MEMORANDUM 18
Submitted by the Institute of Food Science
& Technology (UK)
The Institute of Food Science & Technology
(IFST) is the independent professional qualifying body for food
scientists and technologists. It is totally independent of government,
of industry and of any lobbying or special interest groups. Its
professional members are elected by their virtue of their academic
qualifications and their signed undertaking to comply with the
Institute's ethical Code of Conduct. All of our 3,000-plus members
are elected solely in their personal capacities and in no way
represent the organisations in which they are employed. They work
in a variety of areas, including universities and other centres
of higher education, research institutions, food and related industries,
consultancy, food law enforcement authorities and in government
departments and agencies. The nature and structure of the Institute
and the mixture of these backgrounds ensures the Institute's objectivity.
IFST's purposes are given in the attached appendix.
IFST through its Technical and Legislative Committee
has prepared replies to the MAFF/DoH Joint Food Safety and Standards
Group in response to their request for comments on the Draft Food
Standards Bill and the Proposals for a Levy Scheme. We are pleased
to enclose these two papers as our evidence to the Food Standards
Committee.
We have noted in our evidence that although
reference is made in Part 1: Introduction, Summary and consultation
document, to a requirement for the proposed Agency to produce
a Business Plan with specific performance targets there is no
reference to this requirement in the draft Bill.
In this regard the IFST would like to make the
point that although the first Guiding Principle is the protection
of public health in relation to food this is not new and has been
the principal requirement of all previous government and local
authority departments with responsibility for food, not to say
the entire food industry.
To restore public confidence we need to see
a clear and demonstrable improvement in food safety and in particular
the microbiological safety of food. To do this we believe there
are four fundamental issues, not necessarily in order of importance,
which need to be addressed, namely the development of:
1. A declared policy and plan with defined
objectives to control and improve the safety of food;
2. A well-founded and co-ordinated policy
for the funding and development of food and nutrition research;
3. An effective means of clear and unequivocal
communication of unbiased information to the public, particularly
in the issues of risk and new technologies;
— improve education of the public in
food safety and health nutrition;
— introduce changes in teacher training
colleges and schools to develop awareness and understanding of
issues affecting food safety and nutrition;
— encourage more positive attitudes
to food and nutrition science among school leavers.
Finally we have commented in our evidence that
public confidence will also depend upon the industry continually
meeting legislation requirements and being seen to operate to
high standards. We believe control through strong enforcement
is vital and in this regard we consider licensing (as opposed
to registration) of food premises essential to achieve improvement
in standards. We have elaborated on this subject in our evidence.
The IFST would be pleased to discuss any aspect
of our submission and to present oral evidence to the Committee
if required.
February 1999
APPENDIX
The purposes of IFST are:
1. to serve the public interest by furthering
the application of science and technology to all aspects of the
supply of safe, wholesome, nutritious and attractive food, nationally
and internationally;
2. to advance the standing of food science
and technology, both as a subject and as a profession;
3. to assist members in their career and
personal development within the profession;
4. to uphold professional standards of competence
and integrity.
DRAFT FOOD STANDARDS BILL
1. Where we do not comment on a Clause, it may
be assumed that we fully agree with it as stated.
Clause 1(2)
2. The phrase in brackets in lines 3-4 omits
a most important aspect of risks to consumers and we suggest that
it should be extended to read:
"(including risks caused by the way in which
it is produced or supplied or stored, prepared and used in the
home)"
3. This may be the appropriate point at which
to observe that nowhere in the draft Bill is there any reference
to a duty of the Agency to ensure that those responsible for food
premises producing or supplying food, and those importing food,
have the knowledge and competence to do so without risk to public
health. This important omission should be repaired, perhaps in
Clause 23(4)(b).
Clause 2(1)
4. As "the Agency is to operate in its
day-to-day business at arms length from Ministers" (Part
1, paragraph 20, page 7) and will have very considerable policy-making
responsibilities and implementation powers, not least the "power
to do anything" in Clause 22(1) the 10-14 non-elected
persons appointed as members will exercise very considerable power.
For this reason, and in the interests of openness and transparency,
the prospective appointments should be open to both Parliamentary
and public scrutiny, and, if need be, challenge, before being
confirmed.
Clause 2(2)
5. We welcome the inclusion of members with
"experience in matters relating to food safety" but
stress that these should include members with training in, and
demonstrated understanding and experience of, the science and
technology underlying food safety. Some of those who speak or
write with apparent authority on food safety, lack these attributes.
