Regulation and enforcement of food safety in the UK

Reaulation and enfvorcement of food safety in the UK

David Jukes

The protection of the consumer from food safety hazards is a concern of governments, which introduce appropriate legislation to establish minimum standards. However, legislation requires an effective enforcement system to ensure compliance. The system within the UK is considered as an example of the way in which consumer concerns for safety and international attempts to develop trade are straining a traditional enforcement system developed over many years. David Jukes is a lecturer in the Department of Food Science and Technology at the University of Reading, Whiteknights, Reading, RG6 2AP, UK.

0306-9192/93/020131-12

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There is a distinct difference between knowing that a food safety hazard exists and ensuring that a consumer of food is protected from that hazard. Many hazards are known - ranging from potential food poisoning when there are poor food handling practices to long-term hazards from the consumption of minute quantities of toxic chemicals over extended periods. Consumers are increasingly aware that these hazards exist although their perception of them may not always be an accurate assessment of the actual hazard. They therefore demand that all necessary measures are taken to prevent their consumption of unsafe food. Responsible food companies, often employing trained food scientists and technologists, spend considerable time and effort to try to ensure that their food is manufactured and supplied under conditions which provide a high degree of protection. However, human nature is such that in many cases, either through ignorance or through a desire to obtain a competitive edge over more responsible companies, some are prepared to ignore necessary safeguards. It is to counter these individuals and companies that a modern food law system exists, supported by an efficient and suitably trained enforcement service. Legislation is a clear statement by the government or parliament of a country that there exists a boundary between what is acceptable and what is unacceptable. A national standard is defined and anyone operating a food business within the country has to operate at or above that minimum. It is then open to manufacturers and retailers to establish marketing policies which ensure that the minimum is met or exceeded. As the industry has become increasingly developed and as manufacturing has moved away from the local market, the controls which are required to provide the minimum protection have become increasingly complex. Today in the UK there are detailed technical controls on many different aspects of food processing (eg hygiene standards, temperature controls, food irradiation), food ingredients (eg additives, compositional controls) and food contaminants (eg heavy metals, pesticides, hormones, packaging substances). These food safety controls are complex, but a manufacturer also has to take into account other legislation which relates to consumer information and the prevention of fraud (eg food

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labelling, package weights). It is perhaps not surprising that, on occasions, even some of the most reputable companies find themselves on the wrong side of the law. A complex regulation which requires techical expertise to implement also requires technical expertise to enforce. As industry has become more aware of the potential of technology to produce alternatives to traditional products, enforcement officers have had to acquire and develop skills appropriate to detect illegal products. Enforcement has had to move from the traditional retail sampling to a more thorough assessment of the whole food supply chain. This change may mean alterations to many of the proven systems which have been established over the years, but, in order to remain effective, enforcement must be flexible and adaptable. A static system is unlikely to provide the consumer with protection in a rapidly changing world. Our understanding of the changing world must also include the economic and political changes within which a country operates. Within Western Europe the last few years have been dominated by attempts to create a European Community internal market. In Eastern Europe the moves to a market economy are causing drastic changes in the system of control. Internationally, harmonization is an agreed objective which should enable more extensive trade between countries. What had previously been regarded as a minimum national standard has to be viewed in the context of the whole international community: one country’s attempt to provide a minimum acceptable national standard may be another country’s barrier to trade. The UK provides an excellent example of how a regulatory system has attempted to come to terms with modern developments and how a trusted enforcement system is trying to evolve sufficiently rapidly to maintain a safe food supply. This article will describe the various aspects of the present regulation and enforcement system within the UK and will look at the attempts to keep pace with both the scientific and technical developments and the international dimension involving in particular, with the creation of the EC’s agreements associated, internal market.

UK regulation

‘See, for example, E.J.T. Collins, ‘Food adulteration and food safety in Britain in the 19th and early 20th centuries’, Food Policy, this issue, pp95-109. ‘Public Health (Regulations as to Food) Act 1907, 7 E 7, c 32. 3Public Health (Preservatives, &c, in Food) Regulations, Statutory Rules and Orders, HMSO, London, 1925.

