Select Committee on Food Standards First Report


Submitted by Paul Lenartowicz, Analytical Services (South Wales)


  I. Whilst the draft Bill appears to create a framework within which the planned Food Standards Agency should be able to work to fulfil the aims described in the White Paper, there are many aspects of the Agency's function and operation which are left as operational decisions rather than legislative requirements, which if not made mandatory could dilute the intended effectiveness of the Agency. It is therefore recommended that all matters the Government wishes to see implemented should be included in the Bill (paragraph 1.2).

  II. Certain clauses require tightening or rewording to clarify or better focus their intent, and in one case to avoid clashing with other legislation. This paper recommends specific amendments to clarify Clauses 14, 15 and 18, and further recommends an addition to Clause 15 to allow for periodic report to be required from persons engaged in enforcement work (paragraphs 2.2 to 2.8).

  III. It is with concern that it is noted that the wording of the draft Bill does not always concur with the intended meaning described in the Explanatory Notes. This raises the prospect of interpretational challenges to legislation or even its failure to achieve what is intended. It is therefore strongly recommended that the wording of the Bill be clarified to reflect the intended meaning (paragraphs 3.1 to 3.5).

  IV. Since publication of the White Paper, the Government commissioned Review of the Public Analyst Service in England and Wales proposed therein has been completed and the Report published. No reference to matters arising from that Review have been addressed in the draft Bill and it is therefore recommended that the Bill be amended to rectify this (paragraphs 4.8 and 4.9). A brief explanatory note on the pivotal role Public Analysts play in relation to the safety of food is included (paragraphs 4.1 to 4.7) and a commentary on the Review Report is appended (Annex 1).

  V. The concept of enabling the use of a levy for enforcement funding is strongly supported (paragraph 5.1) and it is recommended that there be greater transparency of the funding of local authority enforcement departments, (paragraph 5.2) and it is further recommended that the funding of the Public Analyst Service should be routed directly to its intended destination (paragraph 5.3). The question of the raising of funds is addressed in a separate paper, appended as Annex 3).

March 1999


  1.1 When read with the Explanatory Notes published alongside the draft Bill, the general intent of the enabling legislation for the Food Standards Agency appears to create a framework within which the Agency should be able to work to fulfil the aims described in the White Paper published in January 1998 (Food Standards Agency—A Force for Change), but there is no compulsion for anything very much at all to happen.

  1.2 The detail which is absent from the draft Bill is presumably intended to be implemented in the future and is in some vague way hoped to satisfy the grandiose and laudable intentions declared in the White Paper. Whether those intentions will be achieved without embodiment in legislation is open to question, therefore it is recommended that all matters the Government wishes to see implemented should be included in the Bill.

  1.3 It is noted that the Review of the Public Analyst Service in England and Wales, and the Review of Scientific Services in Scotland, both of which were conducted as a result of the White Paper, were published in October 1998. It is disappointing that no specific recommendations have found their way into the current draft for legislation—meantime the Public Analyst profession continues to suffer from the lack of foresight and investment by some food authorities, to the extent that by the time the Agency is established there may be precious little in the way of scientific expertise left to serve the new (supposedly improved) system of food control.


2.1 Clause 14

  This clause is critical as it enables the Agency to ensure that proper enforcement is carried out. The principles enshrined in this clause are therefore strongly supported (subject to the comment in paragraph 2.2 below).

2.2 Clause 14 Subsection (2)

  As worded the phrase in parentheses appears to allow standards to be set for particular authorities only, whereas as the Explanatory Notes indicate the intent is for standards to be set for all authorities, whether or not separate standards are set for any individual authorities. It is recommended that suitable modification may be the removal of the word "whether" at the start of the phrase and inserting "whether or not also" in place of "or".

2.3 Clause 15

  Whilst this clause is a necessary part of the monitoring activity of the Agency, and may assist in making the whole process transparent, its wording would benefit from closer definition to ensure that the subject matter examined is restricted to that relevant to the Agency's business. It is therefore recommended that where relevant in the clause the phrase "which the Agency has reasonable cause to believe may be related to the enforcement of food law" or similar be inserted as appropriate.

2.4 Clause 15 Subsection (1)

  It is recommended that to this subsection should be added a third sub-clause:

    (c)  to provide the Agency with periodic summary reports detailing the work undertaken with respect to enforcement.

  The reason for this is that all parties involved in the enforcement process should be required to give periodic (e.g., quarterly) reports. The requirement for Public Analysts to do so disappeared with the Food Act 1984, with a consequential diminution of information about what was really going on in food enforcement.

2.5 Clause 15 Subsections (4) and (5)

  2.5.1 The power to take samples from laboratories potential clashes with Section 30 of the Food Safety Act 1990 in that the removal of a sample or part of a sample may prevent a Public Analyst, Food Analyst or Food Examiner carrying out his prescribed duties to analyse or examine the food and to produce the Certificate that he is required to give to the person who submitted the sample.

