Volume 14: Responsibilities for Human and Animal Health
4.
Red meat hygiene after the slaughterhouse
The Food Safety Act 1990
Introduction
Defence of due diligence
Registration, licensing, inspection
Labelling
Food Hygiene Regulations
Section 40 Codes of Practice
4.67 The Food Safety Act 1990 1 repealed Part I of the Food Act 1984, which dealt with the composition and labelling of food, unfit food, hygiene, the registration of premises and licensing of vehicles, control of food premises and inspection and control of infected food; it also repealed sections 76-86 which dealt with sampling and analysis. It re-enacted most of these provisions with some amendments, and introduced certain other requirements.
4.68 The 1990 Act replaced the range of defences that could be offered in response to proceedings for various offences under food safety and hygiene legislation with a single defence that all reasonable precautions had been taken and all due diligence exercised to avoid the commission of the offence. 2 In oral evidence to the Inquiry, Mr Stephen Ridge, a quality assurance executive for Somerfield Stores, said that
. . . we have a liability under the Food Safety Act to sell safe food. If at any time we did not believe the product was safe we would have no alternative but to remove it from sale. 3
. . . customers are looking for reassurance from us that the product they are going to buy is safe. We are trying very hard to ensure that the product we are supplying is safe. We were taking whatever sensible precautions can be taken. 4
He and other witnesses representing food retailers described steps their companies had taken in this respect; for example, they had required their suppliers to remove spinal cord from cuts of in-bone beef as one of a number of components that they would not accept. 5
Registration, licensing, inspection
4.69 The Act also extended the existing provisions on the registration of certain premises. It enabled Ministers to make Regulations requiring premises used or proposed to be used for the purposes of a food business to register with or be licensed by enforcement authorities, and to prohibit them from being used for that purpose unless they were registered or licensed. 6 The licensing requirement was to apply only where Ministers considered this necessary or expedient for the purpose of:
- securing that food complied with food safety requirements or in the interests of public health, or
- protecting or promoting the interests of consumers. 7
4.70 The Act re-enacted the earlier powers given to authorised officers to inspect food and to seize it. However, the criterion for seizure was widened. Previously, the authorised officer had to be of the opinion that the food was 'unfit for human consumption'. Under the 1990 Act, an authorised officer had to be of the opinion that it failed to comply with food safety requirements; 8 ie, if
- it had been rendered injurious to health by adding articles or substances, or using articles or substances as ingredients, or abstracting any constituents, or subjecting the food to any other process or treatment;
- it was unfit for human consumption; or
- it was so contaminated that it would not be reasonable to expect it to be used for human consumption in that state . . . 9
4.71 Authorised officers could also seize food if, otherwise than on such an inspection, it appeared to them likely to cause food poisoning or any disease communicable to human beings. 10
4.72 Also re-enacted were earlier powers given to authorised officers to inspect food premises and to purchase or take samples. Such inspections were intended to identify contraventions of the legislation or of Regulations or Orders made under it. They enabled authorised officers to identify risks arising from the activities carried out and to assess the effectiveness of food businesses' own assessment of hazards and control of risks.
4.73 If an authorised officer had 'reasonable grounds' for believing that the proprietor of a food business was failing to comply with any relevant regulations, he could serve an improvement notice setting out the grounds for concern, the shortcomings, and proposed remedial measures which had to be taken within a specified period. If a proprietor did not comply, he was guilty of an offence. 11 If he was convicted, the court could impose a prohibition notice; ie, prohibit the use of the offending process or treatment or the use of the premises or equipment. 12 If an enforcement officer was satisfied that an imminent risk to health was posed, he could issue an 'emergency prohibition notice'. Such notices had to be confirmed by a court within three days.
4.74 Under Article 14 of the Official Control of Foodstuffs Directive (89/397/EEC), the UK Government was required to provide the European Commission with information including the number of inspections carried out and the enforcement action consequent upon those inspections.