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Early food law in the UK was designed to protect honest traders from less reputable competitors and to counter the most obvious abuses. The process by which laws were established is recorded elsewhere.’ It should be noted, however, that many early food safety controls were introduced under public health legislation rather than the food law. Legislation in the UK is generally split into two. The primary legislation (the Acts of Parliament) establish the general principles of control, the major offences and the administrative aspects of enforcement. The Acts also contain powers for ministers to issue regulations by which more detailed technical controls can be introduced. Thus in the food safety area the first technical regulations to control the use of additives used the powers provided for in the Public Health (Regulations as to Food) Act of 1907.’ The resulting controls banned the use of certain colours and established an initial positive listing for preservatives.” Only those preservatives which were listed could be used in the foods specified in the Regulations. This distinction between fradulent and health aspects of food law was,

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for the most part, abandoned in 1938 when the Food and Drugs Act of that year was passed.4 This Act contained all the provisions relating to food and provided for more extensive regulatory powers than had previously existed. The actual use of these powers was overtaken by the start of the second world war and the subsequent use of defence powers to establish very detailed restrictions on the manufacture of food. These powers were used for several years after the end of the war since food supplies remained difficult. It was, however, generally felt that some aspects of the controls developed during the war were appropriate for peacetime. The Food and Drugs Act of 1955 for England and Wales (and equivalent Acts for Scotland and Northern Ireland) further extended the powers of government.’ These powers were used extensively to place detailed restrictions on the composition of certain foods, to extend labelling requirements and to implement a comprehensive policy of controlling food additives. A further impetus was given to food standards when the UK became a member of the European Community in 1973 and the country accepted many new controls. Since that time, food law has become increasingly subject to decisions taken by the whole Community.6 Many aspects can now only be changed with agreement being reached by the Community as a whole. The Food Safety Act 1990

4Food and Drugs Act 1938, 1 & 2 Geo VI, c 56. 5Food and Drugs Act 1955, 4 Eliz II, c 16; Food and Druas (Scotland) Act 1956.4 & 5 Eliz II, c 30; Food and Drugs Act (Nerthern Ireland) 1958, c 27. 6D.J. Jukes, ‘Food law harmonization within the European Community’, British Food Journal, Vol 90, No 4, 1988, pp 147-154. ‘Food Act 1984, c 30. ‘Review of Food Legislation, MAFF, London, 1984. ‘For a detailed official account of the govemment’s handling of the issue, see Agricul‘Salmonella in eggs’, ture Committee, House of Commons Papers, 108-L Session 1988-89, HMSO, London, 1989.

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As outlined above, legal changes occur at infrequent intervals. Pressure for change in the UK had been building up during the late 1970s and early 1980s. However, the UK government had other priorities and no significant alterations were made to the legal controls. It should be noted that, in 1984, a consolidation exercise was undertaken which resulted in the passage of the Food Act 1984 through Parliament.’ This measure, applying only to England and Wales, was purely a drafting exercise and incorporated the various amendments which had taken place since 1955; the removal of the controls on drugs by the Medicines Act of 1968 was one such major amendment. Almost immediately after the passing of the Food Act 1984, the government announced a full-scale review of food law. A consultation document was published by the Ministry of Agriculture, Fisheries and Food (MAFF) which allowed for detailed discussion of many areas.’ Responses were received from a wide range of interested organizations and preparatory work was undertaken by ministry officials. However, it was still not apparent when, or even if, a new law would be proposed. Events overtook the UK government. During the late 1980s there was a rise in the number of cases of food poisoning. During 1988, in particular, there was a sharp increase in cases of Salmonella enteritidis. By June there appeared to be a clear connection between eggs and the increase. Discussions between the Department of Health (DoH), MAFF and representatives of the egg industry were initiated. By August some initial precautionary advice was issued. During November and December the issue reached prominence, resulting in much media attention, and thus became a national issue. The handling by government of the specific issue of salmonella and eggs was generally regarded as slow and weak. The situation was complicated by ministerial statements (and a subsequent resignation) which were taken to be contradictory.’