  2.5.2 It is therefore recommended that clause 15 be modified to prevent such a situation arising, for example by excluding the removal of samples from Official Laboratories prior to the Public Analyst or Food Examiner having completed his/her analysis or examination. It may be appropriate in such circumstances to allow for any further analysis or examination to be observed by the Agency.

2.6 Clause 15 Subsection (5)

  2.6.1 It is recommended that this subsection be modified by inserting a new sub-clause between (a) and (b), namely "any Official Laboratory", and the existing clause (b), then to become clause (c), modified by inserting between "any" and "Laboratory" the word "other".

  2.6.2 This revised wording is to distinguish between Official Laboratories (as notified to the European Commission under the EC Directive 93/99/EEC Additional Measures concerning the Official Control of Foodstuffs) where the premises are established in an official capacity with defined requirements in terms of accreditation, etc., and which are a formal part of the enforcement system, and other premises subject to no overall control.

2.7 Clause 18 Subsection (2)(b)

  It is recommended that in the opening phrase "any" should be replaced with "all" as the word "any" allows for one or even all to be excluded, whereas the promotion of links with all authorities named in the subsection should be mandatory.

2.8 Clause 18 Subsection (4), (5) and (6)

  This appears to allow approval of a statement modified by appropriate authorities against the wishes of the Agency provided the Agency is consulted. Is this what was intended? If not the wording should be revised to clarify the intent.


  3.1 It is of vital importance that the Bill says what it is intended to mean in a way that does not leave the resultant law open to alternative interpretation, and that if some meaning is intended now it must not be capable of easy reversal in the future without reference back to Parliament.

  3.2 As currently worded there are a number of anomalies where the meaning or intent as described in the Explanatory Notes does not accord with the wording of the draft Bill. Examples include the following:

3.3 Clause 6

  The Explanatory Notes say that the Agency may vary the terms of reference of existing advisory committees or wind them up if it chooses, yet the draft Bill merely empowers the Agency to establish advisory committees, conferring no power over existing standing committees.

3.4 Clause 15

  This clause empowers the Agency to require information to be provided and records to be made available, and to enter premises including laboratories to inspect them and take samples of anything found in them. Although the Explanatory Notes state that in respect of subsection (5) the monitoring powers would not impinge on any service provided by laboratories to private customers, the wording of the clause as drafted does not limit the powers of the Agency to information, records and samples which it has reasonable grounds to believe are related to the enforcement activity of an enforcement authority.

  3.5 These examples may not be the only instances where anomalies are present. It is most strongly recommended that the wording of the Bill be clarified to reflect the intended meanings and provide a watertight framework within which the Agency can work.


  4.1 Nothing in the Bill refers to the Public Analyst service, Public Analyst being the scientists currently placed at local authority level to provide the scientific assessment of food in respect of chemical composition and contamination (as opposed to bacteriological aspects of food, although some Public Analysts are also Food Examiners for this purpose).

  4.2 In debates about "Food Standards" against "Food Safety" the chemical aspects of food are often lumped under the heading "Food Standards" and thought of as consumer protection issues more concerned with fraud than anything else, which, whilst important, is far less so than safety. What is often forgotten is that the chemical analysis of food is fundamentally concerned with safety as well as consumer protection.

  4.3 Contaminants, such as pesticide residues, veterinary drug residues, dioxins, natural toxins (e.g., aflatoxins, potent cancer-causing agents frequently found in products such as nuts), heavy metal contamination (such as arsenic and lead), are all major aspects of the chemical analysis of food, as are checking for excessive levels of additives or the use of non-permitted additives, etc.

  4.4 Even labelling matters such as verifying that all ingredients are listed has a bearing on safety, for example in respect of individuals allergic (perhaps fatally so) to certain ingredients.

  4.5 It is too frequently overlooked that in respect of samples submitted to him it is the Public Analyst who decides whether or not a food is safe and complies with the law—as such he is the most crucial person in the system. Important though their roles are, all other enforcement officers are the facilitators of the process by taking samples for analysis and subsequently taking action on the Public Analyst's findings. The Public Analyst is thus far more than a mere analytical chemist or manager of an analytical laboratory, hence the reason for his statutory qualification (the Mastership in Chemical Analysis), which is the highest level qualification in applied analytical chemistry and is specifically geared to interpretation in the light of the law, providing an accreditation of the individual charged with this grave responsibility to complement the accreditation of the laboratory in which he works.

  4.6 Whatever their employment position, Public Analysts act as independent scientists in the system, concerned with the scientific truth relating to samples submitted for analysis. Recent changes in the ownership of some laboratories largely brought about as a result of reductions in local authority expenditure on testing of food may in some instances make it more difficult for the Public Analyst to retain his professional independence, which is a matter for concern. (Some privately owned laboratories which had previously been owned by the Public Analysts themselves have been sold to national or multinational corporations, and some local authority owned laboratories which had previously been operated as independent units at arms length from the enforcement service have been subsumed into enforcement departments).

