Anita Clifford discusses the emerging focus on ‘food crime’ by law enforcement agencies in the UK and elsewhere, and scope for developing the criminal law response to wrongdoing in the food and drink industry.

On 1 December 2016, the first Food Crime Reporting Hotline was launched in the UK. Encouraging industry insiders to report instances of dishonesty in the sale, manufacture and supply of food, the hotline tackles an emerging area of criminal law and complements the first-ever assessment of UK food crime published by the Food Standards Agency and Food Standards Scotland earlier this year. It is also an early major initiative of the UK’s new National Food Crime Unit, which was established in 2015.

The increased focus on food crime reflects changing social attitudes towards food and drink and the growing interest in the provenance of what we consume. Whilst enquires by urban thirtysomethings into the precise patch of grass that a free-range chicken inhabits might be fodder for the satirists behind cult TV show Portlandia, the focus on ‘farm to fork’ eating and ethical sourcing has spawned a lucrative industry. According to the Food Standards Agency the UK food and drink industry is worth up to £200 billion annually and accounts for 11% of the UK economy, yet reports of food crime are low and detection is difficult.[1] The effect of this is that it is relatively easy for businesses to cut corners, or even for organised criminals to exploit the system. The more intricate the supply chain, the greater the opportunity for wrongdoing.

What is food crime?

So, what is food crime? Thus far, law enforcement agencies in the UK have avoided an exhaustive definition. The Food Standards Agency in its February assessment report offers a working definition of “dishonesty relating to the production or supply of food which is either complex or likely to result in serious detriment to consumers, businesses or the overall public interest.”[2] In July 2016, the National Food Crime Unit Head Andy Morling described it as “any serious, dishonest conduct that impacts detrimentally on the quality or authenticity of food and drink.”[3] The priority for UK law enforcement agencies therefore seems to be taking action against fraud which impacts quality. Both informal definitions also highlight the need for scale and potential for serious public impact before activity will cross the threshold for a ‘food crime’ and warrant criminal investigation.

The most obvious example of conduct of this kind is, of course, the 2013 scandal in which horsemeat was sold in major UK and Irish supermarkets. In August 2016, three men were charged by the CPS with fraud in connection with ‘Horsegate’. The National Food Crime Unit has also been actively investigating the inclusion of a chemical drug, DNP, in weight loss products for consumption. Other key examples of food crime from around the world include the sentencing in the US in February 2016 of a cheese manufacturer whose Parmesan was peppered with wood pulp,[4] and active investigations into adulterated olive oil and the sale of fake manuka honey products from New Zealand at premium prices.

Scope for development

Arguably, however, the scope of food crime encompasses far more than fraud. There is potential for offences of market manipulation to arise, as well as offences of theft, bribery and forced labour. In August 2016 a peculiar story broke of a US entrepreneur in the business of vegan mayonnaise manufacture paying a team of people to pose as fake customers, mass purchase his ‘Just Mayo’ products from Whole Foods and make numerous in-store and phone enquiries. The aim was to drive up demand and encourage permanent stocking of the brand. Whilst unclear whether the conduct amounts to ‘spoofing’ the market, or bluffing it to force demand, there is at least an argument that it could do so.[5] Far more broadly, the lucrative agricultural commodity market is also vulnerable to sophisticated manipulation by traders.

Elsewhere, Canadian organised criminals were convicted in November 2016 for the theft of nearly 3,000 tonnes of maple syrup, worth CAD $18 million, which were sold in part to the Asian market. Closer to home, companies with a UK nexus engaging in food production in developing countries may also risk exposure to liability for bribery under the Bribery Act 2010. Additionally, a separate issue which the UK Government has drawn attention to is the link between human trafficking and food processing and agricultural work.[6]

The public interest in investigation and enforcement

These few examples highlight the potential reach of food crime as it develops into a new area of criminal law, distinct from the existing framework surrounding food safety and hygiene.[7] Whilst some examples may, at first glance, not be taken seriously, the implications of food crime on consumers and the economy can be severe. At a base level, it amounts to market abuse and has the potential to squeeze legitimate businesses out of trading as they are unable to compete. For the consumer, it can present a health risk depending on the conduct in question, undermines a person’s autonomy over what they or their family consume and drives the price of obtaining quality food up. The latter affects not only consumers in developed countries but has wider implications for those in developing and transitioning countries where access to affordable, quality food is a major issue.

It follows that as awareness of food crime and its ramifications increases, the expectation that companies operating in the the food and drink industry will know the provenance of their products and how precisely they are being sold and marketed is set to grow. This will likely translate into a need to be fully across company processes, including distributors and supply chain intermediaries wherever located, extending to potentially vetting their practices, ingredients sources, conduct, worker treatment and even suppliers. Whilst wrongdoing in the food and drink industry might not be new, the investment into the investigation of food crime as a distinct category of misconduct is, and suggests that the reach of the criminal law is evolving.