Having

reached

prominence,

other food issues were also given a high

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“CM 732, HMSO, London, 1989. “Food Safety Act 1990, c 16; Food Safety (Northern Ireland) Order 1991, Satutory Instruments 1991, No 762, HMSO, London, 1991. “Food Hygiene (Amendment) Regulations 1991, Statutory Instruments 1991 No 1343, HMSO, London, 1991.

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media profile. Concerns were highlighted that chilled foods may contain listeria. The ability of this organism to grow at refrigeration temperatures was particularly worrying, and with the growth in consumption of prepared chilled meals for reheating in a microwave the potential for listeriosis was apparent. There was also a fatal outbreak of botulism resulting from the consumption of yoghurt containing contaminated hazelnut puree. By the summer of 1989 the government had to be seen to be taking action to ensure food safety. They published a glossy White Paper in July 1989 entitled Food Safety - Protecting the Consumer. I(’ It outlined the arrangements for food safety already in existence, highlighted the steps taken to maintain safety during the 1980s and discussed future proposals for legislation. By the autumn, drafting was complete and a Food Safety Bill was published and introduced into Parliament on 22 November 1989. The passage of this bill was, by many standards, uncontroversial. It was welcomed by many organizations and, despite some attempts to change certain proposed sections, it passed through Parliament with little substantial alteration. Most attention was focused on the government’s stated intention to use the provisions of the new Act to permit (and control) the use of food irradiation. Although no mention is made of food irradiation in the Act, the Opposition attempted unsuccessfully to insert detailed controls which would have severely restricted the process and made it subject to further parliamentary debate. It is unknown at what stage a new Act would have appeared without the food safety scares of 1988 and 1989. The moves towards completing the EC internal market meant that some action would have been needed within one or two years. However, the government was able to use the passage of the Act as a sign that it was concerned to ensure the safety of the UK food supply. The Act incorporates many new provisions and contains significantly increased powers to enable ministers to issue regulations. It extends controls back down the food supply chain and can be used to regulate aspects of food production where the latter has an effect on food. It tightened the controls on unfit and contaminated food. It introduced powers to require registration and licensing of premises. It increased the powers of enforcement officers and provided for Codes of Practice on enforcement (see below) and, as a counterbalance to these increased powers, it provided for a modern defence to be available to offenders the concept of taking reasonable precautions and exercising due diligence were incorporated into the Act. The Act received the Royal Assent in June 1990 and most of its provisions applied from 1 January 1991. The Act applies to England, Wales and Scotland. Separate, but similar, provision has been made for Northern Ireland in the Food Safety (Northern Ireland) Order 1991.” Many new regulations have been issued since the Act, although it must be appreciated that many of them were not a direct result of the new Act and were continuing controls which had previously been established. Other new controls were introduced using powers previously in existence under the 1984 Food Act. Important regulations were those relating to temperature control of food. These regulations, the Food Hygiene (Amendment) Regulations,‘2 which were issued in July 1991, lowered the permitted storage temperatures for certain types of food considered to be high risk. The new Act was used to introduce

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compulsory registration of food premises from the spring of 1992. l3 All food premises must now be registered by their local authority: registration is a right, but it does allow the enforcement officers to clearly assess the numbers of premises needing inspection and the types of food being prepared. Food irradiation has already been mentioned and its use was permitted by regulation as from 1 January 1991 subject to a stringent licensing system. The Regulations allow certain foods (those originally proposed by the European Communities Scientific Committee for Food) to be irradiated up tp a specified maximum dose. I4 Government licences are required; at present only one company has been licensed, and only for spices and herbs. The Act has resulted in enforcement officers having much increased powers, but manufacturers or retailers who have established procedures which are designed to protect the consumer have little to fear. Provided they can establish in a court that they have taken all reasonable precautions and exercised all due diligence, they can be found not guilty. These terms, although not new in UK law, were novel for the food industry. Based on previous cases, guidance was given as to how courts might expect food businesses to act to allow the defence.” Having an established quality system (such as one conforming to British Standard BS5757 or the international equivalent IS0 9000 series) and ensuring that detailed consideration is given to potential hazards in advance by the use of such systems as Hazard Analysis and Critical Control Points (HACCP) can significantly help in any defence. The result has been an increase in the interest in systematic quality procedures by businesses wishing to establish the defence. Many companies have decided to adopt the British Standard whilst others are committing themselves to similar approaches involving techniques such as Total Quality Management. These may not provide any guarantee of a successful defence in the event of a prosecution, but the mere use of the system demonstrates that the company is endeavouring to comply with legal requirements and thus the enforcing authority may decide that a prosecution would not be appropriate or necessary to achieve satisfactory consumer protection. The Europeun