  4.7 Another recent trend has been the tendency for some local authority enforcement departments to put the provision of Public Analyst services out to tender. Quite apart from the artificial limitations such a process creates, this practice forces Public Analysts into direct competition for existence, preventing the co-operation so essential for consistent enforcement, for proper development of enforcement science, for the pooling of expertise and knowledge and for the training of future Public Analysts. It also inevitably risks a diminution of the quality and effectiveness of the service provided as all effort becomes devoted to lowering prices rather than to the scientific evaluation of food. The result is short term gain in terms of price at a real cost measured in terms of compromised ability to protect the public in the long term. Unquestionably laboratories need to be competitive (which can be achieved through proper benchmarking), but not in competition.

  4.8 The Food Standards Bill should recognise the position of Public Analysts (and Food Examiners) in the system, preferably by requiring the Agency to approve the appointment of Public Analysts and giving the Agency the power to fund Public Analysts directly in a model perhaps not dissimilar to that currently applied to the Public Health Laboratory Service laboratories providing food examiner services, therefore it is recommended that the Bill be amended appropriately.

  4.9 Furthermore it is recommended that other matters relating to the Public Analyst service as raised by the recent Review should be addressed either within the Bill or alongside it in a visible fashion to ensure that matters do indeed progress.

  4.10 For reference Annex 1 to this paper provides a commentary on the Report on the Review of Public Analyst Arrangements in England and Wales published in October 1998 which was commissioned by the Government following the Food Standards Agency White Paper, and Annex 2 reproduces the executive summary of that Report, together with the section on funding.


  5.1 The draft Bill addresses the raising of funding for the Agency by enabling the imposition of a levy on food premises, proposals for which are made in a separate document (to which a separate response is made reproduced as Annex 3), and identifies that the funds raised may be used to meet the expenditure of enforcement authorities (in addition to the expenditure of the Agency). This broad scope of funding is most strongly supported—though the comments made separately on the proposals for a levy scheme must be taken into account.

  5.2 It is, however, recommended that the funding of local authority enforcement departments should be made more transparent than at present so that the expenditure on food enforcement can be readily evaluated, which could be achieved by channelling the necessary funding through the Agency, whether or not raised in whole or part by a levy.

  5.3 It is also recommended that the funding for major scientific facilities intimately involved in the enforcement service, such as the Public Analyst Service, should be routed directly to its intended destination in order to provide stability insulated from local political considerations and thus enable the maintenance of expertise and proper scientific development so necessary for long-term enforcement capability.




  1.1 Upon initiation of the review earlier this year the universal response from my colleague Public Analysts in other laboratories exactly matched my own sense of pleased expectation: as a profession for too long we have been struggling to maintain a service to protect the consumer against a backdrop of apparent disinterest, dwindling resources and attacks from those more interested in empire-building than safeguarding the food supply. The Report echoes and reinforces many of the issues we have all been advocating for some time, our voices being unheard or ignored.

  1.2 Overall the recommendations made by the Review Group are both constructive and welcome to those striving to provide an effective service for the protection of the public. In some areas, however, the recommendations do not appear to be sufficiently forceful to ensure that the problems of the past will be adequately resolved to ensure stability for the future.


  2.1 It was extremely gratifying to see that the Review Group recognised the competence and capability of Public Analysts in the system of food control in England and Wales, resulting in their recommendation for the retention of the present requirement to appoint Public Analysts, recommending full use of the Public Analyst's services by local authorities (Recommendations 1 and 2).

  2.2 It was also most gratifying to note that the Group's Report reinforced the requirement for the M Chem A qualification (even to the extent of recognising that its content and complexity places it at doctorate level, with the recommendation that it should be elevated to such), the qualification being the assurance that Public Analysts are competent to discharge their responsibility to protect the public. (Recommendations 20 and 21).


  3.1 Throughout the Report it is repeated time and time again that one of main problems affecting the Public Analyst Service today—and the root cause of present limitations in the system—is that it has been starved of the funding necessary to do its job.

  3.2 In its only direct recommendation on funding (recommendation No. 14), the Review Report merely said that if funding is to continue to be locally controlled it should be linked with a logical and transparent process for the determination of realistic sampling rates, together with the publication of the level of achievement of the objectives. Whilst I agree with this recommendation as worded, I seriously question the ability of locally-controlled funding to provide an effective Public Analyst service that is sustainable in the long-term. Indeed, I note from the introductory word "if" and the detail in the body of the report that the Review Group itself clearly had misgivings and wonder if that recommendation was made out of a preconceived notion that no change to the route of funding could be contemplated.

