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Food Safety Law | Food Crime

Jeremy Barnett regularly advises in Food Crime cases, both for the Prosecution and the Defence. Cases concern selling food which is damaging to health, not of the quality that consumers expect or mistakes in the way in which the food is labelled, advertised, packaged and presented, which result in allegations that the labelling is false or misleading.

The majority of cases turn on whether or not the Defendant company has a defence that he took all reasonable steps in Due Diligence. There is a great deal of case law on this subject, but it is clear that modern manufacturing techniques make many of the decisions of the courts obsolete. It is a question of fact and degree in each case which often turns on highly specialist expert evidence. Jeremy has been involved in a number of cases both in the Toy and Food Sectors which have helped define what is reasonable and what is unacceptable practice. 

The main food laws that create Food Crime offences relate to food imports, exports, safety, traceability, labelling and product recalls and withdrawals are:

The Food Safety Act 1990 ( as amended)

provides the framework for all food legislation in Great Britain. Responsibilities under the Act are:
to ensure you do not include anything in food, remove anything from food or treat food in any way which means it would be damaging to the health of people eating it;to ensure that the food you serve or sell is of the nature, substance or quality which consumers would expect;to ensure that the food is labelled, advertised and presented in a way that is not false or misleading.

The main provisions are:

Section 7: rendering food injurious to health by:

adding an article or substance to the foodusing an article or substance as an ingredient in the preparation of the foodabstracting any constituent from the foodsubjecting the food to any process or treatmentwith the intention that it shall be sold for human consumption.

Section 14: selling to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser.

A purchaser of food can range from a customer at a shop to one company buying from another.

Section 15: falsely describing or presenting food.

Under section 20, if the commission of an offence is due to the act or default of another person, the other person is guilty of the offence.


Under section 21 in proceedings for an offence under the provisions of Part 2 of the Act (which includes the offences listed above), it is a defence for a food business operator to prove that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence.  

 The General Food Law Regulation (EC) 178/2002 

Is EC legislation on general food safety and food crime.

Imports

Article 11 states that food imported into the European Union (EU) for placing on the market shall comply with the requirements of food law recognised by the EU, or if there is a specific agreement between the EU and the exporting country, those requirements.

Exports 

Article 12 states that food exported (or re-exported) from the EU shall comply with the requirements of food law, unless the authorities of the importing country have requested otherwise, or it complies with the laws, regulations and other legal and administrative procedures of the importing country.In the case of exporting or re-exporting food, provided the food is not injurious to health or unsafe, the competent authorities of the destination country must have expressly agreed for the food to be exported or re-exported, after having been fully informed as to why the food could not be placed on the market in the Community.

Where there is a bilateral agreement between the EU or one of its Member States and a third country, food exported from the EU needs to comply with its provisions.Safety Article 14 states that food shall not be placed on the market if it is unsafe. Food is deemed to be unsafe if it is considered to be: injurious to health·unfit for human consumptionThe article also indicates what factors need to be taken into account when determining whether food is injurious to health or unfit. The central concept of unfitness is unacceptability. Food can be rendered unfit by reason of contamination, by the presence of foreign objects, by unacceptable taste or odour as well as by more obvious detrimental deterioration such as putrefaction or decomposition (see Article 14(3) and (5)).

Where food is found to be in breach of specific legislation governing its safety, it can be presumed to be either injurious to health or unfit for human consumption and thus ‘unsafe’ for the purposes of Article 14.

Presentation

Article 16 states that labelling, advertising and presentation, including the setting in which the food is displayed, of food shall not mislead consumers.

Traceability


The requirements apply to any business that trades in food at all stages of the food chain. This includes primary producers, manufacturers, wholesalers, retailers, transporters, distributors, those dealing in the purchase and sale of bulk commodities, caterers and food brokers.

Article 18 requires food business operators to keep records of food, food substances and food-producing animals supplied to their business, and also other businesses to which their products have been supplied. In each case, the information shall be made available to competent authorities on demand.

The purpose of the traceability provisions is to assist in targeted and accurate withdrawals and to give information to control officials in the event of food safety problems, thereby avoiding the potential for wider disruption.

Withdrawal, recall and notification

Article 19 requires food business operators to withdraw food which is not in compliance with food safety requirements, if it has left their control and to recall the food if has reached the consumer.
Withdrawal is when a food is removed from the market up to and including when it is sold to the consumer, recall is when customers are asked to return or destroy the product.

Food businesses must also notify the competent authorities (their local authority and the Food Standards Agency). Retailers and distributors must help with the withdrawal of unsafe food and pass on information necessary to trace it.
Where food business operators have placed a food on the market that is injurious to health, they must immediately notify the competent authorities. There are also similar provisions for animal feed.

The General Food Regulations 2004 ( as amended)


Provides for the enforcement of certain provisions of Regulation (EC) 178/2002 ( including imposing penalties) and amends the Food Safety Act 1990 to bring it in line with Regulation (EC) 178/2002

Regulation 4 creates criminal offences for breaches of Articles 12, 14(1), 16, 18(2) or (3) and 19 of the General Food Law Regulation (EC) 178/2002.

Regulation 5 lays down the penalties for the breaches of the articles listed above:
on conviction in a Crown Court, a fine or imprisonment for a term not exceeding two years or bothon conviction in aMagistrates’ Court, a fine or imprisonment for a term not exceeding six months or bothThe defences under sections 20 and 21 of the Food Safety Act also apply to these regulations.

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