13The Food Premises (Registration) Regulations 1991, Statutory Instruments 1991 No 2825, HMSO. London, 1991. 14The Food (Control of Irradiation) Regulations 1990, Statutory Instruments 1990 No 2490, HMSO, London, 1990; see also D.J. Jukes, ‘Making food irradiation legal past, present and future’, Food Science and Technology Today, Vol5, No 4, 1991, pp 211-217. 15Food Safety Act 7990: Guidelines on the Statutory Defence of Due Diligence, Food and Drink Federation et al, London, 1991,

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dimension

As part of the European Community the UK has since 1973 been involved in helping develop Community controls on food. The whole basis of the Treaty of Rome which established the Community was that of an economic community in which trade is able to take place with the minimum of restriction. The early policy of the Commission of the EC was to develop Directives which harmonized legal provisions across all member states. If differences existed, then a European measure would be adopted to replace the separate national provisions. However, the policy resulted in only very slow agreements. The decision was taken in the mid-1980s to adopt an alternative approach whereby it would be accepted that the general approach of all member states was to have controls which, although they might be different, resulted in adequate protection for the consumer. Under these circumstances it was considered unnecessary to produce harmonized controls but to accept that differences existed; products which were manufactured in one country (according to the laws of that country) could to be sold in another country even if they did not meet the laws of the importing country. This is the concept of mutual

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“Commission of the EC, Communicafion from the Commission to the Council and the European Parliament - Completion of the Internal Market: Community Legislafion on Foodstuffs. COM(851603 final, Luxembourg, 1985. ~ ’ ‘7’Council Directive on the Official Control of Foodstuffs’, Official Journal of the European Communities, No L186, July 1989,

p 23. ‘*Proposal for a Council Directive on the Subject of Additional Measures Concerning the Official Control of Foodsfuffs, Commission of the European Communities, COM(91)526 final, Luxembourg, 1991. lgProposal for a Council Directive on the Hygiene of Foodstuffs, Commission of the European Communities, COM(91)525 final, Luxembourg, 1991.

recognition. For it to work properly, there has to be a guarantee that all member states do have in place legislation which provides for the protection of the health of the consumer and other key criteria. The internal market programme in foodstuffs, as expressed in the Commission’s communication on foodstuffs in 1985,16 clearly described the new policy, and it has largely been followed. Food safety control was obviously one area which remained an important part of EC foodstuffs work. Food safety control legislation in the UK has always been a matter for local rather than central government. Whilst the government, or Parliament, may adopt legislation, it is the local administration which has been given responsibility to enforce the provisions of the law. Local government, organized into local authorities (see below), employs enforcement officers who are thus independent of the central government. With over 600 different local authorities having responsibilities under the Food Safety Act 1990, it is appropriate to ask whether enforcement throughout the country is similar or sufficient. With the approach of the EC internal market, the question could be justifiably asked by other member states. In some aspects of control the UK may be able to point to deficiencies in other countries; in this case the question is being asked by other member states whether the local system of enforcement can guarantee the quality and safety of food coming from the UK. Thus one part of the programme to complete the internal market has been to establish minimum inspection procedures throughout the Community. The Official Control of Foodstuffs Directive was issued in June 1989.17 The Directive established minimum procedures designed to provide effective control throughout the Community over food production, distribution and sale. A major change for the UK was the requirement that control should be applied throughout the food chain: enforcement officers should be given the right of access to food premises and should not have to rely on retail sampling. The Directive has been implemented by a combination of primary measures (parts of the Food Safety Act 1990 incorporate necessary provisions), Regulations (on sampling and qualifications) and enforcement Codes of Practice. It is primarily through the Codes of Practice that the government is ensuring that the UK has fulfilled its obligations under the Directive. The steps necessary to complete the internal market were not all taken by the target date of the end of 1992. Although some rapid agreement has recently been reached on certain areas (notably in the veterinary sector, relating to meat and meat products), many other areas have only adopted the structural framework Directives and detailed technical provisions are still required. Although not obviously a framework Directive, the Official Control Directive is regarded as only a first step in a series relating to control and inspection. In particular, two further Directives are now taking shape and have been published as proposals. One concerns additional measures and includes the establishment of a European Inspectorate able to monitor the work of national inspectorates and to provide reports on their work.‘” A second proposal relates to hygiene standards in food premises and goes a long way to meeting the demands of many people (including the European Parliament) that minimum hygiene standards be set at a European level.”