  3.3 Although there are undoubtedly exceptions in the case of some individual authorities, the overwhelming fact is that the local system of funding has failed to maintain the system, to the point where it is on the verge of total collapse. It is my most fervent request and recommendation that the question of funding must be revisited, and that only some form of central administration of funds ensure that it will work in all areas. For reference, the Association of Public Analysts (APA) has given this matter considerable thought and I am sure could elaborate further on possible mechanisms for this to be achieved, with no inherent complication arising from the mixed ownership of laboratories.

  3.4 I accept the point made in the body of the Report that it is not the function of local authorities to provide a living for Public Analysts, but if a living is not provided Public Analysts will not exist. We are officers of local authorities and as such have a duty to provide protection for the consumer to the best of our highly trained ability. If on the back of that we derive a living commensurate with our level of knowledge, skill, experience and responsibility then surely that is not unreasonable?

  3.5 The Report proposes that in the interests of efficiency and effectiveness Public Analysts' laboratories should work more closely together (recommendation Nos. 16 and 17)—indeed the implication appears to be that a common goal should be for there to be various groupings of laboratories, each effectively acting as a single multi-site entity, providing the advantages of local availability with the greater resources and specialisms of the whole. I suggest, however, that unless the directly dependent link between sampling and funding is broken with funding then to be based on the need to provide an effective scientific service this concept is unworkable except on the small scale.

  3.6 To take a simple example, suppose that within a grouping of laboratories one were to specialise in pesticide residues and the other in authenticity of fruit juice, with all laboratories passing appropriate work to the specialising laboratory and abandoning all capability in that area. Then suppose that one year there was to be a serious scare about pesticides in food, such that a substantial part of all local authority resources were to be concentrated on pesticide residue testing with no effort expended on fruit juice authenticity. In such circumstances the second laboratory could be in severe financial difficulty—even to the point of closure, with the loss from the system of the capability and experience of fruit juice adulteration testing, not to mention the human element. The pesticide specialist laboratory could become overloaded with work, but with more samples meaning more money the potential for a selfishness to creep in cannot be ignored, such that the laboratory resists passing elsewhere any of the other work it would normally do, merely expanding to cope or, worse, potentially allowing performance to suffer.

  3.7 If on the other hand the laboratories were to be funded centrally, for example with sufficient resources to do the range and type of work expected (not unlike the arrangement that currently exists for the Public Health Laboratory Service), the result would be one laboratory low in work but still existing and the other inundated and keen to pass other (non-specialist) work elsewhere. With contractual arrangements that could include benchmarking to ensure efficient working, coupled with suitable monitoring of laboratories' work (for example through the issue of quarterly reports on samples analysed), procedures can be put in place to cope with varied demand. Such procedures might require that should a laboratory's work fall below a certain level it must first enquire whether any other laboratory has a surfeit of work that could be passed on, failing which the underworked laboratory could embark on part of a nationally agreed programme of research and development using the contractual amount of staff time until such point as sample input returns to normal (if appropriate coupled to a review of specialisms between laboratories in the longer term).

  3.8 In a related vein, the Report recommended maximising the passing-on facility in the Food Safety Act, subcontracting work between laboratories (recommendation No. 3). However, for as long as the funding of Public Analysts' laboratories is based directly or indirectly on the work undertaken there will be a clear disincentive to pass on any work to other laboratories unless the original Public Analyst's laboratory is incapable of doing the work.

  3.9 I am strongly of the belief that communication is the key to effective working by all parties involved in food law enforcement, to the extent that the Public Analyst must be seen as part of the enforcement team working in harmony and partnership with the other professionals in the system, however physically remote from the authority he may be. For this reason I wholeheartedly welcome the suggestion of central support in overcoming the "struggle for organisational dominance" referred to in the body of the Report. With respect to funding, however, I would particularly observe that this co-operation and team-working is seriously undermined when the Public Analyst is regarded as an external "service provider" whose services can be summoned or jettisoned on a whim or by misguided attempts to cut costs and chop and change between different Public Analysts.

  3.10 I believe that the points I have raised above are strong evidence in support of a radical change being necessary in the funding of Public Analysts' work, which I suggest can best be achieved by central funding direct to the laboratories.


  4.1 The Review Report recommended that responsibility for the co-ordination of a national food sampling programme should lie with the Food Standards Agency, and that sampling rates should be logically derived (recommendations nos. 5 and 6), and also that enforcement policy should take into account density and type of food businesses (recommendation no. 13). I wholeheartedly concur with this suggested guidance and in fact I have in the past considered tentative ways in which a risk-based sampling scheme might replace the present ad hoc system. I would very much wish to be involved through the Association of Public Analysts in the detailed discussions that will clearly be necessary to enable this approach to be implemented in practice.

