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Local food authorities have considerable powers to investigate food safety offences, and every year, hundreds of businesses are prosecuted. For many businesses, there will have been warning signs, with enforcement escalating over time. Sometimes, a single serious breach may be prosecuted. This article explains key food safety risks faced by businesses and how to avoid prosecution.
Which authority?
While the Food Standards Agency (‘FSA’) is responsible for food safety across England, Wales and Northern Ireland - and develops food safety rules, issues guidance, enforces standards in high-risk establishments, and prosecutes the most serious cases - food safety law is usually enforced by local authorities, including suspected breaches by food manufacturers, retailers, restaurants, and takeaways.
Local authorities employ specialist officers to carry out inspections, investigations and enforcement action, supported by local authority lawyers. Food businesses must register with a competent authority, the FSA or a local food authority, depending on the nature of the business. Some food businesses, including those handling food of animal origin, require approval to operate.
Which legislation?
The Food Safety Act 1990 (‘1990 Act’) provides the framework for food safety law, including investigation and enforcement powers. It also creates some of the more serious food safety offences.
Below the 1990 Act, detailed rules derived from EU law are imposed by regulations. Food safety and hygiene offences are usually prosecuted under the Food Safety and Hygiene (England) Regulations 2013 (‘2013 Regulations’). Allergen mislabelling falls under the Food Information Regulations 2014, as well as the 1990 Act.
Main food safety offences?
The 1990 Act creates food safety offences, including: rendering food injurious to health (section 7); selling food not of the nature, substance, or quality demanded (section 14); and falsely describing or presenting food (section 15).
Such offences are usually reserved for the more serious cases, such as those involving harmful or dishonest conduct.
Many of the more routine prosecutions are under the 2013 Regulations. Regulation 19(1) provides that any person who fails to comply with any of the specified EU provisions commits an offence. These EU provisions create strict liability offences, including in relation to:
- hygiene requirements
- contamination risks (including pests)
- ‘use-by’ dates
- temperature control
- HACCP-based food safety procedures
It is an offence to fail to comply with a statutory notice, e.g. hygiene improvement, prohibition notice/order, or remedial action notice.
It is also an offence to intentionally obstruct an investigating officer lawfully exercising their powers, or without reasonable cause, fail to give assistance or information that an investigating officer may reasonably require, or to furnish false or misleading information knowingly or recklessly. (2013 Regulations, reg 17)
In any proceedings for an offence under the 2013 Regulations, it is a defence to prove that the accused took all reasonable precautions and exercised all due diligence to avoid the commission of the offence, either by themselves or by someone under their control. This includes, for example, cases where the commission of the offence was due to the act or default of another person.
Offences by directors and other company officers
Where an offence committed by a company is proved to have been committed with the consent or connivance, or attributable to the neglect, of directors, managers or similar company officers, that individual as well as the company commits the offence and may be prosecuted.
In practice, local food authorities pursue directors aggressively and directors of smaller businesses in particular are frequently prosecuted alongside the company.
Investigation powers
Enforcement officers have the right to:
- enter food premises at all reasonable times, without appointment or notice, with wide-ranging powers of inspection, seizure, and detention, including the requirement for assistance, for the purposes of ascertaining whether there has been a breach of food safety law
- obtain a warrant to enter premises in certain circumstances, including where permission to enter has been refused, and notice of intention to apply for a warrant has been given to the occupier (1990 Act, section 32)
Enforcement officers cannot compel persons to be interviewed. However, in the most serious cases (typically involving the FSA), enforcement officers may work with the police, who do have the power to compel the interview of suspects.
Enforcement approach
Local authorities must ensure that enforcement action taken by their authorised officers is in accordance with the Food Law Code of Practice (‘CoP’) and is reasonable, proportionate and risk-based. (CoP, para 6.2)
Local authorities must operate a graduated and educative approach to enforcement - often referred to as the hierarchy of enforcement - only progressing to formal action where informal action fails to achieve the desired effect and where circumstances indicate:
- a significant risk to health
- fraudulent practices
- deceptive practices (CoP, para 6.3)
The CoP also provides that local authorities must investigate suspected non-compliance and take ‘appropriate enforcement action’ to ensure that food businesses remedy established non-compliance. (CoP, para 6.4)
There is a tension here: in practice, repeated minor non-compliance, which may not present a significant risk to health, can and does lead to enforcement action, including prosecution.
Enforcement options
At the lower end of the hierarchy of enforcement, enforcement options include educating food business operators, giving advice, informal action, sampling, detaining, and seizing food. (CoP, para 6.3) Focussing on hygiene matters, further enforcement options include issuing a statutory notice:
Hygiene improvement notice (2013 Regulations, reg 6)
This will specify the grounds and matters that the officer believes have not been complied with and require failures to be remedied within a specified period. The recipient can appeal the notice to the magistrates’ court.