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Enforcement The local structure Enforcement of food law within the UK has always been a matter for local government. Central government provides the legal authority but then requires local authorities to implement the law. Thus to appreciate the present enforcement system it is necessary to have some understanding of the structure of local government. The matter is complicated by the political nature of local government. The structure is not fixed and has over the years altered to take account of different views of the best system to adopt. These views often take on a political dimension and changes can result from changes in the politics of the government or as a result of conflict between central government, in the hands of one political party, and local government led by an opposing party. The present structure provides for two tiers of local government. At a local level there are district councils (sometimes known as city or borough councils). In the majority of the country these districts are also grouped into larger council areas known as counties (in England and Wales) or regions (in Scotland). Responsibility for the many duties allocated to local government is then split between the two levels. Education, social services and trading standards are usually the responsibility of the larger authorities whilst the districts have housing, leisure and environmental health. In some parts of the country there are unitary authorities with responsibility for all aspects of local government. These are the London boroughs and the metropolitan districts - the main urban conurbations. These councils are considered large enough to take on all duties. The present government is committed to a more flexible approach to local government, and it seems likely that more unitary authorities will be created. Northern Ireland, often subject to rather different legislation, also has only district councils, whilst some duties are taken on by the central authorities. Food law enforcement has to be allocated within this structure. With a unitary authority there is no division; in most of the country, however, there is a need to consider the level at which enforcement takes place. Before explaining the split, it must be remembered that food law comprises two major areas - firstly, food hygiene and safety and, secondly, food labelling and fraud. As these two areas have developed, two different professions have become involved. Work associated with food hygiene has been undertaken by Environmental Health Officers (EHOs) whose training suits them for assessing any health implications associated with, for example, dirty kitchens in a restaurant. They have undertaken this work over many years. However, work associated with weight control and the provision of information to consumers has become the responsibility of Trading Standards Officers (TSOs). Their work has developed from the early controls over weights and measures, and TSOs retain this responsibility. Many are fully qualified weights and measures inspectors. To undertake this duty they have had access to food factories for several years. In the parts of the country where a two-tier system operates, the EHOs and the TSOs are employed at different levels - the EHO at the district and the TSO at the county or regional level. One consequence of this division is that there is also a certain rivalry between the two professions. This is exacerbated by the variations which have developed FOOD POLICY April 1993

