03 Nov 2021 When Does a Food Safety & Hygiene Error Become a Crime?
If you work in the food or hospitality industry, you’ll already know that it’s one of the most heavily regulated industries in the country.
As a food business organisation (FBO) you’re probably aware of the many regulations that affect how you operate and run your business and the food you sell, but are you aware of the potential consequences of breaching these regulations?
In this blog, we hope to explore how an FBO can avoid turning an honest mistake into a crime that has serious punitive consequences.
Who regulates the Food Industry?
Most of the legislation pertaining to FBOs comes from The Food Safety Act 1990 and related legislation and regulations, like the Food Hygiene Regulations 2013. There are multiple bodies that are responsible for providing information, support and enforcement of the legislation and regulations.
In local government, the Environmental Health or Trading Standards departments within councils can take investigative and enforcement action. In England and Wales, the Food Standards Agency is responsible for enforcing food safety legislation and works with local authorities to undertake investigations and pursue enforcement action.
Whether it’s up to the local council, or the FSA will step in depends on the severity and scope of the contravention.
What is an offense under The Food Safety Act 1990?
The Act created three key offenses, which are:
Offense 1 – Rendering food injurious to health, meaning adding or taking away an ingredient or article to food that results in illness or inury to a person. By omiting a preservative, for example, or adding an ingredient that is not fit for human consumption.
Offense 2 – Selling food that is not of the nature or quality that is demanded, meaning selling food that fails to meet quality standards. For example, selling baby formula where the composition of the milk fails to meet statutory requirements or selling products that are spoiled.
Offense 3 – Falsely or misleadingly describing or presenting food, meaning representing food to be of higher quality or containing certain ingredients or properties that it actually doesn’t. The most high profile example would be the horsemeat scandal of 2013.
What’s the distinction between a Food Safety error and criminal offense?
The distinction between a mistake and a crime lies in whether a FBO can show evidence of due diligence as a defence, and the severity of the offense rests on two variables – the level of culpability and the level of harm caused.
Culpability ranges from:
Low – Where the offender made significant efforts to avoid the failure, even when those efforts were ultimately inadequate and where the incident is isolated
Medium – An offense that takes place due to act or omission which wouldn’t have happened if someone had been exercising reasonable care
High – Willfully ignoring or refusing to acknowledge a risk of committing the offense, but taking the risk anyway
Very High – Intentional breach or total disregard of the law
Harm is arranged within three categories:
Category 3 – Low risk of an adverse effect
Category 2 – Tangible adverse effect on individuals (not amounting to category 1), or a medium risk of an adverse effect or low risk of a serious adverse effect. This includes psychological harm of a consumer being misled regarding a food’s compliance with their religious or personal beliefs
Category 1 – Serious actual adverse effects on individuals, or widespread effects or a high risk of an adverse effect, including when supplying vulnerable individuals
What are the potential consequences of breaching Food Regulations?
There’s a hierarchy of enforcement action available to the relevant authorities, ranging from an informal verbal warning or advice to criminal prosecution with the threat of a custodial sentence.
You may face investigation by the relevant authorities, who can use criminal powers including the power to obtain a warrant to search your premises, seize goods or even arrest you. You may then be questioned under caution.
Because you provide food products to consumers, a FBO’s conduct is considered to be in the public interest, and as such will be privy to media and press coverage, adversely affecting your personal and business reputation for years to come.
It’s possible that you may be served with a statutory notice beholding you to take certain actions within a certain period. Failure to comply with this notice may result in separate legal action.
You may face criminal prosecution resulting in a fine of up to £20,000 per offense, disqualification from being a company director or even imprisonment. Criminal convictions can also impact your ability to travel abroad, take on certain public roles and responsibilities and work in certain industries.
There’s also the possibility that any injured or aggrieved parties could take civil legal action against you, which would run parallel against any criminal investigation or penalty.
How can you protect yourself from legal action, either Criminal or Civil?
The short answer is: ensure due diligence in adhering to food safety standards at all times and be able to provide evidence of that due diligence should you ever need to enter a defence against legal action or prosecution.
Ensure your have robust safety standards and procedures and commit to regular reviews of procedures to ensure compliance.
Designate a business operative to keep up-to-date with legislation and official guidance and that company policies and procedures match up to expectations and obligations. Additionally, make sure this person keeps all employees fully aware of their individual responsibilities and are fully trained in Food Health and Safety issues.
Ensure your Food Safety and Hygiene procedures are fully documented and evidenced, take out all relevant insurance and seek legal advice as soon as there’s any potential breach of regulations or legislation.
To find out more about how we can help keep your consumers safe as well as ensure your FBO is safe from enforcement action, speak to us today.
