MEMORANDUM 10
Submitted by the Consumers' Association
EXECUTIVE SUMMARY
Consumers' Association broadly welcomes the
Agency proposed within the draft Bill. Our response focuses on
specific concerns that need to be addressed if the Agency is to
achieve its full potential and make a real improvement to food
safety and public health.
Composition of the Agency
— We consider it essential for the
Agency's success and credibility that the majority of its members
come for a public interest background (paragraph 10).
Guiding Principles
— The Guiding Principles should recognise
the need to promote as well as protect public health (paragraph
11).
— The Agency should consult with the
public when determining what the costs and benefits of certain
measures would be and should take into account the long-term costs
to public health. Clause 18 should require that the Agency avoids
"unnecessary regulation, rather than the current wording
of "over-regulation as it may be necessary to have quite
extensive legislation in some food related areas if there is a
threat to public health (for example, BSE controls) (paragraph
12).
— The importance of applying a precautionary
approach should be acknowledged in Clause 19 (paragraph 13).
— It is essential that the Agency's
decision-making processes are open, transparent and consultative.
The Agency should consult on its statement of general objectives
(Clause 18) before they are finalised (Paragraph 14).
The Agency's Staff
— The Agency should appoint the Chief
Executive from its inception as this position is so critical to
developing the independence of the Agency and its new culture
(paragraph 16).
— There should be further consultation
on the proposed structure of the Agency, its key positions and
working arrangements (paragraph 17).
Publication of advice
— The Agency should be required to
publish any advice or information unless it can justify specific
reasons of confidentiality why this cannot be done (paragraph
18).
Remit
— We consider the broad remit specified
within the Bill to be essential, which includes nutrition and
labelling responsibilities as well as food safety issues (paragraph
19).
Public consultation
— We consider it essential that the
Agency develops new, innovative methods for ensuring greater public
input into decision-making. There should be a full review of consumer
representation on the advisory committees and consideration of
the future of the Consumer Panel and how there can be more effective
consultation with consumers (paragraph 20).
On-farm responsibilities
— The Agency has to have powers to
take action on public health grounds from "plough to plate".
It will therefore be essential that the Agency has relevant in-house
expertise so that it can do this effectively (paragraph 21).
Research
— It is important that the Bill specifies
that research should be undertaken for public health or consumer
protection purposes only. This should also include consumer research
(paragraph 22).
Enforcement
— Good enforcement depends on adequate
resourcing and therefore local authority funding for food law
enforcement should be ring-fenced. Another important measure that
is necessary to make enforcement more effective is licensing of
food premises (paragraph 23).
International obligations
— It is important that directions from
the Secretary of State (Clause 20 (1)), with regard to international
obligations, do not compromise the Agency's public health and
consumer protection objectives. It will be important to be clear
and open about reasons why the Agency or a government department
is chosen to represent the UK in a particular circumstance (paragraph
26).
Veterinary medicines
— It is important that the Agency has
expertise in this area and that it is fully consulted when the
Veterinary Medicines Directorate (VMD) is formulating policy (paragraph
27).
— Much of the Agency's role in relation
to veterinary medicines will be established within a concordat
with the VMD rather than set out within the Bill. It is therefore
important that there is further consultation on these administrative
arrangements which will be so vital for ensuring that the Agency
has effective input (paragraph 28).
— It is important that the Agency does
have effective involvement in the Veterinary Products Committee's
(VPC's) secretariat. It should also be consulted on the membership
of the VPC (paragraph 29).
— As the working arrangements established
will be crucial to the success of the proposals relating to surveillance,
it is important that there is full public consultation on what
this will mean in practice. There should also be an independent
review of these arrangements two years after the Agency has been
established to ensure that they are working effectively (paragraph
30).
— We welcome Clause 27(3) and (4) which
will mean that Section 118 of the Medicines Act 1968 will not
apply to the Agency (paragraph 31).
Animal feedingstuffs
— We support the measure in Clause
28 enabling the Secretary of State (upon the advice of the Agency)
to make orders covering animals feedingstuffs (paragraph 32).
Pesticides
— It will be essential that the Agency
does have effective input into the work of the Advisory Committee
on Pesticides (ACP's) secretariat (paragraph 33).