  4.2 Until such time as a practical and effective scheme can be developed I most strongly suggest that the previous guidance (2.5 samples per annum per 1000 population) should remain in place as although it is simplistic and arbitrary it is at least a target that is achievable and which can be audited—and with 20 per cent of all samples in recent years consistently having been found by Public Analysts to be unsatisfactory the present sampling level can scarcely be considered to be excessive. Reinforcement of existing sampling guidance (with sanctions against authorities that fail to perform adequately) is essential as otherwise the decline that has been seen in the recent past as some authorities have found that they can "get away with it" risks serious damage to the Public Analyst service to the extent that it may cease to be sustainable and will not be there to be developed and improved with the Food Standards Agency.

  4.3 The Report also recommended better use of scientific expertise in factory inspections (recommendation No. 7), which reinforces my own view, despite only very limited historical take-up by local authorities.

  4.4 In addition the Report recommended the establishment of a national database of sample information (recommendation No. 8). This is another recommendation that precisely voices the frustrations I have felt with the current system with the "copyright" of data owned by the authority paying for analysis (another reason for central funding, perhaps?), with at least logistically difficulty in extraction and sometimes denial of access.

  4.5 I believe that such a database would certainly assist not only with sampling programmes but also in interpretational aspects. (For example, the current non-statutory limit for fat in minced meat that is universally accepted by enforcement authorities and the trade was set by pooling data between Public Analysts to statistically determine a proper figure. In the absence of a properly co-ordinated national database the extraction of this type of data is difficult and laborious and is therefore rarely done.) One logical step in the implementation of this recommendation would be for all Public Analysts to submit quarterly reports bearing (possibly electronically) the necessary data. Assistance is likely to be needed to ensure that suitably compatible electronic records can be maintained by laboratories.

  4.6 A secondary benefit of such a database would be to reduce the current duplication of effort by MAFF's surveillance work in relation to topics that have already been thoroughly tested at enforcement level, which, when coupled with effective planning based on liaison with enforcement authorities, should show a significant saving of financial resources.

  4.7 I fully support three-part sampling which was a procedure recommended to be retained by the Review Report (recommendation 23) providing as it does protection for all interested parties and welcome the general comments made in relation to the Referee Analyst (recommendation 24), though there may be some argument for providing the Government Chemist with a Referee Committee to assist in situations where his laboratory may lack necessary skills and experience. I also suggest that clarification is needed regarding the status in law of the Referee Analyst's results, and also whether the extent of his work should be confined to scientific fact or to interpretational opinion.


  5.1 In common with my colleagues in other laboratories I fully support the concept of benchmarking (recommendation 15), and the proposition that the Food Standards Agency is the appropriate body to set the standards, as it presumably will with all other aspects of the enforcement system. It is my understanding that the Association of Public Analysts will willingly proffer its help to the Agency to facilitate its task.

  5.2 I particularly welcome the implication that through benchmarking it will be entirely possible to ensure that the service is efficient effective and cost-effective, thereby providing best value to the public. However, I don't feel that the Report is strong enough on the question of competition, appearing to confuse competition and competitiveness in the body of the Report and making no recommendation in this respect to clarify the position.

  5.3 Whilst I fully accept and agree with the need for individual laboratories to be competitive, which can be achieved through benchmarking, direct competition for work between individual Public Analysts is destructive to the essential requirement of co-operation between laboratories to ensure scientific and technical development, training, mutual understanding and the much-vaunted closer working together.

  5.4 I therefore strongly recommend that direct competition in relation to Public Analyst work be recognised as the antithesis of effectiveness and that it be discouraged in the strongest terms. This comment clearly also extends to tendering for Public Analyst appointments, which also suffer from the limitations of the tendering system in that the resultant service can only be as good as the design of the tender document itself.


  6.1 I concur with the arguments presented in the Report leading to the proposal that the best way forward for the Public Analyst Service without entailing excessive cost is for closer working between individual laboratories. Indeed, by own belief is that in effect various groupings of laboratories should work together so closely, with full transparency and fluidity in both technical and financial matters that in effect they act as a single multi-site laboratory with the advantages arising from local availability and contact and the benefits of greater overall resources and ability to specialise and to scale up certain aspects of work.

  6.2 For this to work effectively, however, the question of funding mentioned earlier in this response must be addressed. It is easy to see how multiple laboratories can work closely and pass samples freely between themselves when funded centrally. I cannot see how it can work when subjected to the vagaries of local funding arrangements, compounded by local sampling variations.

  6.3 Similarly it cannot possibly work if individual Public Analysts are put into direct competition with one another, as has been a tendency of late.

  6.4 The Association of Public Analysts has considered this approach to organisation in considerable detail, even to the extent of having made significant progress in developing a draft Business Plan. No doubt the APA will welcome the opportunity to develop this further in conjunction with the Food Standards Agency.


