New sentencing guidelines have been published today which are anticipated to result in a significant increase in fines for organisations found to be in breach of food hygiene and safety offences. At the same time the FSA has launched a food law prosecutions database.
The new sentencing guidelines will be applied by the Courts from 1 February 2016 and are available to download from the Sentencing Council's website.
The guidelines cover offences committed under Regulation 19 of the Food Safety & Hygiene (England) Regulations 2013 and the corresponding regulations in Wales. These regulations cover a wide variety of food related offences from misleading labelling through to food poisoning due to poor food hygiene and safety standards, and failing to retain the required documentation to ensure the traceability of products.
The guidelines specify a range of fines from £100 to £3million depending upon factors including:
- the offending organisation's annual turnover
- the level of culpability of the offender; and
- the level of actual harm and/or risk of harm.
The most significant change introduced by the guidelines is the focus upon an organisation's annual turnover in order to reach a starting point for a fine. For the most serious offences committed by organisations with an annual turnover of £50milion the suggested range of fine is from £500,000 to £3million with a starting point of £1.2million.
The Sentencing Council explained that "The increase in penalties for serious offending has been introduced because in the past, some offenders did not receive fines that properly reflected the crimes they committed. The Council wants fines for these offences to be fair and proportionate to the seriousness of the offence and the means of offenders".
The new guidelines are published at the same time as the Food Standards Agency's announcement that it has published a live map (which can be accessed here) which links to a database of successful food safety and hygiene prosecutions in England, Wales and Northern Ireland.
The database gives details of local authority food hygiene and food safety prosecutions including the name of offender, level of fine and details of the particular legislation breached. The database is intended to help enforcement authorities to share knowledge but it may also assist organisations when selecting suppliers and may potentially increase the amount of adverse publicity following prosecution.
So what does all this mean?
In light of the tougher sentencing policy, food businesses are advised to:
- review and audit current systems and, where required, a tighten up company policies and procedures to ensure that the company doesn't inadvertently fall foul of food regulations
- ensure that not only are their policies and procedures in place but that they are actively followed at all levels of the organisational chain;
- ensure that robust due diligence is undertaken in respect of suppliers. The FSA database may assist in identifying any concerns regarding compliance; and
- identify any deficiencies whether in process, policy, training or implementation and swiftly address any issues to ensure the best possible means of applying a successful due diligence defence in the event of a prosecution.