— Consultation on the practical working
arrangements will be important to ensure that the proposed measures
go far enough. As for veterinary medicines surveillance, these
arrangements should be reviewed two years after the Agency has
been established to ensure that they are working effectively (paragraph
34).
— It is essential that there is public
consultation on the concordat between the Agency and the Pesticides
Safety Directorate (PSD) (paragraph 35).
Advisory committees
— The way that the advisory committees
function should be reviewed to ensure that they operate openly
and transparently, that consumer representatives are appointed
openly, and that their remits are appropriate. Any gaps currently
left should also be addressed, for example, if broader issues
are being missed (paragraph 36).
— It is important that there is further
consultation on the working and administrative arrangements for
these committees (paragraph 37).
Culture
— The appointment of the Agency members,
the Chief Executive and the Directors will be key to establishing
a consumer-focused approach (paragraph 38).
Levy
— While we do not object to some funding
of the Agency coming from a levy on industry, we do consider it
essential that the levy is spread fairly throughout the food industry
(paragraph 39).
— We also consider that an opportunity
to introduce conditional licensing of food premises has been missed.
This would have enabled food standards to be improved, while at
the same time raising additional revenue for the Agency (paragraph
40).
Concordats
— We would like to reinforce the importance
of consulting on the working arrangements of the Agency and its
relationship with other departments which will be established
within concordats (paragraph 41).
INTRODUCTION
1. Consumers' Association (CA), publisher of
Which?, Health Which? and other consumer magazines and
information, is an independent consumer organisation with over
750,000 members. CA first called for a food agency to be established
in 1990 in the wake of a series of food safety scares at the end
of the 1980s. Following the Bovine Spongiform Encephalopathy (BSE)
crisis, we published detailed proposals on how and why a food
agency should be established. Our policy report "A National
Food Agency" was published in 1997. We have since submitted
detailed comments on the Agency proposed within the White Paper.
ISSUES TO
BE ADDRESSED
2. Before considering the adequacy, effectiveness
and practicability of the proposals contained in the draft Food
Standards Bill, it is important to be clear why an Agency is needed
and what issues it is intended to address.
3. The BSE crisis heightened people's awareness
of the weaknesses of the current approach and in particular the
conflict of interest that exists within the Ministry of Agriculture,
Fisheries and Food (MAFF) which as responsibility both for industry
promotion and consumer protection. This has been compounded by
a lack of openness and transparency in the way that food issues
are handled. The basis for government decisions have not always
been obvious. A survey conducted by CA in April 1996[2]
showed that 71 per cent of respondents thought that the Government
had withheld information regarding the risks associated with BSE.
Concerns about decision-making behind closed doors were also reinforced
by a recent government commissioned MORI survey reported on 8
February 1999 which found that 94 per cent of respondents thought
that the Government should be more open about decision-making.
4. BSE has also highlighted the inadequacies
of the current approach to communicating with the public about
food risks. Uncertainties surrounding the science have not always
been acknowledged and there have been attempts to oversimplify
complex issues that cause consumer concern, and to give false
reassurances of safety. The MORI survey again highlighted the
way that the reverse has happened in practice, with 80 per cent
agreeing that when the Government is unsure of the facts, the
information that is available should be published. As a result,
consumers have lost trust in government advice. This has been
clearly demonstrated by two CA surveys.
The first survey was conducted in April 1996[3]
(Figure 1) and asked respondents to rate trust in various sources
of information about food safety on a scale of 1-10. This was
repeated in October 1998 more specifically in relation to BSE
advice[4]
(Figure 2). In both surveys government advice was rated below
advice from the food industry.
5. There has been a lack of co-ordination between
departments with some issues split between the Department of Health,
MAFF and possibly other departments such as the Department of
the Environment, Transport and the Regions. The result has been
fragmentation and a lack of a clear strategy.
6. There has also been a failure to acknowledge
the importance of a whole food chain approach which it could be
argued were at the heart of the BSE crisis, E coli 0157
outbreaks and the continuing rise in food poisoning reports. There
has also been a more general failure to appreciate the importance
of both a veterinary and public health perspective when improving
food safety. This has been quite clearly demonstrated by the failure
to address the growing problem of bacterial antibiotic-resistance.
