III AIMS OF THE AGENCY
Health promotion, nutrition and labelling
25. The main aim of the Agency as laid out in Clause
1, subsection (2), of the draft Bill is to protect the public
health "from risks which may arise in connection with the
consumption of food and otherwise to protect the interests of
consumers in relation to food." The Government intends that
the phrase "other interests of consumers in relation to food"
which occurs throughout the Bill (Clauses 9, 12, 18) will cover
food standards, in particular composition and labelling.[35]
Two key issues arose from the evidence we took in relation to
this phrase.
26. Firstly, with regard to the Agency's role in
relation to nutrition, the Government has not accepted in full
the James report recommendation that the Agency should have a
major role in developing policy on the nutritional quality of
diets and their impact on health.[36]
The White Paper made clear that the Agency will monitor, and provide
factual information on, the nutrient content of food and "provide
advice on the diet as a whole",[37]
but went little further than this. This has been carried forward
into the legislative proposals, and there was concern among some
witnesses that nutrition "is very much underplayed in the
draft Bill"[38]:
some called for the phrases "nutrition and diet" and
"food standards" to be specifically included in the
text of the Bill.[39]
27. Dr Mike Rayner of the British Heart Foundation
in evidence before us stressed the importance of nutrition on
the public's health. He pointed out that whereas "cases of
food poisoning [deaths per year] are in the hundreds or less than
hundreds" there are "around 30,000 premature deaths
from cardiovascular disease due to poor diet in this country"[40]
and there are roughly the same number again of deaths from cancer,
which can also be due—at least in part—to poor diet.
We agree that if the Agency is to protect the public's health,
it is vital that it has a remit in nutrition and dietary advice.
We believe that the Agency should be the body responsible for
setting the nutritional and dietary standards to be applied by
health departments and health promotion agencies.[41]
28. The Agency's role in health promotion was the
second area of concern which arose during questioning. The Government
is proposing that the Agency's role in nutrition is limited to
the provision of advice on the nutritional content of food and
on the components of a balanced diet. There was some dispute as
to whether this constituted health promotion. The Minister for
Public Health made clear that she saw the Agency's function as
being "principally health protection rather than health promotion".[42]
The health education bodies stated that the Agency's role in health
education was to provide them with a "reliable scientific
basis on which to proceed".[43]
They did not anticipate that its establishment would affect their
role and statutory position and were happy that there was a proliferation
of bodies with responsibility for health promotion. Professor
Tannahill, Chief Executive of the Health Education Board for Scotland,
commented:
"The promotion of health ... is something that
involves a wide, multi-agency, multi-sectoral effort. ... We are
all involved in the business of promoting the health of the public
and we all have parts to play."[44]
29. Although health promotion is not specifically
mentioned in the Bill it is intended that the Agency will provide
advice on nutrition, on the handling of food and on the safety
of food. As it is not possible to separate the promotion of healthy
diets from the promotion of other areas of a healthy lifestyle,
such as exercise, there is clearly an overlap with some of the
current health promotion responsibilities of the Department of
Health and of the health education bodies in particular. We
are concerned that the responsibility for an overall, consistent
food-related health promotion message is unclear. We also consider
that the impact in this area of the establishment of the Agency
does not appear to have been as well thought through as it should
have been. We recommend that the Government clarifies its intention
as to which bodies will be responsible and accountable for each
aspect of health promotion. We also recommend that more strategic
thinking is done on the impact that the Agency will have on the
various bodies which have responsibility for health promotion.
30. The draft Bill does clearly state that "other
interests of consumers in relation to food" includes the
Agency's remit with regard to labelling.[45]
The clear labelling of ingredients and of the nutritional value
of food is vital to enable the consumer to choose a healthy diet
and it goes hand in hand with dietary advice. Indeed we welcome
the Minister for Public Health's hope that "the Agency would
act to make the information about the nutrient content of food
more consumer friendly".[46]
However the current legislation governing labelling of course
emanates largely from the EU, and Mike Rayner expressed the opinion
of many when in evidence before us he stated that the EU Labelling
Directive "is now out-of-date" and "needs a lot
of work done on it to bring it into the 21st century".[47]
We will later touch upon the Agency's European and other international
remits and activities, but it should clearly be an important priority
for the Agency in its first few years to attempt to bring clarify
to the confused legislative situation vis à vis
labelling.
