MEMORANDUM 14
Submitted by the Food and Drink Federation
GENERAL COMMENTS
ON THE
CONSULTATION ON
DRAFT LEGISLATION
The Food and Drink Federation is the principal
association representing the UK food and drink manufacturing industry.
Executive Summary
(i) FDF fully supports the Government's
decision to establish an Agency with food safety and standards
interests across the whole food chain and believes that the Agency's
focus must be on food safety. The openness and accountability
of the Agency are essential to its credibility and FDF welcomes
the requirement for a publicly-available statement of general
objectives and practices; the intention to incorporate the Guiding
Principles into legislation or reflect them in the statement;
and the required public availability of the information on which
the judgments of the Agency are based. The Agency should review
the openness of the decision making procedures of the advisory
committees. In taking account of the interests of members of the
Agency, necessary expertise must not be excluded. The same consideration
applies to the advisory committees. FDF emphasises the importance
of the Agency being responsible and accountable in the issuing
of information so as not to cause undue public concern.
(ii) Interfaces with other bodies and responsibilities
for the assessment of information and provision of public advice
must be made clear by appropriate, publicly-available, concordats.
There must be clearly established responsibilities, and a clearly
understood basis, for decisions on the confidentiality of information
before its publication, in order not to jeopardise the flow of
information between the industry, the Agency and enforcement authorities.
FDF urges that the opportunity be taken to move towards a unified
and centralised food law enforcement service, while retaining
delivery of enforcement at the local level, and that this be supported
by an adequately resourced Public Analyst service.
(iii) Regarding funding, FDF remains of the
view that, in principle, the work of the Agency, as a public body,
should be publicly funded. FDF welcomes, however, the Government's
intention not to discriminate against UK food producers in collecting
the proposed levy to meet the Agency's establishment costs.
REMIT
1. FDF fully supports the Government's decision
to establish an Agency to take a strategic view of food safety
and standards issues across the whole of the food chain and able
to make public its views on matters related to food and public
health. FDF attaches great importance to the success of the Agency
and believes that it has the greatest chance of being effective
if it is principally focused on food safety and protecting public
health.
2. In several places, the draft Bill adds to
the Agency's responsibility for food safety "other interests
of consumers in relation to food". FDF seeks clarification
of the intended scope of this expression. Reference to "food
safety, consumer protection and other health interests of consumers
in relation to food" would reflect the terms used in the
Food Safety Act and, whilst recognising the wider remit of the
Agency, would both reinforce the focus of its activities and clarify
that there are wider aspects of food supply, such as prices, which
are appropriately dealt with elsewhere. It would be consistent
with the statement, in paragraph 18 of Part I of the Consultation
Document, that the wording "must clearly be read in the context
of the Bill as a whole and does not expand the scope of the Agency
beyond that described in the White Paper".
3. In considering inclusion of "other important
objectives such as the need to take account of sustainable development"
(paragraph 20 of Introduction), food safety must always be the
main concern of the Agency.
OPENNESS AND
ACCOUNTABILITY
4. FDF welcomes the fact that the Guiding Principles
will either be incorporated into legislation or reflected in the
statement of general objectives and practices.
5. FDF welcomes the requirement to draw up a
publicly-available statement of general objectives and practices
and the need for the approval of the Secretary of State for Health
and the devolved authorities for the statement.
6. FDF welcomes the requirement of clause 18(2)(c)
regarding public availability of the information on which the
judgments of the Agency are based. Regarding the operation of
the advisory committees, whilst their outputs are publicly available,
FDF believes that there should always be appropriate opportunity
for industry input. The Agency should review the openness and
transparency of the decision-making procedures. There appears
to be no obligation regarding the timely publication of the advice
of the independent advisory committees. It is also noted that
the Agency is enabled (clause 11) but not committed to publish
advice given in accordance with clauses 9 and 10, including to
Ministers. Would this, however, be made available to an interested
party on specific request?
FUNDING
7. FDF welcomes the Government's intention,
in collecting a levy, not to discriminate against UK food producers.
FDF remains of the view, however, that in principle, the work
of the Agency, as a public body, should be publicly funded.
INTERFACES WITH
OTHER BODIES
8. FDF would encourage the Government to pursue
the envisaged underpinning of the relationships between the Agency
and other departments, and with the devolved authorities, by a
series of administrative concordats and welcomes the intention
that they be made publicly available, in the interest of transparency
and clarity of operation. As the distribution of responsibilities
between departments and the Agency will have a direct impact upon
parts of the food chain, there should be opportunity for interested
parties to make input when the cocordats are being developed.
