0:03
Good morning, everyone, and welcome to today's webinar, which is on Food Law Basics, Safety and Compliance in a Dynamic Industry, which is being presented by our professional affiliate members, Walker Morris. First of all, thank you to everyone for coming today.
0:17
We hope that you found the content useful.
0:19
There will be a Q &A at the end, so please put any questions that you have into the questions box and we'll do our best to go through as many as we can at the end of the webinar.
0:27
Any other questions that we aren't able to cover in the session, we can get in touch with you afterwards to reply.
0:32
We'll also be doing a few polls throughout this session so please do respond to those when they come up on the screen and following the webinar we'll be sending you an asker email in the next couple of working days and that will contain a recording of the webinar, a copy of the slides and the contact details of today's presenter.
0:48
So without any further ado I'll hand you over to today's presenter Chris McGarvey.
0:54
Well thank you Luke for that introduction and good morning everyone. It's great to be with you to talk about food law basics.
1:06
The objective really of today's session was as an introduction to food law for those who are new to the industry.
1:16
and its objectives are quite modest.
1:20
We are going to be concentrating our efforts over the next three quarters of an hour or so on what is known as general food law, that is regulation 178, 2002.
1:34
I'm conscious that many of you joining today's webinar may have some existing knowledge of food law, in which case I hope that today's material amounts to a good refresher on some of the basic principles involved in basic food law.
1:58
So with that said, let's get into today's session.
2:05
Let's have a look at the balance sheet.
2:09
So looking at the food balance sheet, we have on the credit side, an industry which is worth some £104 billion annually to the UK economy, so a very significant part of the UK economy.
2:27
I think it amounts to the UK's largest manufacturing sector.
2:32
£104 billion makes it bigger than the UK aerospace and automotive industries combined.
2:44
On the debit side of the ledger, we have something in the order of 16 ,000 hospitalisations each year in the UK due to foodborne illness.
2:59
And sadly, of those 16 ,000 or so people, something in the order of about 180 people will sadly die each year as a result of their illness.
3:16
So, I think the question for us in the industry and also, of course, for policymakers is how do we minimise the negatives while maintaining and building on those economic positives?
3:34
And the legislation which attempts, at least in part, to answer that question is Regulation EC 178 2002.
3:45
Now, this, of course, is known, I'm sure, to many of you as the general food law.
3:52
The reference assimilated, for those of you who don't have a legal background, is that this used to be a piece of EU law which has become now a domestic piece of legislation.
4:08
it's been kept by us following EU exit and now forms part of UK law.
4:19
So let's have a quick look at or take an overview really of what is included, what 178 covers and I'm going to take these elements in kind of reverse order.
4:31
As I think I've already mentioned, the principal effect of 178 is to set a basic foundational food safety standard, and we're going to come on to look in detail at how that standard is composed, how it's framed later on during this morning's session.
4:58
It also, helpfully for English lawyers at least, it has some very familiar concepts to English law.
5:10
Certainly the notions of safety of food are framed in such a way that they are reflective of concepts which go back at least to the late 19th century actually in English law.
5:26
So it's helpful that it draws on those concepts and has some familiarity to us in the UK.
5:36
Also, it covers the whole of the food supply chain.
5:40
So through from harvesting of crops, slaughter of animals, through to food eventually finding its way onto our kitchen tables or our restaurant tables, known as the the farm to fork principle.
5:58
So very broad in its application and also I think worth noting that the treaty base for this EU enactment was an internal market base.
6:13
It's as much about free movement of food within the EU as it is about consumer protection and I think that's That's quite an important thing to remember as we go through today's session.
6:33
So I suppose probably the most basic question is, what does regulation 178 consider to be food?
6:42
And Article 2 tells us that food is any substance or product partially processed or unprocessed, intended to be, or reasonably expected to be, ingested by humans.
6:59
So clearly that's, on first blush, you can see that's a very broad definition, any substance or product.
7:07
The law itself does have some exclusions.
7:09
I haven't actually included those on the slide simply for brevity, but certain things are excluded from the definition, things such as cosmetics, pharmaceuticals, nicotine.
7:24
There are a number of exclusions from substances and products, but basically you've got a very broad reference letter to any substance or product.
7:34
The end of that definition is worth just spending a little bit of time on.
7:39
The notion of intended to be or reasonably expected to be ingested by humans.
7:47
And I think that that distinction is perhaps best illustrated by, well it can be illustrated by looking at soft cheese as an example.