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throughout the UK. In the non-metropolitan parts of England and Wales it is usual for the TSOs to have the responsibility for enforcement work concerning food labelling and composition whilst the EHOs carry out hygiene inspections and other related work. In Scotland, however, for several years the EHO has been allocated the full enforcement responsibilities for food work (including labelling). During the passage of the Food Safety Bill through Parliament in 1988 and 19X9 it was one of the minor points of dispute as to whether the regions in Scotland could be allocated any of the responsibility. The Bill only provided for the districts to be food authorities and gave them full enforcement powers. Supporters of the TSOs wanted the division to be left to Regulations and thus to have flexibility. The government refused to consider this option. Where there are unitary authorities, all enforcement work is often allocated to the EHO. This is the case in many London boroughs. Over the years there has been rivalry between the leaders of the two professions. However, this must not detract from the generally excellent work that individual officers do. Working at a local level gives them considerable flexibility to tackle local issues and the broad training given to members of each profession enables them to concentrate all their manpower on one issue if required - whether as a result of a large outbreak of food poisoning or of a serious pollution incident. There is a third category of professional officer employed or used by local authorities. The public analysts and the food examiners provide full scientific support to officers and work closely with them when analytical work is to be undertaken. The public analysts are all qualified in chemical analytical work and in food legislation. A certificate issued by an analyst is accepted by a court as a factual statement of the content of a sample and is often therefore the starting point in a prosecution. Many analysts have also undertaken microbiological work, but this has not been a formal requirement of the qualification. The Food Safety Act introduced the new role of food examiner for people undertaking microbiological examination of food, often for local authorities. Detailed qualifications have still to be introduced although there are regulations which stipulate appropriate qualifications and work experience before someone can claim to be a food examiner.“’ A final category must also be mentioned. Food safety also relates to the safety of animal products for human consumption. The inspection of these has in many European countries been the responsibility of veterinarians. Legislation can make a distinction between products subject to veterinary supervisions and inspection and those subject to other controls. This policy has not been followed in the UK. Environmental Health Officers have often been the officers in charge of ensuring that meat inspection work is undertaken - usually by trained meat inspectors operating under the guidance and supervision of the EHO. European Community developments have, however, caused a partial change in this policy. Veterinary inspection of meat at abattoirs is to become the responsibility of a central meat inspection service employing veterinarians. This change will require new primary legislation before it can be fully implemented. The veterinarians’ responsibility will not extend beyond the abattoir. “The Food Safety (Sampling and Qualifications) Regulations 1990, Statutory Instruments 1990 No 2463, HMSO, London, 1990.

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Enforcement powers Enforcement

officers work within

the limits of their powers

as described

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in the legislation. For food safety, these powers are contained in the Food Safety Act 1990. The Act, which mostly entered into force in January 1991, considerably extended the powers of officers while at the same time providing more modern defences for the food industry. The combination of these two changes has led to significantly increased awareness of the importance of food safety. The major enforcement powers are given in Sections 9-12 of the Act. Section 9 provides powers of inspection of any food intended for human consumption which might be for sale or being prepared for sale. If it appears to the officer that the food would not meet food safety requirements or might cause food poisoning (or any disease communicable to human beings) then powers of seizure are specified. Section 10 provides for the issuing of an improvement notice where an officer believes that a business is failing to comply with processing or hygiene regulations. The issue of such a notice provides a great incentive for the business concerned to implement the specified improvements. Failure to do so would also be an offence. The use of improvement notices is new to UK food law. Previously enforcement officers would have had to prosecute the business, which would have taken significantly longer and would have been more costly. It has been recorded that in the UK as a whole in 1991, this new power was used on no less than 27 900 occasions.” Section 11 enables a court to prohibit the use of buildings or equipment if there has been a successful prosecution for hygiene offences and there continues to be a risk to health. Additional powers have also been given to prevent a person ‘participating in the management of any food business’ where the person has been convicted of hygiene offences and it is believed that such a prohibition would be proper. Section 12 provides powers for enforcement officers to prevent a business operating if, in their view, there is an ‘imminent risk of injury to health’. The officer can serve an Emergency Prohibition Notice which has immediate effect, but such a notice must then be converted by a court into an Emergency Prohibition Order. These powers are very strong and, to avoid excessive use, there are appropriate provisions for compensation if a court refuses to convert the Notice into an Order or if, in their view, the officers have acted incorrectly. In 1991, the first year in which the power was available to officers, 300 Notices/Orders were issued in the UK as a whole. Recent criticisms and developments

“Official Statistics

Control of Foodstuffs: Inspection - UK Return 7997, MAFF, Lon-

don, 1992.