31. Much work is also being done on voluntary
codes of practice relating to the labelling of food. The National
Food Alliance, the Food and Drink Federation and the Local Authorities
Co-ordinating Body on Food and Trading Standards (LACOTS) are
for example taking forward a proposal for such a code with regard
to health claims on food.[48]
This is clearly something which the current Government should
be encouraging—if not instigating—and which must become
another priority for the Agency. Such
codes in the field of labelling will only become more important,
until the legislative framework is updated satisfactorily after
negotiations in Brussels, especially upon account of the increasing
use of health claims for food, the proliferation of functional
foods and the introduction of novel foods, such as those containing
GMOs, in the market.[49]
32. There is also a potential hole in the remit of
the Agency in this area. As Jeanette Longfield of the National
Food Alliance pointed out to us in evidence, "the word 'advertising'
[is not] mentioned in the draft Bill anywhere".[50]
It does not appear to be mentioned in the explanatory notes for
the Bill, the introduction to the draft Bill, nor indeed in the
White Paper. We would like the Government to explain what role
in food advertising the Agency will have. We recommend that the
role should be one of providing expert advice to the Advertising
Standards Authority and other relevant bodies.
Enforcement and monitoring
33. It is perhaps in the field of enforcement of
food law, particularly with regard to the monitoring of local
enforcement of food safety and standards legislation, that the
Agency—on a practical level—is most expected to make
a real difference. The James report made a number of recommendations
in this regard:[51]
that the Agency should be responsible for co-ordinating, monitoring
and enforcing local government enforcement activities, that it
should have statutory powers to require local authorities to carry
out certain work; and that it should also have reserve powers
to take enforcement action itself, as well as to direct enforcement
activities in certain areas. The response to these recommendations
was generally warm, and the Government set out in its White Paper
the way in which it would be taking these recommendations, and
some other matters, forward in its proposals for legislation.[52]
34. Clauses 14 and 15 of the draft Bill express the
central legislative aim of the Government in this area. Clause
14 empowers the Agency to monitor, set standards for and audit
the performance of enforcement authorities, while Clause 15 gives
the Agency specific powers to assist it in carrying out these
activities. The vast majority of memoranda received by the Government
and by us is broadly supportive of the content of these Clauses.
This support was particularly strong from enforcement authorities
themselves.[53]
A spokesman for the Chartered Institute of Environmental Health
said before the Committee that "the one thing..[they]..would
like to see come out of the... Agency is an increase in central
guidance, to equalise standards and to aid consistency of enforcement".[54]
A representative of the Institute of Trading Standards pointed
to the "lack of auditing or scrutiny by MAFF and the Department
of Health"[55]
in expectation that the Agency would introduce that necessary
element of audit to the enforcement process. Local authorities
and in particular its co-ordinating body, LACOTS, were a little
more reserved. The Local Government Association (LGA) representative
who gave evidence before us said that his organisation would "like
to see the ...Agency in terms of its surveillance, observation,
monitoring and auditing...as being very much a backstop".[56]
The LACOTS representative added that already "a great deal
has been done to promote consistency and advice",[57]
but that the Agency could obviously add to this and assist LACOTS
in its current work in this area.
35. There is inevitably a difference between how
practitioners in the fields of food safety and standards and those
who manage and fund their activities feel about the Agency and
its remit in enforcement. Local authorities are anxious lest the
powers proposed to be given to the Agency in the Bill are taken
as a sign of general local authority insufficiency in enforcement
work. Enforcement practitioners would welcome the proposed powers
more openly as giving them the guidance and consistency they have
often asked for and as drawing attention to the importance of
their work in food safety with the possibility of a consequent
increase in resources.[58]
We are impressed however at the way in which both sides in this
question are obviously keen to see the Agency work effectively
and in mutual co-operation with existing bodies.