7:59
So with soft cheese, very popular with many of us, you usually have the cheese and you have its rind and many people will discard the rind but eat the soft cheese.
8:15
I'm not actually one of those persons, I will eat rind and the way in which this definition is phrased is to obviously extend the notion of what is food to anything which might actually get eaten at the same time as the main product and that certainly would be the case with soft cheese where many people will eat the rind.
8:38
So it's sensible if you think about it that the notion of food should be as broad as possible so that the protections that people need when they consume a substance are there.
8:52
And that really explains why the intended to be or reasonably expected to be ingested formula is used. The notion of processing is, again, it's a defined term.
9:08
I haven't actually included the definition, but it's suffice to say that processing means something which materially alters the initial product.
9:17
So it's not just about cooking or processing food into a final product.
9:24
Processing is also a reference to slicing, dicing, and preparing in that way.
9:32
So essentially, a very broad notion of food.
9:39
The article also includes a classic avoidance doubt provision, as lawyers would call it, which just makes clear that food includes drink, it includes water, it includes ingredients in a recipe, so a compound food that's made of different ingredients, it includes all of those ingredients, and it includes water also.
10:06
I think the reference to chewing gum is a slightly odd one, but I'm sure I'm not alone saying that as a child I swallowed my fair share of chewing gum and I'm sure many of you on the call have done that too. So good that all of these things are included and subject to protections.
10:34
So who is a food business operator?
10:38
That's a question obviously of considerable importance to many of you, a food business, first of all, means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities relating to production, processing, and distribution of food.
11:00
So I think an important notion here is it doesn't matter what sector you're in, you can be in a sector which is operating for profit such as a food manufacturer, supermarket, a restaurant or you can be in the public sector, you could be providing school dinners, you could be at the hospital kitchen producing food for NHS patients.
11:30
Regardless of the sector, if you are involved in doing anything really with food and production processing distribution, so that's again the whole supply chain through from primary production at the farm to preparation in the kitchen and serving.
11:49
Any of those stages, distribution too, so even if you are only involved in kind of the very end stage of the food supply chain, you're an Uber cyclist delivering Uber Eats delivery, that's distribution and you are involved in that.
12:11
You will be classed as a food business and covered by regulation 178.
12:18
So someone has to operate a food business and the article tells us that food business operator is the natural or legal person responsible for ensuring that the requirements of food law are met.
12:37
And for those non-lawyers amongst you, you will see the reference here to natural or legal persons.
12:45
And again, many of you will know this, but just for the sake of clarity, what that's driving at is obviously many companies, well, many food businesses are operated as limited companies.
13:00
and a limited company is an artificial legal person, it's not a natural person like you or I.
13:10
And the definition here makes it clear that regardless of your form of business operation, so whether you're a sole trader, acting as a natural person, or you run your business as a limited company and you're acting as a legal person, you are a food business operator.
13:30
so the form of business matters not.
13:34
And in fact that point is underlined by just looking back there at the first bullet point, this notion of an undertaking.
13:45
Well an undertaking is a very much an EU law drafting device which is designed to really be a kind of a portmanteau phrase for any form of business.
13:59
So whether you're a sole trader, you're a partnership or a limited liability company, undertaking is a general reference to all of those forms of business.
14:11
So the idea is here that you can't avoid the application of general food law simply by choosing a particular form of business organization.
14:23
And again, so a very broad coverage here for what is a food business, who is a food business separator.
14:31
I'm not gonna mention too much case law in this presentation, but a case which is relevant and perhaps should be understood by those involved in food businesses is a case called Rasool against Tower Bridge Magistrates.
14:49
And this was a case in which a natural person involved in a business which was being run as a limited company, basically tried to avoid liability for food law offences by saying, look, there can only ever be one food business operator for a food business, and that is my company.
15:09
It's the company that's responsible for these breaches, and I therefore cannot be held responsible for any of them.
15:16
And the court said, no, that's not the case.
15:22
A food business of whatever description is capable of any one time being run by more than one food business operator.
15:32
And that can include, as we see from the definition here, a natural or illegal person.
15:37
And in this case, the senior operator of the business or the senior individual involved in this business was also a food business operator and therefore also liable for breaches.
15:54
So be aware that there can be more than one food business operator for a business.
16:00
And if you are a senior officer of a business or a senior individual, senior manager, you could find yourself being classed as a food business operator for the purpose of the law.
