, substitution, diversion and misrepresentation. Where food fraud can impact safety, all producers and suppliers have existing duties under UK health and safety legislation to protect consumers from such risks.  Where a business fails to take any steps to assess the risks or put in place reasonably practicable protective measures they could be criminally liable. That is in addition to the significant financial losses they may suffer as the victim of the fraud.

The Regulators are looking to the industry to police itself and report suspicious activity. They are relying on the vast majority of legitimate businesses to be their eyes and ears. But they are also sharpening their teeth.  New sentencing guidelines recently introduced in England and Wales have dramatically increase penalties for food safety and hygiene offences where there has been deliberate disregard or wilful blindness to the risk of harm. The Scottish Sentencing Council has not yet issued guidelines but the need for penalties which will have a deterrent effect is recognised. 

The food and drink industry has an opportunity to identify and implement effective measures to control the risks posed to businesses within the sector and to the public. What is clear from this report is that if it does not do it the Regulators will step in.

Rona Jamieson
Partner

Burness admin