36. There were however some caveats expressed in
evidence to us concerning these proposed powers of the Agency,
as well as a number of detailed suggestions as to where the Agency
most needs to look to assist it in encouraging high standards
of enforcement. These standards of enforcement to be issued by
the Agency should not be seen as over-prescriptive and should
take account of the diversity of the industry, and the disproportionate
burden on smaller businesses, without in any way compromising
those standards.[59]
Enforcement techniques can also vary from authority to authority
without those techniques and the standards they uphold not therefore
being uniformly high. Indeed the Agency will no doubt be strongly
advised by its advisory committees for Scotland, Wales and Northern
Ireland to uphold the principle of reasonable regional variation.
The LGA for example expressed to us a desire to "see the
maximum amount of partnership work...in trying to draw up agreed
standards".[60]
Certainly the Agency should view local authorities and their enforcement
teams as a valuable resource in assessing best practice and the
proper standards for enforcement.[61]
Many local authorities already manage their enforcement resources
well and deliver a very high quality enforcement service; it would
obviously be foolish for the Agency not to consider the experiences
of such authorities in drawing up such standards. The spokesmen
for the Chartered Institute of Environmental Health (CIEH) suggested
that it might even be helpful for local authority staff to be
seconded for short periods on to the staff of the Agency:[62]
this clearly seems a good idea. We consider this secondment would
benefit both local authority and Agency personnel alike, and recommend
the Government give some thought as to how such secondment might
operate.
37. The Association of Public Analysts expressed
some concern that the Agency in setting standards might consider
procedures to be a significantly more important matter for examination
than personnel when—in its opinion—the proper training
of enforcement staff is as vital to high quality enforcement as
the rigour of the procedures they follow.[63]
We recommend that the Agency should have a role in setting
standards for training. This point of personnel and training
was touched upon again in oral evidence in two other respects.
The LGA raised the issue of the differing approaches a local authority
could take to the use and therefore training of its environmental
health officers.[64]
Some authorities train all officers to a standard that will allow
them to cover the whole field of environmental health—which
of course goes much wider than food safety and standards to embrace
such issues as noise pollution—while others develop a more
specialised approach, which has the obvious merit of allowing
inspectors to have for example a better knowledge of food safety
requirements than would otherwise be the case. There is merit
in both systems: the approach taken by a local authority is often
dictated by resources and by the balance of environmental health
challenges within its area of operation. The Agency must obviously
take such differences into consideration.
38. Another anxiety of local authorities concerns
resources: this is a matter that we shall touch upon later when
dealing with the funding of the Agency and the proposals for the
levy. There has been some concern that higher standards across
the board, set by the Agency and enforced by it, will result in
extra costs which many local authorities will not be able to meet.[65]
The resultant failure might in fact lead to a driving down of
standards rather than a driving up.[66]
The extent to which local authorities might be able to benefit
from the levy in being able to retain a proportion of the sums
collected for enforcement activity will vary and must be fairly
calculated.[67]
The principle is obviously welcomed by local authorities and by
enforcement practitioners. One hope of the practitioners is that
the standards set by the Agency will be sufficiently clear and
carry sufficient authority to force the hand of local authorities
into putting extra resources into enforcement.
39. This leads to perhaps the ultimate power of the
Agency set out in the Bill—to remove food safety enforcement
from a local authority that has failed to meet the required standards.
As the Minister for Food Safety stated in evidence before us:
the "Agency has got the powers in this Bill to withdraw from
that local authority the power to carry out that function [of
enforcement]. It has got the power to say to another local authority:
'Would you like to subcontract and do the job for this authority
down the road that is not up to the job'".[68]
This "ultimate sanction"[69]
will obviously play its part in ensuring that local authorities
are sufficiently mindful of their requirement in this regard.