16:14
So an important point to note there.
16:22
So having talked about the obligations under food law and the fact that it introduces this basic safety requirement, which we're going to be looking at, I think an obvious question is at what point do those obligations come into operation?
16:44
At what point are these obligations engaged?
16:49
And general food law takes as its threshold point for imposing these obligations the notion of a point of placing on the market.
17:02
That is the the law switches on if you like, and you as a food business operator begin to become subject to its rigors.
17:15
Article three tells us what placing on the market means.
17:21
And it essentially here is, well, it's talking about two things actually.
17:25
It's talking about the holding of food for the purpose of sale.
17:30
And it's also talking about the sale itself.
17:34
Okay, so there's two elements to this definition that are quite important.
17:39
The holding of food for the purpose of sale and the sale itself.
17:44
I think what that's telling us is that the food doesn't actually have to be on your supermarket shelf or in your display window with a price on it to have been placed on the market.
17:59
It's enough that it's being held for the purposes of sale And that's generally understood to mean, you know, in a store room, at the end of a production line, it needn't be anywhere near the consumer yet.
18:15
As long as it's been produced and it's somewhere in the supply chain, this definition will catch it.
18:23
It's placed on the market at that point, really, the point of production.
18:29
And that's clear from this distinction between holding for the purpose of sale and sale itself.
18:36
So be aware that this notion of placing on the market comes very early in your involvement in the food, wherever you are in the supply chain, whether you're a primary producer, whether you're a supermarket retailer, the moment you kind of have that food in your control, knowing that ultimately it's going to be sold, you will find that you're holding it for the purpose of sale and therefore you're responsible already for compliance with general food law.
19:08
Also, I think relevant to, sorry if we just flipped back there, let me try to get back to where we were. There we go, is that okay now? Yeah.
19:25
Also, I think relevant to this notion of placing on the market, we need to look at this indication that it doesn't matter whether you sell a food or whether you give that food away.
19:41
It's clear here whether free of charge or not. So this is not just about selling for profit.
19:48
Food law will apply even if you are, let's say, a start-up and you are giving away some new products for free as a promotion to test the market, that's the only thing you do, that will still be a placing on the market even though you're not charging.
20:09
And equally, those of you who, as part of your ESG or other commitments, are donating food to food banks or similar.
20:19
Again, the fact of donation makes no difference to your liability for compliance. The law applies in full in those circumstances even where you are giving away food.
20:36
So Luke, I think we have a poll question which we're going to introduce at this point.
20:40
I'll just hand over to Luke to do that.
20:45
Yeah, here is the first poll.
20:47
So it should be on your screen now.
20:49
The question is, does your business ever give away food for free, whether as a product promotion or as a donation?
20:56
So either yes, no, or I'm sure.
20:59
Just give you a few seconds to do your answers for that.
21:08
See a lot of the answers coming in now.
21:10
A few more seconds.
21:17
Cool, thanks very much.
21:19
Brilliant, thanks Luke.
21:24
Okay, so thank you for taking part in that.
21:28
We are now going to move on to, I suppose, what is the beating heart, if you like, of general food law. It's Article 14 on food safety.
21:42
And I think, again, many of you will already um have some knowledge of of article 14 or have come across it during the course of your um your work in the sector even if you're fairly new I suspect this is something which is on the curriculum of many food businesses inductions um very early at very early stage of your joining it.
22:07
The article is clear that food shall not be placed on the market if it's unsafe.
22:15
So what does unsafe mean in this context? Well, it can mean either of two things.
22:23
Food can be unsafe if it's injurious to health or if it's unfit for human consumption.
22:32
Now, I think these two things are worth just spending a little bit of time on and trying to to properly unpack the difference between the two of them.
22:46
Now somewhat surprisingly, certainly I found as a new food lawyer, there isn't an awful lot of case law around these two notions.
23:00
There is some, but not an awful lot.
23:02
And I think perhaps the reason for that is often it's fairly clear.
23:09
It's a matter of common sense whether someone has been injured or harmed by consuming a food.
23:16
If it can be shown that a food has some biological contamination, such as salmonella or E.
23:23
coli, and someone gets food poisoning as a result of that, it's pretty clear that that's an injury.
23:31
it's been injurious to that person's health.
23:36
I think it's slightly harder to know what is meant by the second of those two criteria there, the unfit for human consumption.
23:51
We do have some English judicial commentary around unfitness.