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The major potential problem with enforcement in the UK is the great number of employing authorities and the lack of central control over officers. For some people, this is a great benefit since each officer can work within the priorities established at a local level. However, this benefit has tended to be overshadowed by the problems being encountered by national food companies distributing products throughout the country. If different officers are following different policies, it may become very difficult to satisfy all the different enforcement officers who have dealings with the company. Take the example of a food label. One authority might say it is an acceptable label while another might say that changes are needed. The manufacturer wishes to avoid a prosecution and may decide to change the label. However, yet another enforcement officer from another council might then object. The

Regulation and enforcement in the UK

“P. Brooke, ‘LACOTS and the coordination of food enforcement’, British FoodJournal, Vol93, No 8, 1991, pp 8-l 1. ?Audit Commission, Safer Food: Local Authorities and the Food Safety Act 7990, Audit Commission Occasional Papers No 15, HMSO, London, 1990; and Audit Commission, Towards a Healthier Environment: Managing Environmental Health Services, Audit Commission Local Government Report No 5, HMSO, London, 1991. 24MAFF/DoH, Food Safety Act 7990 Code of Practice No 8: food Standards Inspections, HMSO, London, 1991. 25MAFF/DoH, Food Safety Act 1990 Code of Practice No 9: Food Hygiene Inspections, HMSO, London, 1991.

coordination and consistency of enforcement practice is therefore a problem with a locally employed enforcement service. This problem has been increasingly recognized by the local authorities. Within the framework of trading standards law (ie food labelling and composition), the employing organizations established a central body to try to coordinate the work being undertaken at a local level. This organization, known as the Local Authorities Coordinating Body on Trading Standards (LACOTS), was established in 1978 to provide a forum for the resolution of differences being encountered by companies around the country and to provide a central point for the consideration of problems arising in other countries (particularly other Community countries). One of the major policies which has been developed by LACOTS is the principle of the ‘home authority’. A company normally has a single local authority from which it seeks advice and which assists when problems are found in another authority’s area. The home authority is thus aware of advice which has been given and can inform another authority on the history of the company - whether there have been other consumer complaints, for example. Prosecutions can still be brought by any authority, but a company is less likely to face contradictory advice or several prosecutions for one problem. The need for a similar organization covering food hygiene was also suggested. The rivalry, already described, between the TSOs and the EHOs did not help in the development of the concept. However, the local authority organizations which had established LACOTS accepted in 1991 that its area of work should be extended to cover all areas of food. The organization has been renamed the Local Authorities Coordinating Body on Food and Trading Standards (the acronym remains as LACOTS). This change has meant that all local authorities are now involved in the work of LACOTS.22 The extension of the work of LACOTS means that there may be more coordination of food safety enforcement work. Another problem was the question of consistency. The procedures adopted around the country have in the past varied considerably. Some authorities have but others have not. The Audit operated very good procedures, Commission, an independent body established to review the workings of local government, conducted a study of the work of environmental health departments. They found a wide variety of performance and made many recommendations.” This study, combined with the development of greater enforcement powers under the Food Safety Act, convinced the government that action was needed to ensure that the less responsible authorities were compelled to operate to certain minimum standards. Therefore, within the Food Safety Act, power was given to ministers to issue Codes of Practice specifying enforcement practices. The government established an Implementation Advisory Committee to develop these codes. The Committee brought together civil servants, environmental health officers, trading standards officers and public analysts. Currently 13 Codes have been published, and they contain both matter which is considered as the Code of Practice which food authorities ‘must have regard to’ and material which is of a more informative nature. Two very important Codes are those relating to Food Standards (Code No Inspections (Code No 8)24 and Food Hygiene Inspections 9).*’ These two documents lay down minimum levels of inspection for

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food premises. Both suggest schemes which take into account the nature of the business and the potential hazards and risk factors. Food authorities are free to use a different scheme, but it must result in at least the same minimum inspection frequencies. The Codes also make many references to the need to cooperate and, if appropriate, to combine visits being undertaken by the EHO and the TSO. The development of a team approach to food law enforcement is encouraged.