Clause 2(4) (and Explanatory Notes, page 15)
6. Regarding "financial or other interest
. . . likely to prejudice the exercise of his duties," the
example given in the Explanatory Notes on page 15 is "shares
in a major food manufacturer". Other examples that should
be recognised as of equal concern are membership of, or association
with, organisations expressing extreme views on food or some aspect
of it, or advocacy or authorship of strong views that could render
a person liable to be less than objective in dealing with food
matters for which the Agency will be responsible; and those who
lack a recognised qualification in food science, food technology
or nutrition who yet represent themselves as having professional
knowledge in these fields.
Clause 9
7. Here and in Clause 20 we consider
that the Agency's powers and duties should be made clear in relation
to international and EU negotiations for development of new food
standards.
Clause 10(1)(a)
8. After "safety" at the beginning
of line 3, we suggest adding "including nutrition".
Clause 10(1)(b)
9. We would like to see stated as a corollary
that the Agency has a function and duty of ensuring that its sources
of information are free from bias; of targeting sources of misinformation
and issuing corrective information; and of operating a complaints
machinery to deal with complaints against such misinformation.
In this connection, we consider that the Agency should be charged
to bring to the attention of the Department for Education and
Employment deficiencies in the education of teachers, children
and adults in food safety and nutrition.
Clause 14(6)
10. We suggest adding at the end of line 4 the
words "including funding of enforcement staff and resources".
Clause 18
11. Although the Annex "Draft Regulatory
Impact Assessment", Section 12(i), states that the
Agency "will produce an Annual Report and Business Plan and
will be expected to meet specified performance targets . . . "
we cannot find anywhere in the draft Bill itself a provision requiring
the Agency to prepare and publish an annual plan of work to be
accomplished in the ensuing year, thus enabling both Parliament
and the public to assess its performance against targets. An extended
Clause 18 would seem to be the appropriate place to repair
that omission.
Clause 18(2)
12. As worded, 18(2)(a) "consultation
with, or with representatives of, those affected" is often
interpreted in practice as "consumer bodies and trade bodies"
(with occasional inclusion of enforcement bodies), while "members
of the public" suggests individuals. There is no wording
which clearly refers to professional bodies. IFST, the professional
body of food scientists and technologists, would wish to be consulted
on all food safety matters within the Agency's purview and to
offer inputs where appropriate. There will be instances where
other professional bodies will wish to be able to make inputs
or specific topics. We would therefore ask for the insertion after
"those affected" of the words "and relevant professional
bodies".
Clause 19(2)(a)
13. We applaud this Clause, and its consistency
with the "Guiding Principle" of proportionate risk,
and also the recognition that risk assessment may, and usually
does, involve uncertainty.
Clause 22(1)
14. We have already referred to this in our
comment on Clause 2.1. As worded it appears to provide
unlimited, untrammelled power with no checks or balances to restrain
possibly precipitate and potentially harmful action. Perhaps an
introductory phrase such as "Subject to the agreement of
the appropriate authorities" would serve the purpose.
Clause 23
15. We have responded in a separate letter to
the consultation paper on Proposals for a Levy Scheme, and we
do not need to repeat all our comments here.
16. It would appear that, Clause 23(4)(b)
would permit Regulations to be made to impose requirements of
demonstrated competence on "persons carrying on businesses".
We would suggest that this be made explicit by inserting in Clause
23(4)(b) (line 40) between "impose" and "requirements"
insert the words "competence and other".
17. In conclusion, we reiterate our offer, made
on several occasions including in a letter dated 2 May 1997 from
our President to the Prime Minister, that the Institute is ready
to offer its collective expertise in advising on optimising the
structure and the food safety effectiveness of the new Agency.
18. Likewise we repeat out assurance, also given
on those occasions, that the individual members of the Institute,
whether working in industry, research establishments, University
departments or food law enforcement, will, in fulfilment of their
Code of Professional Conduct, continue to do all they can to ensure
food safety and the effectiveness of the relevant food legislation
and Codes of Practice.
FOOD STANDARDS AGENCY: PROPOSALS FOR A LEVY
SCHEME
1. IFST is the professional body of food scientists
and technologists and is itself unaffected by the financial consequences
of fund-raising in connection with the Food Standards Agency.
2. We are, therefore, able to comment with complete
objectivity and impartiality, taking account only of the overriding
need to promote food safety.
3. With food safety in mind, as a general comment
we regret that the scheme has been proposed solely in terms of
a money-raising exercise. We would far prefer to see the levy
applied also to food manufacturers and food importers, and linked
with a licence to operate that is subject to fulfilment of conditions
essential to food safety. We shall revert to this when responding
to Paragraph 11.
4. Please assume that where we do not make a
specific comment on a Paragraph we are in agreement with what
is proposed.