23:58
And what it tells us is that unfitness means something more than simply unsuitable.
24:07
So, for example, a stale loaf of bread may be unsuitable, but it probably hasn't crossed over the line to unfitness.
24:19
Though clearly with stale bread, can do lots of useful things with it.
24:23
You can turn it into breadcrumbs, you could toast it, you could maybe even whack it in the microwave for a few seconds and freshen it up.
24:34
That's not unfit.
24:36
I think if you have left your loaf in your bread bin for a few more days and it becomes mouldy, then I think pretty clearly you've crossed over the point at which that food is unfit for human consumption. So even a mouldy loaf of bread may not be injurious.
25:03
It may not harm you. You could probably eat a reasonable amount of it and not suffer any ill effects.
25:09
But the important point to make is, even so, it's unsafe for the purpose of Article 14, simply because it's become unfit.
25:23
Now, what I really mean by that, I think as a matter of language, you can, I think, quite easily equate unsafe with injurious.
25:35
I think it's less easy as a matter of language to equate unsafe with unfit.
25:42
And the way in which this provision operates, it's what's known to lawyers as a classic deeming provision.
25:51
So you can see here that the language of the article says food shall be deemed to be unsafe. Now, that's quite an important legal concept.
26:01
It's, I have to say, it's a trap fully unwary.
26:05
So legislation often uses deeming to extend the meaning of words, that extends the natural meaning of words to have them cover things which you wouldn't expect.
26:20
So legislation can do that in whatever way it chooses to.
26:24
You can define cat as a meaning dog for the purpose of legislation. And that's a perfectly legitimate device for the law to use.
26:42
And here we have the meaning of unsafe, extended, if you like, to include unfitness.
26:49
And that is quite an important point. And we'll be coming back to that a little bit later in today's presentation.
26:58
So, what Article 14 also tells us, it does give us a bit more information about what injurious means, and you can see here from what I've shared on the screen that it covers not only probable short-term and long-term effects on the health of the person consuming the food, But it also talks about injury to subsequent generations, which again extends the reach of the food safety requirement quite significantly.
27:39
That reference to subsequent generations can only be a reference to genetic damage to a person, which clearly could be a very long burn.
27:49
So the liability could pop up at some future point and would still be caught by Article 14, which I think is significant.
28:02
And in a similar way there, we've got a reference to cumulative toxic effects, which again, would be a longer term, gradual breaching of this Article 14 requirement.
28:16
So, so be aware it's not just the kind of a moment in time of safe or not safe.
28:23
This can become a food can become safe over unsafe over time or it could its effects can become manifest over time.
28:32
The reference here to a particular health sensitivities of a specific category of consumer.
28:40
Again, that really captures the situation where you put your food product on the general market.
28:50
It recognizes that there can be, regardless of the fact that it's safe for the majority of people, there may be categories of consumer for whom that food is not safe.
29:01
So classically here, people with an allergy or an intolerance, that food will not be safe.
29:06
will not meet Article 14 for a category of people.
29:10
And that is where, obviously, we move into conditions of use and labelling.
29:17
That's not a subject that we're going to tackle today, but be aware that the notion of safety is, it can be a relative notion in these terms, and conditions of use are important to the question of whether something is safe.
29:34
So the best example I can give you here again is actually an English case which goes back to 1983.
29:43
It predates general food law but is certainly applicable to the notions and approach that general food law takes.
29:54
And in Crown against Archer what happened was a food business had a batch of dates, and those dates were, they had some, I think, some insect infestation in them, and they were certainly not fit to be eaten directly.
30:18
But this food business, having been challenged as to their safety, made clear that that was not the intended use to which these dates were going to be put.
30:29
The dates were going to be processed into brown sauce.
30:35
And that notion or that the action of processing was going to both clean the dates and also subject them to high temperatures and quite extreme processing into a brown sauce.
30:52
and those actions would would clearly result in a food which was perfectly safe for consumption.
31:01
So it's important I think then to be aware that safety is a relative concept and intended use can be important.
31:15
Okay so who is responsible for these varied obligations and quite um, uh, onerous obligations.
31:24
Well, Article 17 makes clear that, um, the food business operator at any stage of production, processing and distribution within the businesses under their control have to ensure that those requirements are satisfied.
31:40
And, um, importantly also, I think that is to note the last, the last element of that, um, of that paragraph, which is that you must verify that those requirements are met.
