The Food Law Code of Practice (Scotland) Review 2013-2014

Peter Midgley of FSA Scotland introduced the day. Purpose to discuss the proposed changes to the Code of Practice (COP).

The amendment to the Code is proposed in response to recommendation 6 of the of the Scudamore Expert Advisory Group Report which states that FSA Scotland should review the Food Law Code of Practice (Scotland) and consider extending the scope of the food incident reporting arrangements to include non- hazardous food incidents.

The proposed revisions to the Code include the following:
i. Revised definition of a food incident to include food hazard, food fraud and non-hazardous incidents
ii. Food Authorities should update documented procedures for dealing with food incidents that are identified within their area.
iii. A Food Authority should seek the advice of the FSA if it is in doubt as to whether a food incident amounts to a food hazard.
iv. Intelligence from local authorities regarding suspicions of food fraud should be notified to the FSA.

The Code has caused FSA to look at clear intervention / escalation policy with triggers to warn of potential failure. There is a requirement for FSA to be clearer about priorities.

Communication of aims: FSA Scotland and Scottish Government ministers should make public statements that authenticity of food is important and food fraud will be treated as a criminal offence.

COP will develop enhanced intelligence gathering arrangements.
“Horsemeat scandal was nothing to do with enforcement.”
Local Authority sampling programmes will be co-ordinated.
Enforcement monitoring should include unannounced visits – this is not new!

Recommendation 57 is the most important for enforcers, to make most efficient use of resources. Resourcing budget is in the hands of local authorities elected members.

Message is that this COP is a powerful statutory force.

Annex 5 of the existing Code prescribes food establishment rating schemes that are used to set minimum frequency for food hygiene and food standards interventions based on the total of a range of separate risk scoring factors.

Annex 5 also sets out the criteria for determining the frequency for interventions at food establishments. These criteria are ranked and the collective total score is used to assign a risk category to an establishment. This risk score determines the minimum intervention frequency (i.e. how often an officer carries out an intervention at a food premises to check compliance with the law).

The level of food establishments' compliance is considered and rated by local authorities according to Annex 5 based on the following 7 separate elements (each factor has a range of scores with zero indicating the best compliance and/or least risk):
(i) The potential hazard (score 5-40)
(ii) Method of processing (score 0-20)
(iii) Consumers at risk (score 0-15) and an additional score of 0-22 if more than 20 persons in a defined vulnerable group are at risk
(iv) Level of current compliance with food hygiene and safety procedures (0-25)
(v) Level of current compliance with structure of the establishment (0-25); and
(vi) Confidence in management/control procedures (0-30)
(vii) Additional score of 20 if there are significant specific risks e.g. E coli O157

The FSA and local authorities are aware of the need to target finite resources on areas of greatest importance; in particular, to prioritise the monitoring of higher risk and non-compliant businesses. The need to reconsider whether the current risk rating and intervention frequencies are appropriate and represent the best use of enforcement resources in Scotland, was set out in the recommendations to the Expert Advisory Group established by Scottish Ministers to learn lessons from the 2013 horsemeat incident.

The Expert Advisory Group also recommended that the review of the Food Law Code of Practice (Scotland) should include consideration of extending the scope of the food incident reporting arrangements to include non-hazardous food incidents.

The proposal would revise the allocation of a risk category at an establishment to attempt to facilitate more proportionate intervention activities.

Feedback from local authorities across the UK indicates that the current breakdown in risk categories in Annex 5 is not functioning as well as intended, with excessively large numbers of establishments being allocated within the “C” category and its broad range including compliant establishments struggling to move to one of the lower risk categories.

The COP subsequently proposes minor changes to definitions changing the scoring cut offs. This would move from category C – 18 month frequency – moving from 42 – 71 to 52 – 71 and create a saving of 4.7% in intervention costs. This would of course have to happen in reality. Category D remains frequency of 24 months.

FSA believe that local authorities should not be using resources when it is not necessary and earned recognition may have a place. So there would be discretion to LA to reduce frequencies based on evidence of sustained compliance.

There would be no right created for businesses, no obligation to use maximum discretion. Objective of this would be to save net resources and would result in compliant businesses being subject of inspection only every 24 months.

FSA acknowledged that consistency of application may be a difficulty.

Clare Ireland of enforcement in Aberdeen presented
Food fraud will become known as “Food crime”.
Food incidents are defined in three categories:-
Hazardous, criminal substitution, non hazardous food incident.
Where deliberate act to mislead then graduated approach will not apply because it is a criminal act.