Paragraph 5
5. Paragraph 5 states "the one-off start-up
costs for the Agency should be recovered over a three-year period".
We assume that after the three-year period that part of the levy
proceeds would no longer be needed for start-up, and we consider
that it should then be allocated to local authorities for improved
inspection and advice, rather than swelling the money for on-going
Agency costs (as envisaged in Paragraph 14).
Paragraph 11
6. We regret that "the Government has no
plans for the comprehensive licensing of food premises" but
note that it "is prepared, as with the case of butchers,
to consider extending licensing to other individual sectors where
there are justified public health concerns."
7. We have consistently pointed out for many
years, and continue to consider, that comprehensive licensing,
with specific conditions attached to the granting and retention
of the licence, is essential to address very real public health
concerns. Indeed, the incidence of food poisoning would be at
a lower level than it is, and Wishaw might very well never have
happened if the then Government had acted on the recommendations
for comprehensive licensing by its own appointed Richmond Committee
and by IFST, and for specific licensing of butchers' shops also
by the Richmond Committee, in 1990. The Wishaw incident has triggered
specific action for butchers, but there could be serious major
outbreaks of food poisoning as a result of technical ignorance
or incompetence in other sectors concerned with manufacture, preparation,
distribution or sale of food. We emphasise that "stricter
enforcement of the Food Safety (General Food Hygiene) Regulations
and parallel Regulations"—sometimes propounded an alternative—is
not an adequate substitute for licensing with conditions.
8. To illustrate why we regard it as essential
to ensure that as a mandatory requirement to operate food premises
the proprietor or some other responsible person has demonstrated
food safety knowledge appropriate to the activities, we cite the
case of botulism in hazelnut yogurt in June 1989, the largest
recorded botulism outbreak in the UK, in which 27 people were
affected and one died.
9. Botulinum toxin was already present
in the hazelnut paste before it had been added to the yogurt.
How? A small manufacturer who manufactured canned fruit pulps
and sold them to relatively small yogurt manufacturers for incorporation
in fruit yogurts, decided to diversify into making canned hazelnut
paste, but used the same canning procedure and process conditions
as had proved successful with fruit pulps. There was no-one there
with the food safety knowledge that hazelnut paste would require
a far more stringent heat process than acid fruits. It would not
even have needed someone with sufficient specialist expertise
to design the required heat process, but at least someone with
sufficient food science knowledge to appreciate that a more stringent
heat process was required and to realise the need to seek the
advice of a specialist expert.
10. That sort of lack of relevant food safety
knowledge unfortunately obtains in many small and some medium
food manufacturers and in many food importers, as well as in most
small and medium caterers and retailers.
11. In this instance, however much enforcement
inspection had occurred, even up to the day before the decision
to diversify, they would not have found anything to be concerned
about and would not necessarily have found any departure from
satisfactory practices. Inspection after the event and prosecution
(as happened) would have been (and was) to have shut the stable
door after the botulism horse had bolted. The example is one which
cannot be satisfactorily guarded against by better enforcement
of existing Regulations, but, we would suggests, only by a specific
legal requirement for the proprietor of food manufacturing premises
(or some responsible person) to have demonstrated food safety
knowledge appropriate to the activities involved. This, we further
suggest, can only be achieved by licensing conditional (inter
alia) on that being the case. The other requirements to be
fulfilled would, of course, by hygienically satisfactory premises
and operations.
12. In a document dated 2 April 1998, provided
to JFSSG at that time, we gave detailed recommendations on how
such a licensing scheme could be structured (see Annex).
Paragraph 15
13. We are mystified by the sentence "Failure
to register premises or supplying false information will in future
be treated as a criminal offence". Surely that is already
the case under the Food Premises (Registration) Regulations 1991,
as amended.
Paragraph 16
14. As already indicated, we would prefer to
see the inclusion of food manufacturers and food importers, thereby
also ensuring "that home-produced and imported foods are
affected equally".
Paragraph 19
15. As street vendors of food are required to
register, it would appear that they would not be exempt from the
levy under Paragraph 19; and we do not object to that.
16. There is no mention of childminders regularly
providing food, either in Paragraph 19 or in Food Safety Act 1990:
Code of Practice No. 11, Appendix 2. In the absence of exemption
in the latter, presumably they ought to register. We understand
that generally speaking they do not, but are nevertheless known
to and inspected by local Environmental Health Departments as
a result of liaison with local Social Services Departments, though
we do not know whether that arrangement is the practice in all
local authorities. We have no strong views on whether such childminders
should be exempt from the levy, but their food provision arrangements
most certainly should be inspected.
