FSA Consultation, 28 February 2011

ENFORCEMENT - The extension of remedial action notices to all food establishments (England)

A copy of the consultation document is available on this site. See: Extension of remedial action notices consultation

Currently, remedial action notices can only be used at establishments subject to approval under Regulation 853/2004. This consultation considers extending remedial action notices to all food businesses. Responses are requested by: 23 May 2011

Audience

Who will this consultation be of most interest to?

• Food businesses not subject to approval (e.g. some manufacturers, retailers, and farmers) and the competent authorities responsible for official controls in food businesses.

What is the subject of this consultation?

• The extension of remedial action notices to all food businesses.

What is the purpose of this consultation?

• To extend RANs to all food businesses. Currently, RANs can only be used at establishments subject to approval under Regulation 853/2004. Their extension to establishments not subject to approval will provide competent authorities with an enforcement tool that in certain circumstances is more appropriate and proportionate than the current tools for ensuring that food businesses take prompt corrective action, where it is in the public interest for them to do so.

Consultation details

In March 2009, Professor Hugh Pennington completed his Public Inquiry into the September 2005 outbreak of E.coli O157 in South Wales, which claimed the life of five-year-old Mason Jones and caused serious long-term health problems for others. In response to the inquiry's recommendations, the Agency set up the Food Hygiene Delivery Programme (FHDP). The FHDP was established to prioritise, direct and measure progress in an ambitious and comprehensive programme of work to improve food hygiene delivery and enforcement across the UK, covering all foodborne pathogens and all food groups. Through the FHDP, the Agency has committed to reviewing the adequacy of the existing legislation as it relates to the effectiveness of official controls delivery, set within the context of its wider strategy for compliance and enforcement.

Enforcement officers are provided with powers to ensure food business operator (FBO) compliance with the food hygiene regulations through the Food Hygiene (England) Regulations 2006. These powers include hygiene improvement notices (HINs), hygiene emergency prohibition notices (HEPNs) and detention notices. In establishments that are subject to approval under Regulation 853/2004 (generally slaughterhouses, cutting plants, and establishments processing or manufacturing products of any animal origin), the enforcement officer also has access to RANs. RANs require prompt corrective action to be taken, but without criminalising a business, needing the involvement of a magistrate, or indeed any court appearance. If a HEPN is used, the FBO may need to attend court.

There are circumstances in establishments not subject to approval where enforcement officers, businesses and consumers would benefit from the use of RANs. This occurs when there is a breach of the food hygiene legislation and action needs to be taken promptly to control an ongoing non-compliance but an 'imminent risk of injury' would be difficult to demonstrate. In these circumstances the existing enforcement tools may be inappropriate and/or overly bureaucratic. It is important that authorised officers have access to an appropriate and proportionate tool to ensure prompt corrective action where the FBO is reluctant to take action voluntarily.

Examples of where a RAN might be a more effective enforcement tool include:

• a lack of proper cook or chill temperature control, which may place consumers at risk
• cleaning issues – use of a HIN with delayed implementation may be inadequate in certain circumstances
• proportionate remedy for cross-contamination problems
• a lack of hot water supply
• pest infestation and drainage defect issues

A specific example of when a RAN might be used is where cleaning standards at a milk production holding are in clear breach of the hygiene legislation. The FBO is aware of the breaches but will not voluntarily take corrective action. The milk production holding does not require approval under Regulation 853/2004, so a RAN currently could not be used to require corrective action. The milk will subsequently be heat-treated, so 'imminent risk of injury' would normally be difficult to demonstrate and a HEPN therefore difficult to justify. However, as the hygiene standards are far lower than consumers would rightfully and reasonably expect, it would not be appropriate to allow the poor conditions to continue for the 14 days allowed by a HIN. In such circumstances where prompt corrective action by the FBO is possible a RAN would ensure such action is taken.

Proposals:

The preferred option is an extension of RANs to all food businesses. This option would require an amendment to the Food Hygiene (England) Regulations 2006 and the Food Law Code of Practice. The Agency would also develop guidance for authorised officers based on the high level principles set out in Annexe D.

In addition to extending RANs, two other options are being considered to ensure that we do not seek the extension of this regulatory enforcement provision without good reason. The first is the Agency takes no action. The second is that the Agency takes action short of legislating.

Under the second option (taking action short of legislation), we are considering the effect of new or revised guidance to businesses and enforcers about dealing with non-compliances where it is difficult to demonstrate 'imminent risk of injury' but where corrective action still needs to be taken promptly. There is already advice and guidance freely available, but a small number of businesses with non compliances remain reluctant to take corrective action voluntarily. At present, competent authorities in establishments not subject to approval seek to control these non-compliances with HINs or HEPNs, although neither is an ideal tool in these circumstances due to either the length of time required or the possibility of a court appearance and the need to demonstrate 'imminent risk of injury'. Therefore, option 2 would not lead to officers being able to take proportionate and appropriate action to secure compliance in circumstances where it is necessary; that is, where the business refuses to take voluntary action to correct the non-compliance. Neither option 1 (take no action) nor 2 (take action short of legislation) are preferred.

Further details of the existing enforcement powers, the rationale for the extension and costings of the options are provided in the attached impact assessment.

Key proposal(s):

• To extend RANs to all food businesses

Consultation Process:

Consultation questions:

1. The Food Standards Agency would be interested in whether you agree with the proposal to extend RANs to establishments not subject to approval. Please provide evidence to support your views where appropriate.
2. The Food Standards Agency has not identified any options short of legislation that would meet the policy objective. If you can identify any proposals short of legislation that would meet the policy objective, please let us know and provide evidence to support your views.
3. It is our assumption that there is a limited familiarisation cost for enforcement authorities associated with the proposed new regulations. We invite enforcement authorities to comment on our estimate of half an hour for familiarisation and a further hour for disseminating the information. If you disagree with this assessment, please provide evidence to support your views.
4. It is our assumption that there will be no costs to industry except for those businesses that do not comply with the hygiene legislation. We invite businesses to comment on this assessment. If you disagree, please provide evidence to support your views.

The Food Standards Agency would welcome any comments on this proposal, and in particular on the key questions set out above.

Responses:

Responses are required by close Monday 23 May 2011. Please state, in your response, whether you are responding as a private individual or on behalf of an organisation/company (including details of any stakeholders your organisation represents).