31:55
It's not enough to, regardless of the size of your business, whether you're an SME or a large PLC, you have an obligation under general food law to trust your food for safety.
32:12
Now, that can vary according to what it is you're producing, what it is you're selling.
32:18
and also there's much more legislation around responsibility for testing, but this basic provision makes clear that you can't simply leave it to others to test, you can't leave it to your local authority to do any sampling or testing, you must do that also.
32:38
Also, that I think an important point here is the obligation, the responsibilities under article 17 are co-extensive with your period of control.
32:53
So if you are a manufacturer, once the food has rolled off your production line, you've wrapped it, palletized it, sent it off through a logistics firm to a supermarket.
33:09
As soon as that food is outside of your control, so that might be at the point it's loaded up by the carrier, it might be at the point that it's received by the supermarket.
33:21
Once it's outside of your control, effectively Article 17 means that your responsibility at that point seizes and the next inline in the supply chain becomes responsible for compliance with food safety provisions in the general food law.
33:47
That's not to say, and I think the important point here is that what we're talking about with responsibility is only about regulatory responsibility.
33:57
So it's about whether you, at any point in time, are liable to be prosecuted for a breach of food law.
34:06
and that responsibility is while the food is under your control.
34:11
We're not talking here about contractual or commercial liabilities.
34:17
As a business, you may have given warranties to those that you supply food to.
34:23
You may be contractually obliged, for instance, to indemnify a supermarket for any loss they suffer as a result of, you know, breaches of standards or any contractual breaches. Article 17 isn't about that.
34:40
It's about regulatory responsibility and your liability to be prosecuted for a breach of regulation. So be aware of that.
34:50
It's important to be aware of the It's not possible, actually, as a matter of law, to contract out of Article 17.
34:59
There's nothing in general food law which allows any business to say, well, you know, in these circumstances, we don't regard ourselves as bound by Article 17.
35:08
It applies as a matter of law. So you can build up your your commercial arrangements around that, but be aware that Article 17 will always bite you.
35:20
I think we've got another question, poll question here, Luke, if you could do the honours for me.
35:26
Of course. The question should be coming up on your screens now.
35:31
So this question is, what type of food business are you? So if you can please select one.
35:37
Are you a producer, so a grower or farmer, processor, distributor, or are you in more than one area?
35:45
So it will you a nice little 10, 15 seconds or so to put your answers in. See quite a range at the moment.
35:58
And another few seconds.
36:01
Also a reminder as well, if anyone's got any questions, please do put those into the questions box.
36:05
We're going to be going through them at the end of the webinar. And cool, we'll shut it down there. Thanks, Luke. Okay. Okay, that's great.
36:23
Right, okay, traceability, an important aspect of general food law that's dealt with by Article 18, and it can be stated quite simply.
36:37
As a food business operator, you have to know and be able to demonstrate the identity of any person, so any business or any person from whom you have acquired a food or a food ingredient.
36:52
And at the other end of your activities, you have to be able to show and identify to whom you have supplied your product.
37:02
This is known as one step forward, one step back.
37:08
It doesn't actually apply if you are at the very end of the supply chain.
37:13
So if you are selling a food to a consumer, you do not need to know the identity of the consumer to whom you have sold that food.
37:22
So this is about business to business, B2B, traceability.
37:27
It's not about B2C.
37:30
So I think that certainly the importance of being able to trace out the whole supply chain in the event of a food safety incident was seen as being very important by the EU legislators.
37:50
And the recycles to general food law, which is kind of a uniquely European drafting device.
37:59
They include an explanation really for the basis of a piece of legislation and its purpose and the relative important bits of it all set out in what lawyers call recycles at the beginning of an EU measure.
38:18
And certainly the recycles to 178 were quite focused on the need to be able to map out in full supply chains for the purpose of managing food safety incidents.
38:31
There was always a danger, I think, that the EU might have legislated to the effect that businesses had to be able to know the entire supply chain, which would have been quite an onerous obligation.
38:45
That's not what happened.
38:47
The compromise was that you had to be able to go one step forward, one step back, which I think is much more manageable.
38:55
The reality is that if you are involved in an incident and we're going to come on to speak briefly about them, as long as you can, on demand, tell your local authority or the food standards agency from whom and to whom you have supplied food or received food, that will then result in the FSA usually devoting quite a bit of resource through building the full picture of the supply chain themselves.