Paragraph 21
17. We have no objection in principle to the
exemption from the levy of the premises referred to in this paragraph,
provided it is clear that the sort of diversification often seen
in newsagents, e.g., into selling sandwiches, would render them
liable to registration and to the levy.
18. In response to the invitation here to comment
on the scope of the scheme, we have already done so in our opening
general comment and in our comments on Paragraphs 11 and 16 above.
Paragraphs 24 and 25
19. It is our firm conviction that without improved
local resources "on the ground" to carry out food safety
inspection, help, advice and training much of the food safety
intention of the Agency will be frustrated. We remain of the opinion
that the bulk of the proceeds of the levy should be retained by
local authorities, and ring-fenced specifically for improved food
safety activities, with an undertaking by the Government that
it will not "give with one hand and take with the other"
by cutting other government subventions to local authorities.
ANNEX
LICENSING OF FOOD ESTABLISHMENTS
RECOMMENDATIONS OF
THE INSTITUTE
OF FOOD
SCIENCE AND
TECHNOLOGY
Note. This document represents an amplification
of the framework recommendations included as an Appendix to the
IFST response dated 10 February 1998 to the White Paper on the
Food Standards Agency.
FOOD SAFETY
PURPOSES OF
LICENSING OF
FOOD ESTABLISHMENTS
The two-fold food safety purposes of licensing
are:
1. To set licensing conditions, the fulfilment
of which will optimise food safety; and
2. To prevent the provision of food otherwise
than in fulfilment of those conditions by making it an offence
to operate without a licence or in contravention of the licence
conditions.
DEFINITIONS
"Food establishment" means any food
premises, and any commercial operation in relation to any food
or food contact material ("food premises", "commercial
operation", "contact material" and words or terms
used within their definitions, having the respective meanings
assigned to them in the Food Safety Act 1990).
Thus single site businesses, and each individual
site in a multi-site business, would require a licence, and licensing
would cover farms, food source transportation, manufacture of
food and food contact materials, food distribution, wholesaling,
retailing, catering, and importing of food sources or foods.
PRINCIPLE
Licensing of all food establishments,
with the licence dependent on:
— hygienically satisfactory premises,
equipment and operations; and
— demonstrated food safety knowledge
and competence, appropriate to the nature of the activity or activities
being carried out by the establishment, on the part of the proprietor
or the responsible person in the establishment.
HISTORY
Licensing already applies, piecemeal, in limited
types of food establishment (e.g., dairies meat cutting plants).
IFST has long argued for the licensing of all food establishments
under the above conditions. Licensing was, of course, one of the
recommendations of the Government-appointed Richmond Committee
on the Microbiological Safety of Food, in its two reports in 1990
and 1991. The recommendation was not accepted by the Government
of the day, on the grounds that it would be "unnecessary
and burdensome to business", and in that context "establishment"
particularly referred to "small businesses". More recently
licensing was recommended in the Pennington Report in respect
of the food establishments with which that Report was concerned.
RATIONALE
Food, dealt with by an establishment lacking
appropriate food safety knowledge or good hygiene, has the potential
to cause illness or death. We do not allow even a small delivery
business to operate with an unroadworthy van or a driver without
a driving licence. Why allow the potential equivalent (with equally
lethal potential consequences) in even a small food business?
If licensing under the proposed conditions means that some small
food businesses would not be permitted to operate, so be it—a
food establishment that is incapable of knowing what must be done
to provide its food safely, ought not to be in the food business.
In the event of a serious food poisoning outbreak, it would be
of little consolation to the bereaved of those who died, and to
those made seriously ill, to be told "Ah, but it was only
a small business".
ADMINISTRATION
The administration of such a scheme would not
have to be "invented" from scratch. Licensing in the
form of "approval" requirements already exists piecemeal
for dairy, fresh meat, meat-cutting and meat products establishments,
and indeed the provisions (including exemption and appeals procedures)
in the Dairy Products (Hygiene) Regulations 1995 could provide
a readily adaptable model for a general licensing procedure for
all food establishments. The Approval of Dairy Establishments
provisions do not explicitly require demonstrated food safety
knowledge and competence, but do explicitly require the proprietor
to carry out specified food safety tasks which could not be carried
our without such knowledge and competence. We would, however,
recommend that the requirement for demonstrated food safety knowledge
and competence by explicitly stated in general licensing regulations,
which we hope that the Government will introduce at an early date,
without waiting for the Food Standards Agency to come into existence.
In this connection we note the proposed Food Safety (General Food
Hygiene) (Butchers' Shops) Amendment Regulations 1998.
