Official Statistics 2014/2015 

The Food Standards Agency (“FSA”) has today published official statistics for the year 2014/2015 on food law enforcement across the UK, compiled from information given to them by local authorities. The returns from local authorities cover food hygiene (microbiological quality and contamination of food by micro-organisms or foreign matter) and food standards (composition, chemical contamination, adulteration and labelling of food). Imported food returns (from Port Health Authorities) provide information specifically on enforcement action related to food imported from third countries. The statistics cover the period from 1 April 2014 to 31 March 2015.

The figures for 2014/15 show a continuing trend of increasing compliance levels across the UK: 93% are now broadly compliant with hygiene law. In Wales the improvement has been more pronounced, increasing over the past three years to 94% from 88% in 2012/13.

There is good news for responsible operators, as the trend for local authorities to target higher risk establishments, rather than carrying out due interventions at lower risk establishments, has continued across the UK (the requirement for interventions to be risk based is, of course, set out in the Food Law Code of Practice (England) 2015).

The FSA report also reveals that there was a slight reduction in interventions overall – down by 0.8% on 2013/14 levels. This is perhaps unsurprising given that local authority professional staffing levels are down 3.9%, according to the report.

Database of Prosecutions 

A word of warning must nevertheless follow the news of the official statistics for 2014/2015: if you are successfully prosecuted for food safety and hygiene offences, details of the prosecution will be made available online via the new FSA database of successful prosecution outcomes.

The database was set up earlier this year by the FSA and became available earlier this month. Press coverage reports that the FSA set it up as a support function for local authorities, to show what can happen following a prosecution and help them be more consistent.

The database includes a ‘live map’ available through the enforcement and regulation section of the FSA’s website. There is also a downloadable spreadsheet of all prosecution outcomes reported for 2015-2016. The database includes the name of the food business operator prosecuted, the trading name and address of the premises, the provisions / regulations breached, the nature of the offence, whether there was a guilty plea, the sentence imposed and the costs awarded.

Whilst the database was set up to assist local authorities, as it is publicly available online, it is possible that it will also be accessed by other businesses and individuals. As such, food business operators should be aware that customers (trade and/ or consumers) may check details of convictions registered against them; and adverse publicity may well be wider following a successful prosecution.

The Benefits of Due Diligence 

A due diligence defence is available for most food law offences i.e. it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control.

Whether the actions you actually take meet the test of ‘all due diligence’ and ‘all reasonable precautions’ will ultimately be decided by the court on a case to case basis. There is nothing that all businesses can do that will mean they will automatically meet the threshold of the due diligence defence (it will depend on all of the circumstances in the particular case).

However, the benefits for any food business operator of regularly checking whether the precautions they have in place are reasonable are underlined by: the food law enforcement statistics, which demonstrate that higher risk establishments are targeted for interventions; and by the potentially increased levels of publicity if you get things wrong and are included on the FSA database of successful prosecutions. From 1 February 2016, there will of course be the added pressure of stiffer penalties when the new sentencing guidelines come into force.

Food business operators should therefore regularly:

• Assess the risks – including risks from equipment, suppliers, ingredients, and food information;

• Review the system of safeguards in place to address those risks and ensure that it remains reasonable and adequate – systems could include supplier agreements/ warranties, policies and procedures, electronic systems for example in relation to allergen information, staff training and regular refreshers, testing/ sampling;

• Document the system implemented – for example by written training records (internal and external), signed policies, cleaning rotas/ records, pest control, lists of ingredients, communications to staff, testing protocols, audit results;

• Ensure the system of safeguards is operated in practice – policies must be used and embedded in the culture, cross-checks should be in place, internal and external audits may be helpful, reporting lines to management, sanctions for non-compliance;

• Review the system – ensure on an on-going basis that the system remains fit for purpose, update to include new equipment, suppliers, ingredients, risks, training of new staff for example.

There is no ‘magic pill or ‘perfect recipe’ in terms of the risk assessment or policies and procedures. The food business operator is, of course, the best placed to know what the risks are and what policies will work for their particular business. However, the continued focus on food law enforcement means that all food business operators should regularly review their systems to reduce the risk of enforcement and successful prosecution.