7. In addition, there has been a failure to
ensure that consumer attitudes towards food issues are properly
represented and taken on board by decision-makers. Although consumer
representatives are now being appointed to the scientific advisory
committees, the way that this has been done has been ad hoc. Apart
from the MAFF Consumer Panel which has little influence on policy,
there are no other formal mechanisms for engaging with consumers
on a regular basis. The inadequacies of such an approach have
been highlighted by the poor record the Government has on risk
communication. Our research has found that people find the information
about food risks confusing and inconsistent. Consumer concerns
about developments in the food chain are not properly considered
as has been demonstrated by the handling of genetically modified
foods.
PROBLEMS
8. These issues relate to the problems with
the approach to food issues, but there are also concrete examples
of the problems with the way that food issues have been handled:
— reports of food poising bacteria
continue to rise, and more virulent strains such as E coli
0157 are now becoming more prominent;
— chronic diet-related diseases, such
as heart disease, cancer and stroke, are still the major killers
within the UK;
— food production is becoming far more
complex, but consumers are currently not given clear enough information
about the processes and ingredients used, and our research suggests
that they do not trust the claims made on foods.
Our following comments on the proposal within
the draft Bill need to be considered within this context.
GENERAL COMMENTS
9. We broadly welcome the Agency proposed within
the draft Bill and consider that with its emphasis on public health
and consumer interests, as well as a broad remit and powers to
take action throughout the food chain, it should be able to make
a real improvement to food safety and public health. We have set
out below specific concerns that need to be addressed if the Agency
is to achieve its full potential.
COMPOSITION OF
THE AGENCY
10. The composition of the Agency will be crucial
to its success and it is important that its members are appointed
openly, based on merit, according to Nolan principles and Peach
rules. Clause 2 of the Bill states that the Agency will consist
of between 10 and 14 members with a variety of skills and experience.
The White Paper specified that there should be "a majority
of whom come from a wider public interest background without any
specific affiliation." However this is no longer explicit
in the Bill. We consider it essential for the Agency's success
and credibility that the majority of its members come from a public
interest background.
GUIDING PRINCIPLES
11. The Guiding Principles should reflect the
need to promote as well as to protect public health,This should
therefore be acknowledged within Clause 1(2): " . . . and
otherwise to protect and promote the interests of consumers in
relation to food."
12. Guiding Principle 3 requires the Agency
to ensure that its decisions and actions are proportionate to
the risk; pay due regard to costs as well as benefits and avoid
over-regulation. It is important that the Agency consults with
the public when determining what the costs and benefits of certain
measures would be. It should also be required to take into account
the long-term costs to public health which at first may not seem
obvious. These points should be incorporated into Clause 19. Although
the summary of the Guiding Principles on page 5 of the document
states that the Agency will incorporate "avoidance of over-regulation"
within its statement of objectives to be prepared under Clause
18, we suggest that this is changed to "avoidance of unnecessary
regulation". It may be necessary to have quite extensive
legislation in some food-related areas if there is a threat to
public health. However, we do agree that over-regulation should
be avoided as this can be burdensome to industry and ultimately
the costs will be passed on to consumers.
13. The Guiding Principles fail to acknowledge
the importance of applying a precautionary approach. This should
be included within Clause 19. As we have experienced with the
BSE crisis and also in the case of genetically modified foods,
we do need to be more aware of the potential future consequences
of developments in the food chain, particularly where the results
may be irreversible. Inclusion of such a requirement within the
Bill would not be novel—it is already recognised within
environmental policy. With this in mind, we support the requirement
within Clause 19(2)(a) that the Agency must take into account
any uncertainty as to the adequacy or reliability of the available
information.
14. The Agency will have a crucial role providing
information to the public (Clause 10). However, it is essential
that this becomes a two-way, on-going dialogue that enables the
Agency to understand public attitudes and concerns. It is important
that the Agency works in an open and transparent way. Concern
about raising "unjustified alarm" should not result
in information being kept from the public. It is often the decision
to disclose information for fear of raising alarm that has in
the past caused even greater concern. As the recent government
poll cited above found, when there is uncertainty, the public
would prefer to be given the facts so that they can make their
own decisions. Clause 18 will be critical in relation to the above.