HYGIENIC PREMISES,
EQUIPMENT AND
OPERATIONS
The requirements would be those already required
by EHOs in relation to the Food Hygiene Regulations and related
Codes of Practice. For a licence to be granted they would have
to be up to the standard that satisfied the local enforcement
authority, and a licence could be revoked for serious failure
in these respects.
"DEMONSTRATED
FOOD SAFETY
KNOWLEDGE"
Criteria for "demonstrated food safety
knowledge and competence" would need to be defined, in relation
to different types of establishment, and to be appropriate to
each type.
In all cases, all relevant personnel working
in the establishment should have undergone basic food hygiene
training appropriate to the nature of the operations.
A food manufacturing establishment should
require appropriately qualified personnel with adequate technical
support staff, and even the smallest such establishment should
require at least one appropriately qualified person.
A non-manufacturing food establishment
with multiple sites should require appropriately qualified personnel
centrally, and, on each site, at least one responsible person
with a minimum of having undergone recognised food hygiene training
and gained a certificate at least at intermediate level, appropriate
to the nature of the operations.
A single site non-manufacturing food establishment
should require, as a very minimum, the proprietor or a responsible
person in the establishment having undergone training and gained
a certificate at least at intermediate level, in general food
hygiene including understanding of the basic principles of HACCP,
and in more specific hygiene/safety aspects of the foods handled
by the establishment. For small businesses, there might be a limited
period of grace after the introduction of Regulations, to allow
time for the acquisition of such training (see also transitional
period, below).
Importers. Substantial quantities of
foods and of food sources are obtained from overseas suppliers
who are not governed by UK legislation, but imported by specialist
importers or UK major wholesalers or retailers. It seems impracticable
to attempt a system of licensing of all overseas suppliers, and
that the practical solution is to build the appropriate licence
conditions into the importers' licences. There is precedent for
this approach in the "due diligence" provision for importers
in Section 21 3(b) of the Food Safety Act 1990 and also in the
responsibilities of importers in respect of imported organic foods.
The condition for importers should be that systems for assessing,
monitoring and auditing the food safety systems and performance
of their overseas suppliers are in place, and that the importer
has the appropriate number of appropriately qualified persons
capable of carrying out such evaluations of suppliers.
EXEMPTIONS?
Exemptions of the kinds provided under the Dairy
Establishments provisions, or others, could apply, but great care
needs to be taken in considering exemptions. During the period
of the passage of the Food Safety Bill through Parliament, the
then Minister of Agriculture, Fisheries and Food ridiculed the
licensing suggestion by rhetorically asking whether it was really
being suggested that the lady serving tea in her small tea-room
needed a licence and a PhD in food science. It was pointed out
to him that the lady could also be serving sandwiches and cream
cakes, and for these, while not needing a PhD, she certainly needed
food hygiene and safety know-how.
REVOCATION OF
LICENCES
Revocation of a licence could relate to a serious
hygiene/food safety offence, or to the conditions of the licence
no longer being fulfilled. There should be a need to reapply if
an only person in a establishment fulfilling the food safety knowledge
requirement left the establishment without an appropriate replacement,
or if the establishment wished to operate in a food sector not
previously involved. The draft provisions in the proposed Food
Safety (General Food Hygiene) (Butchers' Shops) Amendment Regulations
1998 could provide an appropriate model.
APPEALS
The Dairy Products (Hygiene) Regulations 1995,
Part IV provide a detailed model for procedures for appealing
against refusal of a licence or revocation of a licence. Alternatively,
the draft provisions in the proposed Food Safety (General Food
Hygiene) (Butchers' Shops) Amendment Regulations 1998 could provide
an appropriate model.
TRANSITIONAL PERIOD
There might be a suitable, but not indefinitely
extended, period of "grace" to accommodate the necessary
training (or employment of a trained person), in small establishments
where no-one was already trained.
TIMING AND
PHASING
There is clearly a problem for local enforcement
authorities of having simultaneously to assess applications and
issue licences for very large numbers of businesses. Perhaps a
suitable basis for phasing according to priorities exists in the
Inspection Rating System set out in Annex 1(i) of Code of Practice
No 9 under Section 40 of the Food Safety Act 1990. This rates
premises by their potential hazard based on type of food, method
of processing and number of consumers at risk. Using section 2
and 3 of Inspection Rating system, it would be simple to break
the range of scores into a number of bands to give an order of
priority for assessment and issuing of licences.
DRAFTING LEGISLATION
These principles would, of course, need to be
put into a suitable form by lawyers, although to the extent that
they refer to existing models and particularly to the draft provisions
in the proposed Food Safety (General Food Hygiene) (Butchers'
Shops) Amendment Regulations 1998, it may be presumed that the
latter have already had the attention of lawyers.
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