  7.1 In relation to the surveillance work currently undertaken by MAFF, the body of the Report notes that Public Analysts seldom put in bids for undertaking surveillance work, with the note that the Review Group tried to identify reasons for this. One significant reason apparently overlooked by the Review Group is that the work tends to be undertaken in large batches for extensive work to a tight timescale: to be able to commit to undertaking such work a laboratory has to have a substantial degree of spare capacity, which is something that is sadly lacking in Public Analysts' laboratories following years of financial neglect by local authorities. Another reason is that decisions on work required often appear to have been made by officials guided by availability of equipment, techniques or methods in use in Ministry laboratories, the specification being for example that a tendering laboratory must have prior experience in using the specific method stated: Public Analysts often have equivalent methods but frequently not identical, therefore they cannot claim to have past experience and so are ineligible to tender.

  7.2 The Report expresses doubts about screening laboratories operated outside the Public Analyst service, and in fact suggests that Public Analysts themselves could offer a screening service (recommendations nos. 10 & 11). In accepting the latter point I would stress that screening must be a supplement to proper analysis, used to improve focus of sampling, and not as a substitute (bearing in mind that "screening" work would not comply with the requirements of the EC Additional Measures Directive due to the inherently lesser quality of the methods and quality assurance that define screening work).

  7.3 The Report recommended that guidelines should be issued to clarify the position in relation to conflict of interest (recommendation No. 19). I welcome this proposal for the sake of all parties, not least because there appear to be many different opinions as to perceived or actual risk.

  7.4 The Report recommends that Public Analysts be subject to a compulsory requirement for continuing professional development (recommendation number 22). In fact the Association of Public Analysts has supported this concept and encourages Public Analysts to undertake continuing professional development, but does not have the "teeth" to make it compulsory. Public Analysts have generally been extremely diligent in ensuring that they maintain their competence, therefore would have no difficulty in complying with any compulsory requirement. In the interests of publicly demonstrating that this is indeed the case I support the requirement for it to be made compulsory, whether through the Royal Society of Chemistry or by Statutory Instrument.

  7.5 I concur with the recommendation regarding passing of agricultural samples outside the Public Analyst (Agricultural Analyst) system if particular analysis cannot be done within the official system, subject to similar controls as would apply to food (recommendation 26).




  The Group was set up in April 1998 "To review Public Analyst arrangements in England and Wales and to make recommendations on how best to provide the scientific and technical support needed by food authorities in respect of their food law enforcement responsibilities, taking account of the concerns of other interested parties, arrangements in other parts of the UK and EU considerations".

  The Group considered submissions from thirty-four organisations and individuals, visited various laboratories and took oral evidence from four organisations.

  It reached the preliminary conclusion that no major legislative changes are required but that some minor changes could be helpful and, as requested, submitted interim advice on this in July 1998 as at Annex 1.

  Having completed its considerations, the Group makes the following recommendations:

  1. The present legislative requirement for food authorities to appoint one or more public analysts should be retained (paragraph 33).

  2. Food authorities should consider whether they are making optimum use of scientific competencies available to them through their appointment of Public Analysts (paragraph 33).

  3. All stages of the evaluation and analysis of samples and interpretation of the results should continue to be under the control of the local authority's public analyst but some elements of the work could be sub-contracted by him to other laboratories, under the control of another Public Analyst, or food analyst as defined in the Food Safety Act 1990 (paragraph 33).

  4. Action should be taken centrally to improve levels of co-operation between the different parties in the food standards enforcement system (paragraph 33).

  5. The Food Standards Agency be given responsibility for the co-ordination of a national sampling programme (paragraph 43).

  6. A logically derived system for establishing appropriate sampling rates should be developed centrally in consultation with food authorities. This should be based upon planned premises inspection and sampling, complaint and other ad hoc local investigations and border control point inspections. It will require the following subordinate actions:

    (i)  the completion of the revision of Code of Practice No. 8, setting out the criteria for ranking food premises along the food chain in order of inspection priority;

    (ii)  the classification of the food and food materials producers in their areas by food authorities in accordance with these criteria and the preparation of a rolling inspection programme using this information;

    (iii)  the preparation of inspection guidelines indicating the likely sampling demands generated by each category of premises and perhaps based on the experience of authorities already running significant inspection programmes;

    (iv)  the development of a systematic approach to the assessment of the risks presented by different types of foodstuffs and associated materials;

    (v)  the development of systems for the arrangement and co-ordination of national programmes for the chemical analysis of foodstuffs and associated materials.

  (paragraph 46)

  7. Local authorities should investigate developing food safety and standards teams. Where the necessary skills and experience are outside the scope of enforcement officers, food specialists or Public Analysts should be involved (paragraph 48).

  8. As a matter of priority, information systems to support and utilise the output from all sampling programmes should be developed, operated and co-ordinated centrally to improve consumer protection across the UK. This would take the form of a national database which should be made available, free of charge, to food authorities and their Public Analysts to facilitate planning and follow-up action (paragraph 49).

  9. MAFF surveillance work should continue to be offered by open tender and information derived from this work should be included in the proposed national database (paragraph 51).

