MEMORANDUM 22
Submitted by Paul Lenartowicz, Analytical
Services (South Wales)
EXECUTIVE SUMMARY
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. INTRODUCTION
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 AgencyA
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 legislationmeantime 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. COMMENTS ON
SPECIFIC CLAUSES
IN THE
DRAFT BILL
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. ANOMALIES BETWEEN
THE DRAFT
BILL AND
THE EXPLANATORY
NOTES
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. THE PUBLIC
ANALYST SERVICE
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 lawas
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. 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 supportedthough
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.
ANNEX 1
COMMENTS ON THE REVIEW OF PUBLIC ANALYST
ARRANGEMENTS IN ENGLAND AND WALES
1. INTRODUCTION
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. COMPETENCE AND
CAPABILITY
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. THE FUNDING
OF PUBLIC
ANALYSTS' WORK
3.1 Throughout the Report it is repeated time
and time again that one of main problems affecting the Public
Analyst Service todayand the root cause of present limitations
in the systemis 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 difficultyeven
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. SAMPLING OF
FOOD
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 auditedand
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. BENCHMARKING AND
COMPETITIVENESS OF
THE WORK
OF PUBLIC
ANALYSTS
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. WORKING TOGETHER
OF PUBLIC
ANALYSTS' LABORATORIES
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. OTHER ASPECTS
OF PUBLIC
ANALYSTS' WORK
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).
ANNEX 2
REPORT ON THE REVIEW OF PUBLIC ANALYST ARRANGEMENTS
IN ENGLAND AND WALES
EXECUTIVE SUMMARY
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).
FUNDING
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.
ANNEX 3
FOOD STANDARDS AGENCY: PROPOSED LEVY SCHEME
A response to the consultation paper on
this proposed scheme published alongside the draft Food Standards
Bill
EXECUTIVE SUMMARY
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.
CONTENTS
1. Introduction
2. Alternative Approach
3. Cost to the Consumer
4. Rate Applicable
5. Use of the Levy
1. INTRODUCTION
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 straightforwardin
reality it may well be that a much greater cost is incurred.
2. ALTERNATIVE APPROACH
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. COST TO
THE CONSUMER
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. RATE APPLICABLE
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. USE OF
THE LEVY
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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