Recent draft guidance from the FSA on undercooked burgers requires food businesses to validate their procedures and issue consumer advisory statements. Will those steps assist food businesses in defending against prosecutions and civil claims?

High-risk foods are on the Food Standards Agency's ("FSA") radar, with a 43 page draft guidance published recently on undercooked burgers. It requires food businesses, in certain cases, to validate their procedures to prove a sufficient reduction of risk, and to demonstrate that to the local authority. Food businesses should also issue a 'consumer advisory statement'.

In relation to high-risk foods such as undercooked burgers or oysters, and high-risk practices such as sous-vide, will such steps assist a due diligence defence, in the event of a food safety/hygiene prosecution? Will a consumer advisory statement help defend against civil food poisoning claims?

1 'Validated' Procedures and Prosecutions

In Kilhey Court Hotels Ltd v Wigan MBC (2004), the food business established a due diligence defence where it had a "comprehensive and sophisticated" system, a "properly implemented procedures manual", well trained, supervised and experienced staff, and twice-yearly independent food audits. The unsatisfactory state of the kitchen on the day that the local authority visited was due to the fault of 3 staff and not the defendant company.

This illustrates the factors that a court will consider when determining whether the defendant company has taken 'all reasonable precautions and exercised all due diligence'. Therefore a defence would be bolstered further by a company serving a high-risk food where it can establish that it had devised and implemented a 'validated' procedure, where the hazard has been shown to be reduced with reference to e.g. microbiological testing and scientific literature, and that this procedure had been demonstrated to the local authority who had, at the very least, not opposed it.

In Carrick DC v Taunton Vale Meat Traders Ltd (1994) the defendant meat trader successfully established a due diligence defence, having relied on the report of the local authority meat inspector to the effect that the meat the trader wished to sell was fit for human consumption. The court held that it was reasonable for the defendant to rely on the meat inspector, even though the meat inspector had committed an error of judgment and the meat was not fit for human consumption.

Reliance on the local authority's representation can assist a due diligence defence. However, a note of caution arises here; there was clear reliance on the local authority meat inspector. Where a food business presents its validated procedure to a local authority in relation to a high-risk food, the degree to which the local authority accepts the procedure is crucial. In some cases the local authority may not expressly 'approve' the procedure or agree that it is safe. Instead, local authorities may simply 'not oppose' the sale of the product based on the procedure presented, with responsibility remaining entirely with the food business.

Also, changes to the procedure that affect the risk that are not notified to the local authority, or failures to adhere to the policy, may extinguish any reliance that can be placed on a local authority.

2 Consumer Advisory Statements

The draft FSA guidance on undercooked burgers recognises that there is no specific requirement for labelling of "less than thoroughly cooked burgers" but notes that Article 14 of Regulation (EC) 178/2002 states that when considering whether food is unsafe, regard shall be had to information provided to consumers.

Presently, the following draft is put forward by the FSA: "The Food Standards Agency advises that the consumption of raw or less than thoroughly cooked [products of animal origin, such as meat, offal, fish and shellfish] or [less than thoroughly cooked burgers] increase your risk of illness. This especially applies to children, pregnant women, the elderly and those with weakened immune systems. Please see NHS Choices for more information".

Caution must be taken in treating the FSA's guidance as imposing a strict obligation in law to issue such a statement; there is a risk that local authorities might wrongly attempt to take formal action where a food business does not issue such a statement. That said, for many food businesses it may not be an onerous step to add such a statement to menus and to train staff accordingly.

It is worth pausing to consider what practical benefit the consumer derives. It is relatively easy for a consumer to assess the likelihood of harm from handling e.g. a hot drink, and to take heed of a warning that a drink may be hot. The consumer can make an informed decision as to whether to accept that risk. But how does a consumer assess the likelihood of harm when consuming a rare burger, where it is very difficult even for a microbiologist to assess the relative risk?

3 Consumer Advisory Statements and Prosecutions

Where the offence relates to food alleged to be unsafe (or similar), then the food business might place reliance on Article 14 of Regulation (EC) 178/2002, in the same way that the FSA guidance does, by contending that the food was in fact safe when taking into account the information provided to the consumer.

Accordingly, this might assist the food business in arguing that no offence was at all committed. Failing that, in the event of a conviction, it might at least serve as a mitigating factor in sentencing, since it could be argued that the consumer was not misled about the risk arising from the product.

4 Consumer Advisory Statements and Civil Claims

S3(1) of the Consumer Protection Act 1987 ("CPA"), which applies to food and non-food products, states that there is a defect if "the safety of the product is not such as persons generally are entitled to expect". Assessment of "safety" includes instructions and warnings. Due to a lack of food related case law under the CPA, it is useful to consider non-food cases.

Buckley v Henkel Ltd (2013) involved a consumer who purchased hair-dye. It included a patch test to help determine whether the consumer was allergic to it. She did not suffer a reaction to the patch test, but on using the full product she suffered a severe allergic reaction. However, the instructions made clear the risk of a severe allergic reaction and stated that the patch test was not necessarily determinative.

The judge stated "persons generally would not be entitled to expect that certain products would be completely free from risk (particularly if those risks are highlighted)…one does not necessarily have to be aware of the exact ingredients or understand how they work to know they carry a risk". So there can be a voluntary acceptance of risk by the consumer, even where the likelihood of harm is not easily quantifiable.

In the case of Relph v Yamaha Motor Co Ltd and others (1996) the claimant suffered an injury when a three wheel motor vehicle overturned. The claimant claimed to have read the instruction manual carefully, including the label that the machine should only be ridden by an experienced rider and that it could be dangerous for a novice. However, he was a novice, did not wear a helmet and let his child ride the machine.

Although he claimed that he would not have ridden the machine if he had been warned of a risk that it would overturn, the court found against him.

Accordingly, we see the court allow for the risk of an inherently dangerous activity to be transferred to the claimant, even where the warning potentially did not fully inform him of the exact nature of the risk that had in fact occurred.

In Sam B & Others v McDonald's Restaurants Limited (2002) it was contended that hot coffee was unsafe because of the risk of scalding when it was spilled. The judge found that "products that are obviously dangerous (such as a knife) are not defective: the consumer has a free choice whether to expose himself to the risk, but that choice must be an informed decision".

Arguably there is a difference in nature between a product with an obvious and quantifiable risk (such as hot coffee), and one where the risk is not obvious or is not quantifiable (such as a raw oyster). That goes to the issue of whether there is 'informed choice'. However, where there is informed choice, the court appears to value the right of the consumer to choose, and it is arguable that consumers, or 'persons generally' (to use the CPA terminology) ought to be assumed to have a degree of intelligence such that they are seen to be capable of calculating and accepting risk.

In conclusion, it might not seem palatable to argue that a biologically unsafe product such as an oyster infected with norovirus is in fact rendered safe in law due to a warning that it might not be safe. But on the other hand a case exists to say that even where the likelihood of harm is not readily quantifiable, a warning (or consumer advisory statement) of increased risk may found an argument that instructions and warnings sufficient to give the consumer an informed choice render the product safe in law. This may prove an interesting battleground in the future.