It is essential that there be a seamless management of food safety
in the public interest. FDF is concerned that responsibilities
for the assessment of scientific information and the communication
of public advice should be clearly and openly established.
9. Regarding pesticides and veterinary medicines,
FDF welcomes the right of the Agency to nominate a member of the
Advisory Committee on Pesticides and Veterinary Products Committee
to ensure that their work is being positively monitored for issues
of food safety.
10. FDF notes the references to "provision
of readily intelligible, scientifically-based information about
the nutritional content of foods and impartial and accurate advice
on a balanced diet", in paragraph 23 of Part I of the Consultation
Document. Given that there will be several departments and agencies
which could both assess scientific information and communicate
nutrition advice, FDF believes that clarification of lead roles
is an appropriate and important issue for the intended administrative
concordats.
11. It should be made clear by what means the
Agency will embrace the food safety and environmental effects
of GM crops and foods derived from them, currently dealt with
by the ACNFP, which will have formal links with the Agency, and
ACRE which will not. It might be appropriate for this to be the
subject of a concordat.
12. The concept of an overarching body to deal
with issues relating to modern biotechnology, and specifically
genetic modification, has recently been under consideration as
a result of criticisms that the current advisory committee structure
leaves a number of gaps, particularly in respect of environmental
issues. FDF supports a more holistic approach to modern biotechnology
and genetic modification, which should be addressed in its broadest
context, e.g., to include medical and pharmaceutical uses. FDF's
response to the Government review of the Framework for overseeing
Developments in Biotechnology welcomed the establishment of the
new Ministerial Group on Biotechnology and Genetic Modification
as ideally placed to conduct a review into the strengths and weaknesses
of the existing systems by bringing together the various government
departments concerned. Clearly the FSA, with its responsibilities
for the safety of food produced from modern biotecnology, must
be linked into any system dealing generally with genetic modification.
13. FDF would favour the establishment of a
forum to co-ordinate scientific advice from specialist committees,
thus ensuring that Ministers are comprehensively advised. Such
a forum should consist of the Chairmen of the existing advisory
committees with GM responsibilities and any additional expert
representation deemed appropriate to the task.
INTERESTS OF
MEMBERS
14. FDF is most concerned at the continuing
tendency to exclude from discussions those members likely to have
the most relevant knowledge and practical expertise.
15. There is a growing perception that any individual
with direct or indirect commercial interests, such as industrial
employment or ownership of shares in relevant companies, should
automatically be barred from membership of the Agency or its Advisory
Committees because of conflicts of interests and the risk of actual
or perceived bias. FDF categorically rejects such a notion. In
the case of food-related issues, much expertise resides within
the industry itself. FDF believes that the mechanisms for declaration
of interests and ensuring the confidentiality of commercially
sensitive data are robust and any suggestions that industrial
employment or connections should automatically disqualify otherwise
very appropriate candidates should be firmly rejected.
CONFIDENTIALITY AND
REPORTING
16. In commenting on the White Paper, FDF proposed
that direct reference to confidentiality of information should
be part of the Guiding Principles. The draft Bill requires that
the Agency must take account of confidentiality considerations,
except where there is an overriding public interest in publication.
Whilst recognising that the detail is subject to amendment in
the light of a Freedom of Information Act, FDF believes that clear
understanding is needed of what constitutes "an overriding
public interest" and who would be responsible for deciding
that the definition applies in any particular case. There should
be clear guidance to aid the Agency in determining what information
is confidential and not, therefore, to be put in the public domain.
FDF suggests that it should be the members of the Agency who decide
on whether or not to publish information, on the basis provided
in clause 11(2), taking full account of the specific concerns
of industry.
17. For industry to participate fully and effectively
it must feel that confidential information will be protected,
be it financially, scientifically or commercially sensitive. FDF
believes that persons authorised by the Agency to carry out enforcement
duties should be under the same legal constraints regarding confidential
information as are authorised officers under Section 32(7) of
the Food Safety Act 1990. In addition, the responsibility of those
authorised by the Agency for enforcement purposes in respecting
the confidentiality of information should be elaborated in the
statement of general objectives and practices.
18. Whilst the Notes on clauses explain that
information gained in the course of the Agency's observations
could not subsequently be used in evidence in criminal or civil
proceedings against the food business involved, this is not clear
from the draft Bill itself.
POWERS OF
AGENCY PERSONNEL
19. FDF is strongly concerned that the draft
Bill gives to the Agency a range of enforcement-type powers without
the controls and constraints which are placed upon authorised
officers of food authorities by the Food Safety Act.