  10. Screening laboratories should be re-examined more closely by food authorities to ascertain whether they achieve genuine cost effectiveness with reliable sample documentation, accreditation and quality assurance of the methodology and a clear understanding of any analytical or legal uncertainties in the results (paragraph 53).

  11. Public Analysts should adopt a more positive approach to screening methods and consider whether they can offer a supplementary service in this area (paragraph 54).

  12. Guidelines should be prepared to ensure that specialist, but non-accredited, laboratories can be used when they offer the highest level of available expertise and to ensure that their results are equivalent, with respect to analytical quality, to results from laboratories which are formally accredited; assistance in developing such guidelines should be provided centrally (paragraph 55).

  13. The availability of resources in relation to the density and type of food businesses in the food authority's area should be taken fully into account when developing enforcement policy and performance criteria associated with national food law enforcement activities (paragraph 58).

  14. If funding is to continue to be locally controlled, it should be linked with a logical and transparent process for the determination of realistic sampling rates, together with the publication of the level of achievement of the objectives (paragraph 60).

  15. It should be a task for the Food Standards Agency to consider the application of benchmarking to the Public Analyst service, in consultation with relevant bodies, due account being taken of the other recommendations that we make (paragraph 63).

  16. Individual Public Analysts should explore the development of links between their laboratories on a regional basis (paragraph 68).

  17. The Food Standards Agency should have the role of helping to develop and oversee a rational and equitable framework for a rearrangement of Public Analyst laboratories (paragraph 68).

  18. Contractual arrangements should be drawn up between individual food authorities and Public Analysts; assistance should be provided centrally in developing model working arrangements (paragraph 69).

  19. Ministers should issue appropriate guidance to authorities and Public Analysts on the interpretation of the existing constraints on conflicts of interest and be empowered to regulate if necessary to prevent such conflicts arising (paragraph 76).

  20. The MChemA should remain as a prescribed qualification for Public Analysts and food analysts and the present provision whereby Ministers may prescribe or approve qualifications should also remain (paragraph 83).

  21. In relation to the MChemA, the RSC should consider:

    (i)  reviewing the scope of the qualification;

    (ii)  possible sources of bursaries;

    (iii)  awarding an interim qualification at an earlier stage and the elevation of the MChemA to doctorate level.

  (paragraphs 87 and 88)

  22. The APA and the RSC consider making continuing professional development a requirement for holders of the MChemA (and any successor qualification) (paragraph 89).

  23. Three-part sampling should be retained (paragraph 92).

  24. The referee analyst provisions should remain unaltered. Where referee analyses under the Food Act 1990 are carried out in the Laboratory of the Government Chemist, a food analyst should be directly involved (paragraph 95).

  25. The Food Standards Agency should be empowered to consider nominating a different Referee Analyst if the current arrangements with the Government Chemist (particularly the funding of the service by the Department of Trade and Industry) should change significantly (paragraph 95).

  26. The provisions relating to the handling of agricultural samples in the Agriculture Act 1970 should be aligned with current arrangements for food samples which allow for samples to be passed outside of the current Public Analyst system if the necessary technology exists elsewhere (paragraph 101).


  56. One of the most common responses from the consultation process was that the public analyst service has suffered, and is suffering, from progressive underfunding. In a sense this has been inevitable during a period when financial stringency has coincided with increasing pressures for expenditure in other areas. When authorities are judged by their performance against defined indicators then it will not be surprising if the funding of services with no specific performance indicators suffers. Having said that, it is no function of the food authorities to provide a living for Public Analysts but it is their function to provide consumer protection services. The need is to define more clearly the link between the two.

  57. It is understandable that local authorities should seek to stretch their funds as far as possible and to approach funding priorities in the light of competing local needs. However, it was a matter of concern to us to learn that the move towards unitary authorities seems to have resulted in an overall reduction in food enforcement work, including that involving the Public Analyst. We were surprised at the relatively small sums allocated to such work by some authorities, not necessarily the smaller sized authorities. It became evident to us that the funding of food law enforcement in respect of food standards work demands attention. We were informed of instances where, to ease resources and minimise costs, some authorities are collaborating on a regional basis in enforcement activities. It was observed by the LGA representative in his oral evidence that regional co-operation between local authorities was becoming a general trend reflecting government policy. We welcome this trend.

  58. The effectiveness of an authority in enforcing food law will be conditional on its availability of resources in relation to the density and type of food businesses in the authority's area. We attach importance to these aspects. They have a bearing on the utilisation of the Public Analyst service and the apportionment of the proposed national food sampling programme. We recommend that these issues are taken fully into account when developing enforcement policy and performance criteria associated with national food law enforcement activities.