The future

26Local Government

Act 1992, c 19.

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It is not known how long the present enforcement system will last. It was mentioned earlier that the structure of local government is subject to many pressures, many of a political nature. The possibility now exists within local government law for a more flexible approach to the structure, and changes may result.2” It is probable that this will result in more unitary authorities being created. Within these authorities a decision will have to be taken about the allocation of responsibility for food law enforcement. Experience in other unitary authorities indicates that this is likely to result in the EHO becoming involved in areas which are currently undertaken by the trading standards officer. This, however, is not the stated objective of the government or of any local authority body. It had been an objective of the Institution of Environmental Health Officers (IEHO) although, to try and help relations with the professional body representing trading standards officers (the Institute of Trading Standards Administration, ITSA), it was quietly dropped. The IEHO may have realized that it was only a matter of time before the pressures for a single trained officer to have food responsibility would result in their objective being met. It would be impossible for the TSO to undertake hygiene work and, with the EHOs in some parts of the country already having responsibility for labelling and compositional matters, the EHO is the obvious professional for this work. The role of a food inspector has become increasingly complex. One criticism which is still levelled at the enforcement system is that the officers responsible for enforcement are not food specialists. The EHO (and the TSO) are given a general training which covers all parts of the present work of the profession. Science, technology and food law itself have become increasingly complex. It has to be asked whether someone with a general training can adequately inspect a modern food factory to ensure compliance with the law. Should the enforcement system be composed entirely of people with a professional training in food science or technology who would then only undertake food law enforcement work? The trend is in this direction. In general, there are two types of local authorities - those who have a management structure which favours the generalist and those which favour the specialist. In generalist authorities officers are often given a small geographical area and have responsibility for all aspects within that area, whilst the specialist authorities have EHOs and TSOs acting as food law enforcement experts who cover the entire council area but only undertake food law work. The move is towards the latter and the development of larger unitary authorities does tend to allow for the employment of such specialists. Ultimately it seems likely that the moves will lead towards the

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Re~uiff~io~ and enfo~ce~e~~i in the iJK

establishment of a professional food law enforcement officer. The speed with which this occurs will depend upon many factors. If the present system is seen to be working, there will be little movement. With each change in the structure of local government and with any pressure on the system (caused by unpredictable factors such as consumer pressure or apparent failures in food safety) there will be a movement towards a single inspection service. Finally, mention must be made of developments within industry itself. The food industry has had to come to terms with the new legal framework of the Food Safety Act. This has established, as the prime defence, the concept of taking all reasonable precautions and exercising all due diligence. This concept was previously used in other legislation and, based on legal experience, some guidance was available as to the way in which courts would allow the use of the defence. Since the Act has been operating, the courts have been very conservative in their approach to the defence. It is apparent that the company wishing to establish the defence must be able to demonstrate it to the satisfaction of the court. This requires full documentation. Precautions need to be taken prior to something happening - proce~~ures must be proactive and not reactive. Hazards have to be assessed and systems developed to minimize the risks. Industry has to have in place a comprehensive quality system. The responsible parts of the food industry, as described earlier, are therefore increasingly moving towards adopting systems which are recognized as providing the necessary protection. The use of the British Standard on Quality Systems (BSS750) is one route being used. The HACCP approach is also being used, and other techniques such as Total Quality Management are receiving much attention. Although the legal demands can be met by making use of these techniques, their use also brings benefits to the customer. A retailer buying from a manufacturer can be more confident in the manufacturer who is using modern systems for monitoring and controlling quality. This confidence will be increasingly important when the EC internal market comes into full operation. If the internal market results in an upsurge of food safety problems, consumers and retailers are likely to restrict their purchases to products in which they have trust. Having a recognized quality system will help a manufacturer in this situation. That consumers in the UK expect the full protection of the law is apparent from developments in the 1980s. The Food Safety Act 1990 has provided them with a modern legislative power which can be used to force food businesses to operate safely. It is being used to ensure that businesses which would otherwise be prepared to take risks with consumers’ health are forced to improve or go out of business.

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FOOD POLICY April 1993