On 15 June it was announced that the confectionary giant Cadbury Schweppes was facing an unlimited fine after pleading guilty in Birmingham Magistrates Court to three food and hygiene offences. Cadbury was prosecuted by Birmingham City Council for producing and selling “unsafe” chocolate contaminated with salmonella.

The conviction has focused attention on the growing public concern about food safety and the increasing involvement of the Foods Standards Agency (FSA) in regulating and enforcing the law.

Not all cases will be so dramatic but even smaller incidents can result in FSA scrutiny. Anyone providing or producing food is at risk of prosecution. We identify here some of the steps that can be taken to reduce the likelihood of prosecution and what you can do in the event of investigation/prosecution.

The Cadbury case, which led to dozens of people becoming ill last year, resulted in the company being forced to withdraw more than one million bars of chocolate from sale. This, together with the associated loss of consumer confidence, has already cost the company in excess of £30m. The level of the fine will be decided at a separate hearing at Birmingham Crown Court in July 2007. It could run into hundreds of thousands of pounds. The conviction also makes Cadbury vulnerable to private legal proceedings from affected consumers.

Although Cadbury was prosecuted by the City Council, the FSA was heavily involved, providing resources and funding, in accordance with its remit to oversee local government enforcement of food legislation.

The law

  • The production, processing, distribution, retail, packaging and labelling of food stuffs are governed by a mass of laws, regulations, codes of practice and guidance. 
  • The FSA regularly issues guidance to food industry representatives and other stakeholders on a range of topics, often as a result of new regulations coming into force. The FSA website http://www.food.gov.uk/ is well designed and informative.
  • Inspectors’ powers of investigation are set out in the Food Safety Act 1990 (as amended) and relevant regulations. They are wide.

Penalties

  • Improvement notices
  • Prohibition orders
  • Emergency prohibition orders/control orders
  • On conviction in Crown Court - unlimited fine and/or custodial sentence of up to two years.

Who is at risk of prosecution?

The most obvious organisations are those in the farming, fishing and food producing industries food retailers, the catering, hotel and leisure industries and care homes and hospitals. However, food safety legislation applies to anyone who produces or provides food, including schools, offices with canteens or staff cafeterias, railway companies, airlines, and prisons.

In the event of an incident

  • Contact your legal adviser at the earliest possible opportunity
  • Notify your insurers as soon as practicable
  • Ensure that you co-operate fully with the authorities
  • The following aggravating features are to be avoided, if possible:
    • seriousness of the breach how far below the standard have you fallen?
    • duration of the breach (this is a key feature of the Cadbury prosecution and must be kept to an absolute minimum)
    • a history of previous warnings (earlier incidents/previous convictions)
    • non-co-operation
    • death or serious injury.

Who might arrive at the premises following a complaint?

  • Trading Standards Officers/Environmental Health Officers from the Local Authority (usually following complaint from the public but could be an unannounced inspection)
  • Ambulance crew - if someone is taken ill on the premises be careful what you say to ambulance crew as they may be interviewed in the investigation
  • The police - only exceptionally in case of serious outbreak with serious consequences (eg death).

Can you refuse entry to the investigators?

The short answer is no - inspectors have very wide powers to inspect any food intended for human consumption and to detain and seize food suspected of not complying with food safety requirements. It is an offence to obstruct an investigation. Be prepared for what the investigators want, namely information about your systems; staff and documents. It is vital to have the right documentary evidence available.

Defences

If samples are taken it is important to observe the inspector very carefully and to make a full note of the way in which the samples are obtained as soon as practicable.

Particular issues to look out for are:

  • the inspector’s qualifications (is he qualified?)
  • whether the inspector is gloved
  • where the sample is collected from
  • the receptacle into which the sample is put
  • any other features which may potentially contaminate the sample
  • are you provided with a sample for your own use? If not, you may have a defence
  • can responsibility be placed on your supplier?

Statements

  • Employees may be asked to provide statements either voluntarily or they will be interviewed under caution (PACE). Generally, PACE interviews will be of managers only. Your lawyer may be able to assist with preparing voluntary statements/attending PACE interviews.
  • It is important to note who is ready and prepared to answer questions, in advance of any incident.

Mitigation

  • Co-operation is essential
  • Early acceptance of fault
  • Clear evidence that you have made changes to avoid repetition.

Steps to avoid prosecution or minimise a penalty

  • Choose your suppliers carefully. Identify and retain good lawyers to assist at short notice as required.
  • Before any incident occurs ensure that adequate systems, documents and responsible officers are in place.
  • Documents should include clear method statements, risk assessment policies, complete records of any previous investigations, records of the steps taken to comply with previous penalties, full details of suppliers and staff training records
  • The need for responsible officers requires clear job descriptions with well defined areas of responsibility, details of qualifications and experience of workers, evidence of appropriate training.
  • Systems will include effective sanitation and cleaning policies, regular and well-documented maintenance and inspection of equipment and facilities, effective food safety policies.
  • Up-to-date knowledge of current and proposed regulations, codes of practice, and guidance. Legal advice should be sought to ensure compliance.