4.75 The 1990 Act re-enacted with minor amendments the provisions of the Food Act 1984, described in the 'Composition and labelling of food' section earlier in this chapter, relating to the description and presentation of food, including labelling and advertisements. The Food Labelling Regulations 1984 continued in force, subject to amendments introduced by the Food Labelling (Amendment) Regulations 1989 and 1990. Among other changes, the 1990 Regulations replaced provisions permitting the use of a 'sell by' date with a requirement that a 'use by' date be indicated for microbiologically highly perishable foodstuffs. 13
4.76 The detailed requirements which EHOs had to enforce were set out in food hygiene Regulations relating to issues such as hygiene, fitness, labelling, composition, storage, shelf-life, processes, premises, and vehicles. Examples were:
- the Food Hygiene (General) Regulations 1970 - described in paragraph 4.32 - to which the butchery of meat for the UK market only had to conform;
- the Food Hygiene (Amendment) Regulations 1990, which controlled the temperature of perishable food on display in retail outlets and distribution and catering operations, and also implemented a two-tier requirement for perishable foodstuffs under chilled storage, requiring them to be held at particular temperatures depending on their risk from pathogens, including during transportation and up to and including retail;
- the Food Hygiene (Market Stalls and Delivery Vehicles) Regulations 1966 - mentioned in the 'Hygiene' section earlier in this chapter - which contained 'very basic requirements regarding cleanliness' in respect of domestic transport; 14 and
- the Food Hygiene (Docks, Carriers etc) Regulations 1960 which, among other things, set out requirements applying to dock workers and other food handlers in respect of the handling of food generally and meat in particular. 15
4.77 Section 40 of the Food Safety Act 1990 enabled Ministers to issue codes of recommended practice on the execution and enforcement of the Act and the Regulations made under it, and every food authority had to have regard to any relevant provision of any such code and had to comply with any direction given by Ministers. Some 20 Codes of Practice have been issued under section 40:
4.78 An Implementation Advisory Committee (IAC) was established in 1990, to draw up these Codes of Practice and to ensure the consistent enforcement of food safety legislation on a nationwide basis. The Codes were revised to reflect subsequent changes to the legislation, and reissued. They served two purposes; they reiterated the key relevant duties and powers contained in the 1990 Act, and set out how these should be fulfilled and enforced.
4.79 For example, Code of Practice No. 3 Code of Practice No. 3 set out the powers of entry possessed by an authorised officer, when detention and seizure powers should be used, and how unfit food should be destroyed or disposed of. Code of Practice No. 7 stated that samples should be taken by officers who had been properly trained in the appropriate techniques and were qualified or experienced in food law enforcement. It described how samples should be divided for analysis, transported and stored.
4.80 Code of Practice No. 9: Food Hygiene Inspections (as revised in September 1995) stated that such inspections had two purposes. Firstly, they were to identify risks arising from the activities of food businesses and the effectiveness of their own assessments of hazards and control of risks. The emphasis was on control of raw materials and processes rather than on final product testing and consideration of the structure and layout of the premises. Secondly, inspections were to identify contraventions of the 1990 Act and relevant Regulations and seek to have these corrected.
4.81 Premises which posed a higher potential risk were to be inspected more frequently than lower-risk premises. The Code's Inspection Rating Scheme used the following categories:
4.82 Within these categories,
16 points were assigned on the basis that the greater the perceived risk, the more points were scored. The total number of points determined the minimum inspection frequency, as follows:
4.83 Food authorities were to regard these frequencies as the minimum and could inspect more frequently if they considered this appropriate. They were not required to use the Scheme, but any alternative had to operate on similar principles and result in at least the same minimum inspection frequencies.
1 L1 tab 2
2 Section 21
3 T63 p. 128
4 T63 pp. 117-18
5 T63 p. 101
6 Section 19(1)
7 Section 19(2)
8 Section 9(1)
9 Section 8(2)
10 Section 9(2)
11 Section 10
12 Section 11
13 L11 tab 11 Regulations 3-10
14 The Microbiological Safety of Food Part II (Report of the Committee on the Microbiological Safety of Food chaired by Sir Mark Richmond (1991) (M22 tab 4) p. 105 para. 7.10
15 These related to the personal cleanliness of food handlers and their clothing
16 Which were considered in detail in Annex 1 to the Code
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