  59. The main funding for Public Analysts comes from the analysis of enforcement-related samples and there were many calls for an increase in the rate of sampling. However, we have already pointed out that sampling is not an end in itself but must be linked to improved levels of consumer protection. We have also proposed a method for calculating an appropriate level of sampling for individual food authorities, based upon the number and types of food producing premises within the authority's area; the number of food standards complaints expected and an agreed share of national surveillance sampling programmes. If this, or some comparable mechanism, were validated and accepted, then achievement of the agreed scheduled sampling should both improve consumer protection and provide a more consistent flow of samples for analysis against which Public Analysts could plan, budget and schedule their work.

  60. Respondents to the consultation exercise commented widely on mechanisms for ensuring that funds for the analysis of samples were used for this purpose. Ring fencing was a popular option for many but was strongly opposed by local authorities who see the need for local control. Central funding was widely supported. Comparisons were drawn with the "free" examination of microbiological samples by the PHLS whereby local authorities take samples for testing and the cost of the testing up to a set level is borne by the Department of Health. However, if funding is to continue to be locally controlled, we recommend that it should be linked with a transparent process for the determination of realistic sampling rates, as described above, together with the publication of the level of achievement of the objectives. This will increase the pressure on food authorities to fund appropriate sampling levels. If sampling rates that optimise consumer protection can be defined, and if food authorities provide the resources to meet those rates, then the problem of funding public analysts will be resolved and Public Analysts arrangements stabilised. This proposal makes no prejudgment regarding the optimum sampling rates, except that they must be related to the protection of the consumer.



A response to the consultation paper on this proposed scheme published alongside the draft Food Standards Bill


  I. This paper recommends that the proposed flat-rate scheme should be abandoned, because it is grossly unfair and unworkable.

  II. An alternative scheme based on a simple percentage of turnover recommended, being a scheme that is both fair and workable, and more transparent to the general public.

  III. The extent of funding to be covered by the levy is discussed, and it is recommended that the opportunity should be taken to provide central funding for at least those parts of the enforcement service which require stability of funding to be capable of providing a proper service, and funding of the remainder of the enforcement service is also discussed.


  1. Introduction

  2. Alternative Approach

  3. Cost to the Consumer

  4. Rate Applicable

  5. Use of the Levy


  1.1 The proposed levy scheme based on a flat-rate charge to food retail premises seems grossly unfair as a small business with an annual turnover (not profit) of £100,000 per annum will face the same charge as a major supermarket outlet with an annual turnover of perhaps £10 million or more.

  1.2 The cost of collection if likely only to be as estimated where the procedure is straightforward—in reality it may well be that a much greater cost is incurred.


  2.1 In view of these points it is most strongly recommended that the flat-rate approach be abandoned to be replaced by a simple percentage levy.

  2.2 A percentage levy could be readily collected alongside normal tax collections, especially is based on declared turnover. This would simplify the collection process thus reducing the cost of collection.

  2.3 Similar exemptions to those presently proposed could apply, and there could be an overriding minimum flat-rate to cover the smallest business.

  2.4 The only difficulty would be for businesses where the turnover is not solely due to food, in which event a proportioning system would need to be devised, which would result in some complication, though the overall advantages would far outweigh this disadvantage.

  2.5 This alternative of a percentage levy as discussed further in the following sections of this paper is therefore recommended as the approach to adopt.


  3.1 The currently proposed flat-rate levy system will result in disproportionate costs to smaller businesses, which will be passed on to the consumer by way of increased prices, thereby increasing the differential between small businesses and their large competitors which in some instances may prove to be the "last straw" resulting in closure of the small business.

  3.2 The alternative scheme, whilst undoubtedly unpopular to larger retailers would be totally transparent as the consumer can be made aware of the percentage rate imposed, therefore any increase over and above that rate will be seen to be the profiteering it is.


  4.1 I do not have information upon which to assess the rate at which a percentage levy should be set. The following figures are therefore for example only:

  4.2 If the gross food retail turnover for the UK is, say, £50 billion then a percentage rate of 0.1 per cent or 0.1p in the pound, which will be all but unnoticeable to the average consumer, will raise a total of £50 million.

  4.3 A flat rate minimum charge of, say, £50 per annum would simplify collection of small sums.


  5.1 It is recommended that while a levy is being charged it would be far better to "go the whole hog" and collect enough for at least those parts of the enforcement service which by their nature need to have a stable form of funding in order to be able to provide the necessary facilities, namely the Official Laboratories which form the core of the enforcement service (Public Analyst Laboratories and Food Examination Laboratories) as well as the Agency itself.

  5.2 If this is done it may be worth considering further whether the remaining arms of the enforcement service should also be encompassed within the same funding approach, namely the sampling, inspection and legal services currently provided by Trading Standards and Environmental Health departments of local authorities. These would need to remain at local level to ensure that essential local knowledge is retained but would benefit from central funding in that the resources to undertake necessary food control would never suffer in competition with other local authority services.

  5.3 If this were to be done the food component of the current rate support grant would be added to an appropriate sum raised by levy on the food retail industry to derive the total resources necessary to provide an effective food enforcement system, including the Food Standards Agency as the controlling body.

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