ENFORCEMENT
20. FDF is participating in the consultations
on the future structure of UK food law enforcement which are running
in parallel with consultation on the Draft Bill. The envisaged
role of the Agency in monitoring food law enforcement by local
authorities, and seeking to ensure a more consistent application
of the law, is most welcome. FDF hopes that, as a result of the
parallel consultations, the opportunity will be taken to move
towards a unified and centralised food law enforcement service,
while retaining delivery of enforcement at the local level. Whatever
the future structure of enforcement, FDF recommends, as a minimum,
the concentration of local authority food law enforcement expertise
in officers capable of enforcing both food safety and food standards
issues. This would be a significant step towards ensuring the
expertise of enforcement officers in relevant areas of food technology
and further enhancing confidence in the enforcement system. It
would also provide the opportunity further to develop skills where
needed in proactive, preventive food safety management in line
with the principles of HACCP.
21. The Agency should consider the use of IT
to facilitate contact with and between local authority enforcement
officers. Consideration should also be given to requiring the
Agency to initiate and fund research in support of enforcement
activities and to support provision for the continuing professional
development of enforcement officers and Public Analysts.
22. FDF strongly supports the Home Authority
Principle and is concerned that some aspects of the Agency's authority
to publish information on commercial operations held by a local
authority (clause 14 (4)) could jeopardise the willingness of
companies to provide information to the Home Authority. This could
thus weaken the operation of an important administrative arrangement
which serves the interests of efficient and effective and consistent
enforcement.
CO -ORDINATION
OF SURVEILLANCE
AND ADEQUACY
OF THE PUBLIC
ANALYST SERVICE
23. The establishment of the Agency provides
an opportunity for the co-ordination of all UK surveillance activities,
including the results obtained from Public Analyst surveys, in
order to place all results in the fullest possible context and
to enable identification of national priorities for further investigation.
(Paragraphs 25 and 26).
24. FDF welcomes the recognition of the reports
of reviews of the Public Analyst Service in England and Wales
and the food-related Scientific Services in Scotland (Paragraph
30). Account will no doubt be taken of the current review of Public
Analyst arrangements in Northern Ireland. FDF strongly supports
the recommendations of the Review Group in respect of Public Analyst
arrangements in England and Wales, and similarly that in respect
of Scotland, believing that an adequately co-ordinated and resourced
Public Analyst Service, used by all food authorities, is an essential
complement to an effective system of UK food law enforcement.
The establishment of the Agency provides an opportunity to ensure
national co-ordination of the Public Analyst Service and the availability
of access to advanced analytical facilities and expertise.
RISK ASSESSMENT,
COMMUNICATION AND
EDUCATION
25. In assessing all scientific evidence, there
should be an obligation on the Agency that: all relevant evidence
be examined; the evidence be assessed systematically; different
forms of evidence be discriminated between on grounds of quality;
the grounds for opinion be made publicly available; and subjects
be re-assessed regularly as appropriate.
26. As recognised in Guiding Principle No. 5,
the Agency must be responsible to issue information in such a
way that it would not cause undue public concern, whether this
be due to its imbalance, incompleteness, lack of supporting advice
or any other factor. For example, the communication of general
nutrition advice needs to be given careful consideration to avoid
its mis-application by individuals. Part I of the Consultation
Document suggests that Clause 19 of the draft Bill is relevant
to the requirement to avoid raising unjustified alarm. It must
be ensured that this is so. Given the importance of this issue,
it would be appropriate to set out the requirements in the statement
of general objectives and practices provided for in Clause 18.
27. FDF believes that an important part of improving
consumer safety in respect of food is appropriate education in
food choice and handling. It is hoped that the Agency will play
a part in this, including promotion of food safety and preparation
as part of the National Curriculum. FDF recommends that the Agency
develop a concordat with the DfEE to this end.
DEVOLUTION
28. It is recognised that the practical implications
of devolution have yet to be fully evaluated. It is essential,
however, to ensure that devolved powers do not give rise to differing
legal requirements in respect of food safety in different parts
of the UK. Food safety problems do not respect territorial boundaries
and the food and drink manufacturing industry, members of which
make products for distribution throughout the UK, must be able
to operate to a consistent set of requirements.
CLARITY OF
LEGISLATION
29. Once the Food Standards Act is adopted,
a consolidated Food Safety Act should be published, incorporating
the numerous consequential amendments and thus facilitating a
clear understanding of the legal requirements.
March 1999
| 