39:31
And as long as you cooperate with that process and do bit, give them your bit of information, that will be fine and the FSA will be happily beavering away and producing a full supply chain map.
39:46
So still an important obligation but perhaps not quite as onerous as it might have been. So that brings us on nicely to withdrawals and recalls.
39:59
Now knowing that knowing that there are or this was this session really was aimed at those new to the industry I I make no apology for dealing with a very basic point here at the outset which is the difference between withdrawal and recall.
40:20
So when we about withdrawal, we are talking about a situation where a food stuff is still within the food supply chain. It's still in the business-to-business part of the food supply chain.
40:42
So that might be, for instance, you're a manufacturer of food, you've manufactured, you have wrapped, palletized and sent off to a supermarket, your food.
40:55
You then discover that your metal detector at the end of your production line has not been working properly.
41:05
There is a question mark about the safety of food that is now sitting with your supermarket customer.
41:12
You would immediately under this article, you would immediately need to contact your supermarket customer and indicate that that food must be withdrawn and not sold through to customers.
41:25
So that's a withdrawal.
41:26
That's where it's still within the control of food businesses in the supply chain.
41:37
Recall, on the other hand, is where that food has been sold through.
41:42
So it's left the endpoint of the supply chain.
41:46
It's been sold by a supermarket or a corner shop or any other seller, the product may be sitting in a customer's fridge, maybe in the freezer.
41:57
In those cases, what you are doing is recalling the unsafe food and that will, as I think we've all seen as consumers, point of sale notices, which generally try to identify the food, the batch number and best before dates and explain that that's being recalled depending on the type of food, whether it's short shelf life or long shelf life, the consumer may be advised to simply destroy the food or return it for a full refund.
42:34
And again, the Food Standards Agency here is very helpful in supporting the communications efforts of food businesses in bringing about recalls.
42:47
They will generally help publicise the recall and they have their own subscription arrangements for their website which basically help you. So they will very much work in partnership with you to help control these incidents.
43:05
I think the other basic point I want to make about withdrawal and recall, and it's from the the first bullet, well actually the second bullet point on this slide, which is the need to immediately inform the competent authorities.
43:23
So by competent authorities we're talking normally there about your local authority, that's the local authority where your food business is geographically situated, where your manufacturing plant is situated.
43:38
It will that local authority that you will have to inform and the notion of immediacy is important here.
43:47
There have been a number of incidents I think where because of the kind of governance arrangements which are put in place by bigger businesses to consider risk and control and notification of insurers etc.
44:02
there can be quite a long time between beginning that process of incident management and actually informing the local authority.
44:12
And that does put a business at risk.
44:16
So to give you a real example of that, back in 2007, Cadbury's had a salmonella outbreak plan, which involved the leaking pipe, I think, was leaking into chocolate crumb, which was used in a lot of Cadbury's products.
44:36
It involved a withdrawal of something in the region of a million chocolate bars.
44:43
Cadbury's were fined a million pounds for that breach of food safety requirements and part of the offences, I think there were three offences charged, one of which was the failure of Cadbury to notify local authorities in a timely way of the discovery of that incident.
45:09
So it's important that your food safety, food incident protocols have that early notification of the authorities.
45:19
And in my experience, it is helpful to have the authorities involved at an stage because they can certainly help to mitigate the situation, they can help to control it.
45:33
And more often than not, that's a useful extra pair of hands, I think, for any business facing the unpleasant circumstances of a food incident.
45:44
Again, Luke, I think we have a question here for you to click on screen.
45:52
Yeah, so the final poll of the day is have you ever had to withdraw or recall a product?
45:59
But yeah, either yes, no, or if you're not sure.
46:05
And we'll give you about 15 seconds or so as well to submit your answers for this one.
46:09
It's very split at the moment.
46:16
And we'll be going through the poll results as well at the end of the webinar.
46:21
So I think we'll give you another few seconds And we'll close it down now.
46:30
Thanks, Luke.
46:31
That's fabulous.
46:38
So, we're rapidly running through our hour, so I will try to speed up slightly.
46:44
We are going to look at now one of the consequences of not meeting the food safety requirements or the other obligations contained in general food law that we've just been looking at.
47:00
There's a range of powers open to government bodies if they suspect a breach of general food law.
47:07
We're certainly not going to be covering all of those powers, but an important one, I think a basic one, to introduce new starters to the food industry would be section 9 of the Safety Act 1990, which basically is quite significant power.