It is essential that the Agency's decision-making processes are
open, transparent and consultative. The statement of general objectives
will be an important aspect of this and it is therefore important
that the Agency consults on this document before it is finalised.
However, we are concerned about Clause 18(2)(a) which states that
the Agency will ensure that one of its objectives is to secure
that its activities are the subject of consultation "with,
or with representatives of, those affected and, where appropriate,
with members of the public." It is difficult to imagine a
situation where its activities would not be relevant to members
of the public as its objective is to protect their interests in
relation to food.
15. We very much welcome Clause 18(2)(c) which
requires the Agency to keep records of its decisions and the information
on which they are based and to make them available with a view
to enabling the public to make informed judgments about the way
in which it carries out its functions.
THE AGENCY'S
STAFF
16. Clause 3 of the Bill proposes that the first
Chief Executive of the Agency will be appointed by the appropriate
authorities rather than by the Agency. Thereafter appointments
will be made by the Agency. As the position of Chief Executive
is so critical for developing the independence of the Agency and
its new culture, we consider that the Agency should appoint the
Chief Executive from its inception.
17. The Agency's staff should be appointed on
merit, based on any relevant expertise and experience. The recruitment
process must be open and transparent as it will be an important
part of establishing the new Agency's culture. We suggest that
the Committee recommends that there is a further consultation
on the proposed structure of the Agency, its key positions and
its working arrangements.
PUBLICATION OF
ADVICE
18. Clause 11 allows the Agency to arrange for
advice or information to be published in such manner as it thinks
fit. It has to take into account any considerations of confidentiality
but can publish the information if it appears to be in the public
interest to do so. While we welcome this Clause, we consider that
it should be strengthened and the onus changed. If as the White
Paper envisaged, this is to be "a powerful guarantee of the
Agency's independence and will enable it to exercise considerable
influence", the Agency should be required to publish any
advice or information unless it can justify that there are specific
reasons of confidentiality why this cannot be done.
REMIT
19. It is essential if the Agency is to be effective
that it has a broad remit. We consider the remit specified within
the Bill to be appropriate, which includes nutrition and labelling
responsibilities as well as food safety issues.
PUBLIC CONSULTATION
20. Reference to how the Agency will consult
with the public is notably absent from the Bill, although this
will be essential if it is to effectively act in the public interest.
We have already raised concerns about the wording of Clause 18
(2)(a) in paragraph 14. We consider it essential that the Agency
develops new, innovative methods for ensuring greater public input
into decision-making. The consultation paper on proposals for
a levy scheme specify one of the Agency's new functions as: "an
enhanced high profile role in providing information to the public
in accordance with its guiding principles. This will include the
development of mechanisms for effective two-way exchange of information
with the public at large, consumer organisations, the food industry,
enforcement bodies, the media and others; and further research
into consumer opinion." But this is not included in the Bill.
We hope that the Committee will recommend that this is made explicit
within Clause 10 (provision of advice), Clause 12 (2)(b) (research)
and Clause 18 (statement of general objectives and practices).
This should include a full review of consumer representation on
the advisory committees and consideration of the future of the
Consumer Panel and how there can be more effective consultation
with consumers. Copies of two recent, relevant CA policy reports
"Consumer representation" and "Confronting risk—a
new approach to food safety" are included as Appendices II
and III respectively for the Committee's information. Both highlight
practical measures that can be taken to enhance public consultation
and consumer representation.
ON -FARM
RESPONSIBILITIES
21. Food safety problems can only be tackled
by ensuring greater co-ordination and more effective controls
throughout the food chain. The Agency therefore has to have powers
to take action on public health grounds from "plough to plate".
It will therefore be essential that the Agency has relevant in-house
expertise so that it can do this effectively. A requirement to
publish its advice to Ministers would also strengthen the Agency's
powers as the public would know when it had attempted to intervene
on an issue and whether its advice had been taken on board. The
Agency must also be prepared for any work in this area to be done
at short notice, for example, by ensuring that contracts have
been established with any relevant laboratories.
RESEARCH
22. Clause 12(2)(b) requires the Agency to carry
out, commission or support research on matters connected with
food safety and other interests of consumers in relation to food.