Hygiene emergency prohibition notice(2013 Regulations, reg 8)
This can prohibit the use of a process, treatment, premises or equipment. Taking immediate effect, it can force the closure of premises or cessation of specific activities.
With the obvious potential for financial and reputational harm, the officer must be satisfied that the ‘health risk condition’ is fulfilled; that is, there is an imminent risk of injury to health e.g. serious pest infestation.
Within three days, the local authority must apply to the magistrates’ court for a hygiene prohibition order, failing which the emergency notice lapses. The application should be heard at the earliest opportunity. The court will grant the order if satisfied, on the balance of probabilities, that there was an imminent risk of injury to health. The food business operator can oppose the application. If the application fails, the food business operator can seek compensation for any loss suffered.
Remedial action notice (2013 Regulations, reg 9)
If the food business requires approval to operate, the local authority has even more draconian powers: it can serve a remedial action notice prohibiting the use of any equipment or part of the food business, impose conditions upon or prohibit the carrying out of any process, or require the rate of operation to be reduced or stopped.
Importantly, the ‘health risk condition’ does not have to be met.
Accordingly, while any enforcement action must be reasonable, proportionate and risk-based, if satisfied that there has been a contravention (or where inspection has been hampered), an officer could prohibit the operation of all or part of a business without an imminent risk of injury to health. In addition, such a notice would not require the sanction of a court order, although the recipient could appeal the notice to the magistrates’ court.
When is there a prosecution?
The first priority of local authorities will be for food businesses to remedy any non-compliance. For serious breaches, however, local authorities may still consider prosecution. Local authorities typically consider the following factors as likely to warrant prosecution:
- Flagrant breach of the law such that public health, safety or well-being is put at risk
- Failure to correct an identified, serious potential food safety risk after being given a reasonable opportunity to comply
- Failure to comply in full or in part with a statutory notice e.g. improvement notice, prohibition notice/order, remedial action notice
- History of similar offences related to risk to public health
- Breach resulting in serious harm to individuals or the high risk of harm
- Obstructing an officer whilst undergoing their duties
If the local authority is considering prosecution, they will usually invite the business, and often directors, to an interview under caution. Such an interview could take place in person or in writing. Local authorities cannot compel persons to be interviewed; however, failure to respond may increase the likelihood of prosecution.
Local authorities often ask directors/officers to set out steps that they have taken personally to ensure compliance and, in any event, to approve written responses personally. Such responses can provide the evidence to enable the local authority to prosecute successfully directors/officers, as well as the company.
For less serious, first-time offences, where the offender has admitted the offence, a simple caution may be offered. This is not a criminal conviction but would be evidence of previous offending in the event of a future investigation or prosecution.
No prosecution shall commence after the expiry of three years from the commission of an offence, or one year from its discovery by the prosecuting authority, whichever is sooner.
Penalties
Most food safety offences, including under the 2013 Regulations, are either way offences, meaning that they can either be punished in the magistrates’ court by an unlimited fine or in the crown court by an unlimited fine and/or (for individuals) imprisonment for a term not exceeding two years.
Fines are calculated by reference to the Sentencing Council’s Definitive Guideline. For organisations, fines are determined by the seriousness of the breach and the financial circumstances of the offending organisation, with particular reference to turnover. Food safety fines for smaller organisations are often in the tens of thousands, while for larger organisations they can be in the hundreds of thousands or even millions. Tesco was fined £7.56 million in 2021 for selling out-of-date food.
Fines for individuals follow similar principles but are determined by reference to weekly income. Imprisonment for food safety offences is rare, although it is a risk for the most serious breaches, particularly offences involving a flagrant disregard for the law and/or where there was serious harm to individuals or the high risk of harm.
How to avoid prosecution?
Most food businesses have an opportunity to put things right before the risk of prosecution arises. Businesses should do so; if necessary, bringing in additional resources and external expertise. The costs of remedial action will usually be significantly less than the costs associated with prosecution, not to mention the risk of reputational harm.
Issues arise when, notwithstanding significant efforts to ensure compliance, local authorities find repeated breaches. Local authorities may view even minor breaches, if repeated, as sufficiently serious to warrant escalation. Local authorities may have a different view to the business as to what is reasonably required to ensure compliance. In these circumstances, effective engagement may be necessary alongside remedial action.
Unless appealed or withdrawn, any statutory notice must be complied with to avoid committing an offence. Due to the seriousness of the breach required, when a hygiene emergency prohibition notice, or remedial action notice, has been served, the business will already risk prosecution.
How a business responds to enforcement action will be critical to whether there is a prosecution, and who is prosecuted - directors, in particular, risk prosecution alongside the company. Food safety law is highly technical with difficult legal and evidential issues, including in relation to availability of legal defences, and individual liability. Expert legal advice is essential.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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