47:31
So you can see there that if we're talking about an authorised officer, that's normally an environmental health officer who will do a periodic review of your premises.
47:42
It can also be a trading standards officer who looking at labelling, but in either event they have power if they suspect that the food is not safe, it doesn't meet the food safety requirements, to basically have that food set aside and not be sold.
48:03
Also if they suspect that there may be a risk that you will simply ignore that that ordinance not to sell, they can actually seize the food and take it away from your premises.
48:19
Now both of these things are obviously quite significant interferences with your property rights as a business. So this is quite a powerful provision.
48:32
It is because its fairly significant nature, it is subject to the supervision of the magistrate's court.
48:43
So essentially, if an environmental law officer does this, they have to refer the matter to the magistrate's court. That has to be done as soon as practicable.
48:55
So if it's a short shelf life food, perhaps a dairy product or something like that, has to be done very quickly.
49:02
If it's slightly more ambient, then they have a kind of an extended envelope of up to 21 days to refer the matter to the magistrates court.
49:15
Now, what happens at court is you as the affected food business can come along to court, you can bring witnesses, you can say why you think this power should not have been exercised, i.e. why the food is safe.
49:31
Now, that in a way is slightly easier said than done and the reason for that is we talked when we were talking about food safety about this notion of deeming when something is deemed to be unsafe and the deeming and the strange nature if you like of deeming was something which was examined quite closely in this case of FSA against Brent Justices.
50:01
So what happened in this case?
50:03
It was actually a box of four quarters, I think, 32 boxes of beef.
50:09
So it's quite a valuable amount of food which had been detained under Section 9.
50:17
And anyway, the court heard the application as it should.
50:21
The district judge examined the facts and the circumstances.
50:25
and decided that because the local authority had not brought forward any evidence that the beef was diseased or unfit for consumption in any way, she decided that the food should be released.
50:40
It wasn't unsafe, it should just be released and this order should be discharged, the Section 9 order should be discharged.
50:48
Now that caused the Food Standards agency a great deal of anxiety because that was not the way in which section 9 was intended to work.
50:58
The only thing that was wrong with these beef four quarters was that they had not been labelled correctly.
51:05
But the way in which the deeming provision works in this context is that a simple technical failure like being mislabelled engages the deeming provision and it means that food is classed as being unsafe. There's no ifs, ands, or buts.
51:23
There's no need for a factual inquiry. It is just unsafe.
51:27
And what the district judge in these circumstances should have done, as soon as there was adequate evidence to show mislabelling, the discretion effectively evaporated.
51:39
She had no choice at that point but to condemn the food.
51:43
And this case was taken on appeal to the Court who made that absolutely clear that in these circumstances, a district judge does not have discretion. He or she must simply condemn.
51:58
So an important case there, an important illustration of the power of deeming provisions in legislation.
52:06
So food law, if you breach it, if you breach the food safety requirement, that constitutes a criminal offence and the way in which that reaches the criminal courts is not through general food law, it's through other legislation.
52:26
In England it's the Food Safety and Hygiene Regulations 2013.
52:30
There are comparable enactments elsewhere in the UK but this is the English provision.
52:36
The way it does that is to say that at Regulation 19, anyone who contravenes any of the specified EU provisions commits an offence.
52:50
Schedule 2 sets out a long list of those specified EU provisions and they are inclusive of the very many articles that we have just examined this morning in regulation 178.
53:07
So breach of those provisions becomes an offence.
53:13
Sentences here for someone who is in the magistrate, so that's where there's a fairly minor breach, maybe a small corner shop with a few tins that aren't correctly labeled.
53:25
They could be in the magistrates, it's quite minor.
53:28
They can be subject to a fine.
53:32
It says not exceeding the statutory maximum, that's actually gone now.
53:36
The magistrates have the power to award an unlimited fine.
53:42
If it's a slightly more serious offence, perhaps like the Cadbury's offence, the large Salmonella outbreak, you could find yourself in the Crown Court in those circumstances, which is a more senior criminal court.
53:56
That includes the ability to, if you're an individual of course, send you to prison for up to two years, so very significant, as well as to an unlimited fine.
54:10
There is a defence available for food safety offences.
54:15
It is known as the due diligence defence And essentially what it does, it requires you to demonstrate that you have a comprehensive system for avoiding breaches of food law and that you possibly apply that system.
54:36
I've rather inadvisably had a picture of a tick box sheet here on the slide.