Local authorities are of course anxious that such powers are not
used lightly—that they are indeed seen as powers of "last
resort".[70]
Moreover there is some concern that this power is going to be
used by the Agency rather than by the appropriate minister upon
the advice of the Agency. As the LGA spokesman pointed out to
the Committee, "if a function is to be removed from a democratically
elected local authority...then it seems to...[be]...something
that the Minister obviously on advice ought to do directly".[71]
This power is of course something that the Secretary of State
can currently do under the Food Safety Act 1990: it is simply
transferred to the Agency under Part I of Schedule 2 to the draft
Bill. We recommend, however, that the final decision to invoke
this power should remain with the Secretary of State having received
advice from the Agency.
40. It will be the auditing and monitoring activity
of the Agency that will determine whether or not the ultimate
sanction described above has to be taken. As we have seen, Clauses
14 and 15 provide the context and specific powers for these activities.
The Agency will be able to request papers and records, enter and
inspect premises in connection with audit or monitoring activities.
The Agency will be able to issue guidance to particular authorities
specifying action that could be taken by an authority to improve
its enforcement performance, and may direct an authority to publish
information relating to that guidance and to notify the Agency
of action taken a result of that guidance. In practice, it is
expected that reasonable time will be given to local authorities
to respond to the results of any audit made known to it by the
Agency, before such directions are considered. [72]
41. The prime concern that local authorities have
with regard to this audit and monitoring activity is that the
targets against which such activities will take place—and
which will also inform the standards set by the Agency—shall
not be unreasonably high and will be appropriate to the aims of
both the Agency and enforcement authorities. The LGA expressed
a desire for a "basket of performance indicators" to
be taken into account "which measure different things in
different ways, so that you can get an overall aggregate feel
for the quality of the service"[73]
concerned. There is a general feeling that concentrating too much
on any given target will distort performance and indeed distort
the target.[74]
For example, it is possible that statutory notification of laboratory
results would make the apparent incidence of food poisoning higher
(fewer than one in a 100 cases of food poisoning are currently
notified). It is certainly clear that the indicators used should
not be only mechanistic, procedural ones—the number of inspections,
for example: neither should they be entirely related to the outputs,
to reported cases of food poisoning, as another example. It is
evident that only multi-disciplinary indicators, based on best
practice and developed by the Agency in conjunction with local
authorities, will be suitable for use by the Agency in monitoring
local authority enforcement sufficiently accurately to justify
some of the steps that it might have to take if an authority is
rightly singled out as repeatedly failing to meet the reasonable
standards set.
35 Draft legislation p.14. Back
36 Food
Standards Agency: an interim proposal by Professor Philip James,
30 April 1997-Part II, 5a. Back
37 WP
para 5.11. Back
38 Q.805. Back
39 Q.804;
Ev. (Vol. II) p.37, para. 5. Back
40 Q.214. Back
41 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 1. Back
42 Q.613. Back
43 Q.199. Back
44 Q.210. Back
45 Draft
legislation p.14. Back
46 Q.35. Back
47 Q.225. Back
48 Q.221. Back
49 Q.240-1. Back
50 Q.232. Back
51 Food
Standards Agency: an interim proposal by Professor Philip James,
30 April 1997-Part II, 5(l). Back
52 The
Food Standards Agency: a force for change,
Cm 3830, January 1998-paras 3.43-7. Back
53 See,
for example, the written memoranda submitted to the Committee
by the Local Government Association, by the Institute of Trading
Standards Administration, by the Association of Public Analysts
and by the Chartered Institute of Environmental Health. Back
54 Q.846. Back
55 ibid. Back
56 Q.848. Back
57 Q.846. Back
58 Q.863. Back
59 Q.859. Back
60 ibid. Back
61 ibid. Back
62 Q.849. Back
63 Q.847. Back
64 Q.856. Back
65 Q.863. Back
66 QQ.
865 and 899. Back
67 Q.868. Back
68 Q.49. Back
69 ibid. Back
70 Q.859. Back
71 ibid. Back
72 The
Food Standards Agency: consultation on draft legislation,
Cm 4249, January 1999-note on Clause 14. Back
73 Q.878. Back
74 ibid. Back
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