So far, the Food Standards Agency (FSA) has announced 84 UK-wide food recalls or withdrawals due to undeclared allergens throughout 2016, and a further 79 food recalls due to possible contamination or the presence of a foreign object, such as plastic or glass.
This continues a trend in the rise of product recalls in the food and drink industry, which according to the FSA grew by 78% in 2015. As well as reflecting the growing number of people in the UK who suffer from food allergies and intolerances, this might also suggest that both the industry and the regulators (Food Standards Scotland (FSS) and the FSA) are improving their testing and detection of such issues. After December 2016, further nutrition labelling regulations will come into force, and so it can reasonably be anticipated that more incidents will arise.
What are your core obligations?
Food business operators in the UK must ensure food is safe and traceable (with both its origin and destination known) and to ensure that descriptions are not false or misleading. If there is a problem, then you must cooperate with the authorities to withdraw or recall products. These obligations fall primarily with the operator under whose name the food is marketed, or for operators outwith the EU, the importer. Where the FBO fails to comply, there is potential criminal liability, as well as regulatory implications and possible civil claims.
How can you prepare for a product issue?
The presence of a small amount of undeclared soya in a particular product may seem trivial, but for those who are allergic it could provoke a major reaction. Although Mars stated that the discovery of a small piece of red plastic earlier this year in one of its products was an isolated incident, the company took wide-ranging steps to recall products, estimated to cost millions of dollars. Could your business survive a similar incident?
Preparation is key
Although crises often involve evolving, unpredictable problems, they can still be planned for. Indeed, in the current culture of regulatory involvement, having proper procedures in place to deal with any crisis and to investigate near-misses, is essential, and is a focus of the regulators. Both legal and commercial considerations need to be taken into account, and your plan will need to be tailored to your particular business.
Escalation is a major risk
If and when an issue does develop, it is crucial to recognise it early and follow your plan to avoid it becoming a crisis. Ideally you should deal with the issue before it gains publicity, particularly if it is internal rather than having been triggered by an external event, so the first the public hear of your problem is that you have solved it. As this may not always be the case, you will have to consider issues of public statements, communication with employees and customers, contractual obligations, and insurance requirements.
The matter may originate with a supplier rather than any act or omission of yours.
Communications are important
There is a narrow line between taking responsibility for an incident and taking the blame. The best approach is to explain what you are doing to fix the problem, including discussions with the Regulator (FSA) and providing appropriate practical advice to those who may be affected.
Assemble a Crisis Team
Made up of representatives from legal, operational and PR, your crisis team should advise you on the wording of any statement before it is issued and how best to address ill-informed and/or hostile social media comments.
During this public scrutiny, you will also have to carry out your own investigations into what went wrong, and you may also have to deal with or prepare for regulatory, criminal or civil investigations. In general any regulatory action or prosecutions following an incident will take into account your cooperation with the investigation, your record, what steps you took to prevent the risk and how you reacted to the issue.