54:42
it's really not the best indication of what's required.
54:46
It is certainly more than a tick box exercise.
54:49
You can see here from one of the cases that I've mentioned, Tesco against City of London Corporation, the court said that your due diligence defence, i.e.
54:59
that you've exercised all due diligence to avoid commission of food offences, is not enough that you've just got a paper scheme.
55:09
You have to show that your scheme is real, it's not a desk-based thing sitting away on a shelf.
55:18
It is something that you apply actively, you test, and you monitor and audit.
55:25
Really important.
55:28
One of the other requirements here is that you must not know that your action or your act or omission constitutes an offence.
55:35
That's another element of the due diligence defense.
55:40
The reason why I think this defense is available in these circumstances is because food law offenses are what's known as strict liability, which means that you can be liable for an offense even if you have no intention to commit it.
55:57
And that's kind of a reversal of the normal criminal law position, where you have to show that someone intended to commit an offence to be convicted.
56:08
This really, this due diligence defense mitigates some of that harshness.
56:14
On the sentencing, very quickly, there are sentencing guidelines which cover what a court will generally look to do on sentencing if you are convicted.
56:26
For organizations, that can be an unlimited fine.
56:29
It's linked to turnover, so the idea is that the court must apply a fine which has a substantial economic impact on the offender.
56:40
It will look at the financial realities of a group company, so if you're a smallish company but part of a bigger group and have, you know, parent companies who can contribute towards fines, the fine will will almost undoubtedly be bigger and it will be designed to have a real impact on you.
57:05
For individuals, as we say, it can be, in certain instances, a term of imprisonment of up to two years.
57:12
You can also, as an individual, find yourself subject to community service orders and similar sentences.
57:19
It's also possible for the court to prohibit you from acting in any capacity in a food business and that's just happened with a case in the last few days where animal byproducts have been diverted into the human food chain that I think the person was at least one of those individuals has been banned from ever being involved in a food business again.
57:43
The amounts, these amounts can be quite significant.
57:48
I haven't put them on the slide, but to give you an example, in July this year, ASDA was fined £640 ,000 for selling out-of-date food products, but perhaps the most notable example in recent times has been back in April of 2021, Tesco was fined some £7.5 million for selling out-of-date products beyond their use by date.
58:20
So very significant amounts of money are at stake.
58:24
But I think the important thing here is to remember the human cost of breaches.
58:30
With 180 people a year dying from food poisoning or food-related diseases, that's 180 bereaved families.
58:38
And that's an incalculable cost, I think, and one that we should all be working to try to reduce.
58:47
So thank you for listening.
58:50
I'm going to leave you with a picture here of perhaps what is the most expensive grape in history.
58:56
This is part of the food products which Tesco was fined 7.5 million pounds for. A nice grape there in all its furry glory.
59:07
A very expensive grape from the point of view of the food business involved. Thank you very much.
59:13
I'm slightly over running but thank you for listening, it's been great to be able to talk to you.
59:18
We shall try and do a few questions if we have time.
59:20
Thanks, Luke.
59:22
Thanks very much, Chris, and thank you for all your effort that's gone in to presenting this webinar.
59:25
I'm sure everyone's found it very useful.
59:28
We've got one question that's come in so far, so if anyone's got any others, please do put it in quickly before we run out of time.
59:34
But the question is, are there any difference between food laws in England, Scotland, and Wales, given that food safety is devolved?
59:42
The answer is yes, there are. The general food law that we've been looking at this morning, thankfully, applies in the same way pretty much in all of the four nations.
59:53
So what we've covered this morning, you will find, applies throughout the UK. There are differences in the detail of the law and probably the subject for another day's seminar, I would have said.
1:00:08
Cool, thanks very much Chris. We haven't got any other questions so we can wrap up there.
1:00:12
Once again thank you Chris and thanks everyone for coming.
1:00:15
We've been recording so if anybody would like to re-watch the webinar or have a look at the slides we'll send that over to you in the next few working days and we'll also be sending you Chris's contact details and it is also on there on the screen so if you have any follow-up questions please feel free to get in touch with Chris.
1:00:30
But yeah, unless you have anything else to say Chris we can wrap up there.
1:00:33
Oh, that's great. Thank you. I'm really pleased to be able to speak to you all.
1:00:37
Thank you for joining. Really grateful to the FDF for hosting. Thanks, Luke.
1:00:41
Thanks very much, everyone. Bye.