This will be an important function of the Agency and the resources
allocated should reflect this. It should take a strategic view
of research needs and ensure that the right research is done early
enough. if there is insufficient research available on which to
base its decisions, then it should undertake or commission such
research. it is important that the Bill specifies that this research
should be undertaken for public health or consumer protection
purposes only. This should also include consumer research.
ENFORCEMENT
23. It is important that the Agency can monitor
and set performance targets for local authority enforcement work,
as well as for the Meat Hygiene Service. Targets should be established
that can measure performance in a way that its meaningful and
reflects any improvement, or lack of improvement, in standards
relevant to consumers. It is important that there is a consistent
approach between the Agency and the Cabinet Office which is currently
reviewing performance indicators for local authority environmental
health and trading standards work. it will be essential, as these
standards or indicators will be an important measure of the Agency's
success, that there is a full consultation before they are established
within its objectives.
24. The Agency should also play an important
role in ensuring that research into detection methods to assist
enforcement officers in their work is undertaken. There have for
example been delays in developing detection methods for irradiated
foods and genetically modified foods.
25. Good enforcement depends on adequate resourcing.
We consider—as set out in our response to the White Paper—that
local authority funding for food law enforcement should be ring-fenced.
Another important measure that is necessary to make enforcement
more effective is licensing of food premises (see paragraph 39).
INTERNATIONAL OBLIGATIONS
26. It is important that the Agency with its
public health and consumer protection objectives represents the
UK within EU and international negotiations, including the Codex
Alimentarius Commission. However, it is also important that
directions from the Secretary of Stae (Clause 20(1)) do not compromise
the Agency's objectives. It will be important to be clear and
open about reasons why the Agency or a government department is
chose, to represent the UK in a particular circumstance.
VETERINARY MEDICINES
27. In our response to the White Paper we raised
concerns over the suggested role for the Agency in relation to
veterinary medicines. Recent issues, such as the problem of antibiotic
resistance and concerns about growth promoting hormones and Bovine
Somatotrophin (BST) demonstrate the public health and consumer
interest in veterinary medicines. It is therefore important that
the Agency has expertise in this area. It must be ensured that
this is available within the Veterinary Public Health Unit of
the Agency. The Agency should also be fully consulted on policy
by the Veterinary Medicines Directorate (VMD). It is unclear from
the Bill to what extent this is required. Although Clause 27(1)
requires that the Agency is consulted, it is not clear whether
this will go beyond the normal public consultation. The Agency
must be consulted from the outset when policy is first being formulated.
28. Much of the Agency's role in relation to
veterinary medicines will be established within a concordat with
the VMD rather than set out within the Bill. It is therefore important
that there is further consultation on these administrative arrangements
which will be so vital for ensuring that the Agency has effective
input.
29. Although it is proposed that the Agency
will be able to nominate a member of the Veterinary Products Committee
(VPC), we are concerned that this may not give the Agency sufficient
involvement. A recent meeting with the VMD and representatives
of the Joint Food Safety and Standards Group (JFSSG) suggested
that in practice the Agency would be part of the VPC's scientific
secretariat. It is important that the Agency does have effective
involvement in the VPC's secretariat. It should also be consulted
on the membership of the VPC.
30. We accept the proposed arrangements for
surveillance of veterinary residues where responsibility would
remain with the VMD, but arrangements would be put in place to
ensure that decisions about the priorities will be made more independently,
with input from the Agency. Although we initially suggested in
our response to the White Paper that the Agency should have responsibility
for surveillance, we consider that it could be in a stronger position
if it has input into the VMD's programme but also has the ability
to undertake its own surveillance. The working arrangements will
be crucial to the success of these proposals, and therefore it
is important that there is full public consultation on what this
will mean in practice. We also suggest that the Committee proposes
that there is an independent review of these arrangements two
years after the Agency has been established to ensure that they
are working effectively, that the Agency does have a powerful
input into this area, and that there is no conflict of interest
within the work of the VMD.
31. We welcome clause 27(3) and (4) which will
mean that Section 118 of the Medicines Act 1968 will not apply
to the Agency, and that this information may be disclosed by the
"Agency for the purpose of any of its functions if it
appears to the Agency to be in the public interest to do so".
