Food contamination and the law: the policy of prevention

When integral parts of people’s everyday routines, such as food, go wrong people begin to worry. So it was unsettling whenMars was recently forced to issue a recall due to salmonella fears.Then it emerged that thousands of eggs had been sold in the UK which had been contaminated with the toxic pesticide fipronil.

As this is a serious concern for all consumers, contaminated food presents further challenges for lawyers advising those in the food industry. Public policy and safety concerns require that,insofar as possible,every foodstuff be kept free from substances which might be a health concern. The law’s solution to this is, unsurprisingly, to impose a number of onerous obligations on individuals who are involved in the supply chain.

The first strand of these obligations are regulatory, and for the most part in England are set out in the Food Safety and Hygiene (England) Regulations 2013. Operators of food businesses are required to comply with the requirements of those Regulations, or they risk being convicted of criminal offences and subjected to a fine or, in some instances, even being sentenced to a term in prison.

The most obvious regulatory offence that businesses may find themselves having committed is the placing onto the market of food which was not safe.However, the other offences are equally important to the functioning of the preventative system established by the law.

Businesses are expected to be prepared for things to go wrong, and when necessary be able to help authorities trace food they have sold. As such, businesses are required to keep sufficient records to identify the people or businesses they have sold food to, and those they have bought it from.Failure to have a system in place that allows this information to be provided on demand is itself an offence.

However, the two recent high-profile examples have a significant contrast. While heavily branded products, such as those sold by Mars, are easily identifiable, and specific products can be traced by batch numbers, eggs which are cooked and placed into other products present an entirely different challenge, as they often cannot be identified in the same ways. That challenge is compounded when there is uncertainty about the scope of a problem, as demonstrated by the wildly differing estimates as to how many eggs had entered into circulation in the UK.

When things begin to go wrong, businesses are also expected to be proactive. If a food business operator has reason to believe they have been involved in distribution of unsafe food, they must act immediately by withdrawing food from the market, informing authorities and, where it may already be in the hands or mouths of the public, informing consumers not only that it is being withdrawn but also why; failure to take any of these steps may also be an offence.

If faced with a charge under the Regulations, it may be a defence to show that the offence has arisen despite all due diligence being undertaken. This will generally require the food business operator to show that another person was at fault, and that all checks that would beexpected to be completed, were in fact carried out. The law therefore provides a defence to those food suppliers,who can prove that they were complying, and that the system operated as it should.

The 2013 Regulations supplement, and allow the enforcement of, a number of pieces of EU legislation. While the government’s present plans for Brexit would not see any immediate changes to food safety regulation, there will be a need in the future to consider what changes may need to be introduced to account for the current role of the European Food Safety Authority, or whether an entirely new system of regulation is to be introduced.

Inevitably, and whatever the future of the regulatory rules, even the best-laid regulations often go awry. As the recent headlines have shown all too clearly, it will never be possible to guarantee that all food in the supermarkets is as safe as hoped, or is even free from chemicals which should never make it near a plate.

If a consumer contracts food poisoning (or is otherwise harmed by contaminated food), their most obvious recourse will be against their direct supplier, which will usually be the supermarket or restaurant from which they purchased the food, who will owe duties under the contract of sale.

In many cases, neither the buck nor the persons who might be held liable will stop there. The Consumer Protection Act 1987 (CPA) allows consumers to hold a range of people in the supply chain strictly liable for any harm caused by products which are not as safe as they should be.This equally applies to food, as well asany other product made available for purchase.

Actions under the CPA can be brought against food producers where their food is not safe, but also against any company which holds itself out as being the producer of such food (usually by putting their name or branding on the food). For food, or food products originating outside the European Union, the CPA also allows claims to be brought against the first importer into the EU.

The CPA’s relevance to the claim of the consumer who finds themselves injured will often be limited, given the availability of the action against his or her direct supplier. However, that supplier will be able to rely upon the notional liability of the producer or importer under the CPA to bring a claim for contribution or indemnity, thus laying the ultimate liability for the food’s lack of safety with its producer.

Producers are able to rely upon a number of defences under the CPA, circumscribed by section 4 of the Act. In the context of the food industry, the most important of these is tied up with the regulatory requirements regarding safety and record keeping. A producer can avoid liability if it can show that the food was not contaminated when the producer supplied it; even under the strict consumer safety regime, the law will not hold suppliers responsible for problems which have arisen only after their involvement with the product has come to an end.

However, the onus under the Act is clear: if the food was unsafe by the time it reached the consumer, then it is for the person against whom the action is brought to demonstrate that it was not unsafe when they supplied it. For suppliers, especially if there are a number of intermediaries between supplier and consumer, this can be an onerous burden to discharge even with meticulous records. But in their absence,it can be impossible.

Therefore, those operating in the food industry have a separate incentive to comply with the regulatory requirements imposed upon them. Accurate, detailed record keeping, combined with high and well-documented hygiene standards and awareness,may end up being the only way to avoid being required to pay out on claims, due to an inability to show that food contamination has arisen somewhere further down a supply chain.

Just as it is better to wash one’s hands before cooking, rather than apologising for making people unwell, food businesses are undoubtedly better served by taking stringent preventative measures to ensure that claims never arise. The law provides clear incentives for all involved in the food industry to take every actionto ensure that their food is safe for consumption, reinforced by the dual sanctions of criminal and civil liability. Lawyers advising businesses in the industry need to make sure that their clients are aware of the full range of their responsibilities, and the ways in which they should be protecting themselves.

Alistair Mackenzie

2 Temple Gardens

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