Food safety is essential not only to consumers but also businesses involved in the production and supply of food. Consumers must have confidence that the food they buy and eat will not cause them harm. Food businesses have a clear legal duty to ensure that food served or sold to customers is safe and fit for human consumption and the owners and proprietors of all businesses, whether incorporated companies or otherwise, are responsible for ensuring that the law is strictly observed at all times. Kangs has considerable experience in representing businesses and their owners facing prosecution for environmental health and food law offences.
We frequently advise on:
- All aspects of Environmental Health and Food Safety Law
- The content and legal implications of an Improvement or Prohibition Notice and the action required to satisfy the requirements thereby imposed
- How to deal with any forthcoming interviews under caution to be conducted by the Local Authority, and we attend to provide the necessary advice and support
- Proceedings that have been issued and prepare such defence as may be available for presentation to a Court
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The Food Safety Act 1990 contains the framework for all food legislation and creates three offences:
1. Rendering food injurious to health (section 7). This covers circumstances where a person is alleged to have added or extracted an ingredient from the food which then makes the food injurious to the health of the recipient. An example may arise where an additive is added to the food item that has not been approved for consumption and which has caused harm to the consumer.
2. Selling food which is not of the nature or quality demanded (section 14). This covers situations where a food product is misrepresented as to content such as a fish and chip shop selling cod as haddock or farm factory eggs being sold as free range.
3. Falsely or misleadingly describing or presenting food (section 15). This covers misleading labels or advertisements that falsely describe or present the food item in a way which misleads as to its nature, substance or quality such as asparagus purporting to be grown in the Vale of Evesham when it has been imported from Peru.
Supporting Regulations (‘the Regulations’)
In addition to the Act, there are also numerous Regulations, from both the EU and the UK, the most important being:
- Food Information Regulations 2014
- The Food Safety and Hygiene (England) Regulations 2013
- The General Food Regulations 2004
- Regulation 852/2004 (relates to the hygiene of foodstuffs)
- Regulation 853/2004 (sets out hygiene rules for foods of animal origin)
- Regulation 854/2004 (covers the specific controls of foods of animal origin)
The Food Standards Agency states that the main responsibilities for all food businesses covered by the Act are to ensure that:
- Businesses do not include anything in food, remove anything from food or treat food in any way which means it would be damaging to the health of people eating it
- The food businesses serve or sell is of the nature, substance or quality which consumers would expect
- The food is labelled, advertised and presented in a way that is not false or misleading
They give further guidance specifically in relation to:
- Premises (keeping them clean, maintained and in good repair and condition)
- Equipment (all fittings and equipment that food touches must be cleaned effective, Made of the appropriate materials and installed to allow cleaning)
- Contaminated food (including storage and pest control)
- Food waste (adequate facilities for storing and disposing)
- Personal hygiene (suitable clothing and effective handwashing)
- Transport (condition and maintenance of vehicles/containers to transport food
Enforcement for breaches of environmental health and food hygiene is primarily the responsibility of Environmental Health and Trading Standards officers of the local authority. Trading Standards officers are primarily concerned with food labelling whereas Environmental Health officers, are, ultimately, concerned with the hygiene of food premises and contamination of food. The work of the local authority in this area is overseen by the Food Standards Agency which is responsible for implementing national uniformed guidance such as the Food Law Codes of Practice. The Act empowers authorised officers to:
- Enter food premises unannounced to investigate possible offences (It is a criminal offence to refuse an authorised officer entry)
- Inspect premises, processes and records
- Inspect food to see whether it is safe
- Take samples of and seize food and food ingredients
There are a number of enforcement powers open to authorised officers and these include:
Hygiene Improvement Notice | Prohibition Orders Improvement Notices
These require business owners to undertake specific measures in respect of their business. The Notice will provide for the work required to be remedied within no less than 14 days. Failure to make the improvements within this time, may lead to prosecution.
Prohibition Orders These prohibit the use of a particular premises or equipment.
Emergency Hygiene Prohibition Orders (Closure Order/Notice)
These may be issued where the authorised officer believes there is an imminent risk of injury to health.
These types of Orders, imposed by the Magistrates’ Courts, can have serious consequences for a business and if the Court decides that a business should be closed, it will remain closed until the conditions that pose the imminent risk to public health have been put right.
Emergency Control Orders
These may apply in order to remove substantial threats to public health i.e. the prevention of distribution and sale of contaminated food.
The local authority can ultimately commence legal proceedings in a criminal court for any breach of the Act or the Regulations
Possible defences to prosecution provided by the Act
There may be a defence if it can be shown that:
- Due diligence was exercised i.e. that the person responsible took all reasonable precautions to avoid the commission of the offence
- The offence was due to the fault of someone other than the person charged
Sentencing following conviction for breach of the law
Breaches of the Act and the Regulations can result in:
- A substantial fine, in respect of which no limit is imposed upon the sentencing court,
- A period of imprisonment for up to two years
- A ban from running a food business again
If a business has been closed down under an Emergency Prohibition Order, there exists a right of appeal to the Magistrates’ Court to seek to overturn the Order and, if this not successful, a further appeal to the Crown Court may be made. There are often strict time limits for appealing so immediate action should be taken to challenge a local authority’s decision.
Many food businesses are now participating in the National Food Hygiene Rating Scheme operated by the Food Standards Agency, although participation is not compulsory. The scheme scores the hygiene rating of businesses and the ratings are published on a public register which can be checked by members of the public in a matter of minutes. A bad rating can, therefore, have a negative impact on a business if the assessment produces a low rating. Any business which is not happy with the rating which has been made, may be able to challenge the local authority’s decision by:
- Ensuring that any concerns raised by the local authority are rectified and then
- Asking the local authority to re-rate the business and, possibly,
- Challenging the rating through the Courts