ANIMAL FEEDINGSTUFFS
32. It is important that the Agency can take
a plough to plate approach to food safety and this can only be
achieved if the Agency has powers to act in relation to animal
feedingstuffs. We therefore support the measure in Clause 28 enabling
the Secretary of State (upon the advice of the Agency) to make
orders covering animal feedingstuffs. Clarification is needed
to ensure that this measure would enable the Agency to advise
on measures to control feed additives, such as antibiotic growth
promoters and growth promoting hormones. The Agency's involvement
with the new advisory committee on animal feedingstuffs is not
specified. However it will be important that it reports jointly
to the Agency and to MAFF and that the secretariat is shared between
the two.
PESTICIDES
33. We have similar concerns to those set out
above (veterinary medicines), for pesticides. Although the Agency
will be able to nominate a member to the Advisory Committee on
Pesticides (ACP) and will be consulted on policy issues, we are
concerned that it will still have limited involvement in this
important area for consumers. It will be essential that the Agency
does have effective input into the work of the ACP's secretariat.
34. We accept the proposal that surveillance
of pesticides residues should remain with the PSD provided that
the working arrangements enable the Agency to have an effective
input into the surveillance programme. As we explained in paragraph
30 in relation to veterinary medicines, the Agency may be in a
stronger position if it has input into the PSD's work, but also
has the ability to conduct its own surveillance into areas where
it considers there to be a public health issue. The Agency's ability
to do this at short notice will be an important factor. Consultation
on the practical working arrangements will be important to ensure
that the proposed measures go far enough. Again, as for veterinary
medicines surveillance, these arrangements should be reviewed
two years after the Agency has been established to ensure that
they are working effectively.
35. The working arrangements established in
a concordat will also establish the amount of influence the Agency
can have over pesticide policy in practice. It will therefore
be essential that there is public consultation on the concordat
between the Agency and the PSD.
ADVISORY COMMITTEES
36. The establishment of the Food Standards
Agency provides an ideal opportunity to review the current system
for providing scientific advice on food issues. The Bill does
not explicitly set out the future role of the advisory committees,
other than within Clause 19(2)(c) which requires the Agency to
take into account relevant information and advice given to it
by an advisory committee. The way that the advisory committees
function should be reviewed to ensure that they operate openly
and transparently, that consumer representatives are appointed
openly, and that their remits are appropriate. Any gaps currently
left should also be addressed, for example, if broader issues
are being missed. There should also be much greater openness about
the information considered by the advisory committees, any uncertainties,
and any assumptions that they have had to make. It should be clear
what other factors have influenced the final policy decision.
37. As the Bill does not set out the reporting
lines of the advisory committees, including which departments
will have responsibility for the secretariats, it is important
that there is further consultation on the working and administrative
arrangements for these committees.
CULTURE
38. The culture of the Agency will be essential
for its success, and in particular to ensure that staff transferring
from other departments develop a consumer-focused approach. The
appointment of the Agency members, the Chief Executive and the
Directors will be key to achieving this.
LEVY
39. While we do not object to some funding of
the Agency coming from a levy on industry, we do consider it essential
that the levy is spread fairly throughout the food industry. All
sectors have responsibility for food safety and therefore we do
not consider it appropriate for the levy to apply only to retailers
and caterers.
40. We also consider that an opportunity to
introduce conditional licensing of food premises has been missed.
This would have enabled food standards to be improved, while at
the same time raising additional revenue for the agency. Although
the consultation paper dismisses licensing (paragraph 11) stating
that: "the Government has no plans for the comprehensive
licensing of food premises but is prepared, as with the case of
butchers, to consider extending licensing to other individual
sectors where there are justified public health concerns."
This is not the right approach, we should not wait for a public
health problem to arise before taking action.
41. Finally, we would like to reinforce the
importance of consulting on the working arrangements of the Agency
and its relationship with other departments which will be established
within concordats. It is these arrangements, which are not specified
within the Bill, that will determine the extent of the involvement
and power the Agency will have in practice.
March 1999
2 A representative sample of 2,021 adults aged over
15 in Great Britain were interviewed in their homes 19-23 April
1996. Back
3
A representative sample of 2,021 adults aged over 15 in Great
Britain were interviewed in their homes 19-23 April 1996. Back
4
A representative sample of 996 adults aged over 15 and above were
were interviewed face to face in their homes 16-20 October 1998. Back
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