Select Committee on Food Standards Minutes of Evidence


Examination of Witnesses (Questions 260 - 279)

MONDAY 8 MARCH 1999

PROFESSOR PHILIP JAMES and MS KAREN MCCOLL

Audrey Wise

  260.  Following on this train of thought, Professor James, you mentioned that the interests of ministers in different departments may well be widely different and their evaluation of the importance of this topic is likely to be quite various one from another. Do you think that the fact that the Agency's advice to ministers will be public or can be public, and I hope should be public, may bring pressure on those ministers to show more interest than they might if they were allowed to be nice and quiet in the background?
  (Professor James)  That would certainly be my hope and that is why we were very anxious as we thought through this and went through these arguments. It seemed to me that the only way that one could have very substantial influence was to specify that the Agency not only had the right but would be expected to publish its views and its approach. That is actually quite an important pressure provided the Agency establishes a first class reputation for, as it were, being effective in achieving other things even if it happens to be failing in this selected area at the time.

  261.  Do you think that this matter of openness might get tripped up on issues of commercial confidentiality?
  (Professor James)  In my response to the White Paper I indicated that I thought the issue of commercial confidentiality was enormously important. Being on a host of committees I know that sometimes the commercial groups are exquisitely sensitive about this gorgeous new piece of commercial evidence that nobody else must know. The bizarre thing, of course, is when you go from one company to another they tell you what you have just heard at the previous meeting is top secret in the first company and they know all about it. The number of times I have been through that process is extraordinary. I think we have got to be rather careful. We have to be sensitive in relation to commercial confidentiality but in our original response to the White Paper we thought that it would be one of the fundamental responsibilities of the Food Standards Agency to work out a mechanism where of course you will always get objections but where the principles should be that it is only in very clearly defined circumstances that commercial confidentiality should be retained. Those of you who have been involved in patent law and all those types of issues, you know that one can protect in all sorts of ways.

  262.  Do you think that the draft Bill is sufficiently strong in its references to transparency and openness and publication of advice?
  (Professor James)  One has to make a distinction, and I hope I am not offending anybody, between the legal specification of what is in the draft Bill and the presentation of the Bill. The presentation of the Bill is explicitly concerned to try to deal with what the drafters had discovered doubtless were prevailing concerns. I actually think that, therefore, one has to look at the actual draft Bill to be sure and even when you look at it it is rather difficult. The Agency itself will have to establish its own reputation by insisting on a policy of openness. That is one of many examples where the draft Bill does not exclude 20 options. It is up to that Agency to establish as a precedent a new manner of conduct which then begins to change the whole culture associated with its activities.

Dr Brand

  263.  You have written a very cogent report and the most helpful bit in your report is figure one and figure two which tries to make some sense out of what you think the arrangement might look like at the end of the day. Would it be impossible to ask for a similar diagram of what the current set-up is, then the phase that you are suggesting and then what you believe is in the Agency Bill? You said in response to Howard Stoate's question that you were fudging the answer. I do not think you fudged the answer, I think the Bill probably fudges the answer on a number of issues.
  (Professor James)  I think that would be a splendid way of displaying the differences. If you gave me more than a week or two and a powerful group of civil servants.

  264.  I am sure they are there at your disposal.
  (Professor James)  I did not realise that anybody was at my disposal.

  265.  They should be. I think it really would be extremely helpful, Chairman, because we are going to be struggling with this. For instance, you were talking about concordats with other players in the field who have got statutory powers which are not actually being touched by this new Bill although they are working in a field with responsibilities which are very parallel or complementary with the new Food Standards Agency. Going back to Audrey Wise's point about openness, if you have got to reach a concordat with an organisation which has got statutory responsibilities and which has not got an attitude of openness, the concordat actually might be very limiting to the Agency's activities.
  (Professor James)  That is precisely why I believe the concordats are crucial and that they need to be—putting it crudely—investigated by committees such as your own in due course.

Chairman

  266.  I should have introduced them earlier, Professor James, forgive me for not doing so. These people are probably as familiar with your work as you are, they have been working on it inter-departmentally, the Food Standards Group, for the last two years. Have you got anything to add to that?
  (Mr Podger)  Yes. Could I just say, Chairman, if it would be helpful to the Committee that we would be happy to provide analogous charts in relation to the present position and the position after the Bill which are the two missing bits of information.

Dr Brand

  267.  It would be extremely helpful. Professor James, you have got a whole range of agencies here. We took some interesting evidence from the Health Education Authority. They clearly do not believe that they will in any way be impacted on by the Food Standards Agency other than as a source of advice which they will then do something with as they see fit. Do you think that is the right way of actually delivering a sensible programme?
  (Professor James)  I have to be a little careful, I do not think that I am as close to the Health Education Authority as I used to be. It has gone through, shall I say, a whole series of shifts in its philosophical attitude to health promotion. Indeed, health education has often for many years been the dominant theme. When one is talking about health promotion education is actually a minor component. Therefore, I would have expected that if this Food Standards Agency were operating effectively it would be discussing with the Health Education Authority precisely what their remits are and whether, in fact, there should not be further discussions with other government departments that have effective control over a whole manner of different activities throughout Britain. It seems to me that doubtless they are highly effective in health education as such, but I think that it would be a great mistake when one is thinking about food and health for the purposes of a Food Standards Agency whose responsibility is really to think about the public out there to assume that mysteriously something happens in the Health Education Authority and that is simply a devolved activity.

  268.  At the moment, of course, one of the big difficulties is the confusion of advice that we get. We had the famous turkey burger mentioned the other day and I think if the Bill is implemented you would still have to get advice labelling of the packet, one from the Food Standards Agency and one from the Health Education Authority as to whether this is a safe food, which with a high fat content and a lot of salt it probably is, but not a healthy food.
  (Professor James)  You are certainly embarking on very sensitive areas. I have studied the issue of food labelling for about 20 years and when I was Chairman of the Coronary Prevention Group we came up with some radical proposals to make nutritional labelling meaningful for the first time. We have actually had discussions with the original Ministry of Agriculture group where special surveys were done showing that the concept that you simply provide information on the label in a particular format and that that is a mechanism whereby people can make appropriate food choices is—on the basis of their survey, not my survey, and everybody else's survey as well—nonsense.

  269.  Which Agency should take the lead in this in your opinion? Is this a responsibility for the Health Education Authority or for the Food Standards Agency, or is it a joint responsibility to be delivered through concordats?
  (Professor James)  I think that the responsibility in terms of the labelling of food will be a Food Standards Agency responsibility.

  270.  Sorry, that is on safety or on nutritional value?
  (Professor James)  I think it should be on nutritional value as well. I think it is fundamental.

Dr Brand:  That is very helpful.

Dr Ladyman

  271.  You were talking about the powers of the Agency and one of the things that the Bill requires local authorities to do is to register food outlets. Would it have more powers if it was required to license them instead of just registering them?
  (Professor James)  I have been bombarded by a supermarket legal scholar on why the linkage should not be made and I confess, after 20 minutes I was glad I did not have to repeat the arguments. The answer is I do not know. I think that there are two arguments as I understand it, i.e. the linkage between the funding of the process and the inspection of the outlet and people get very confused as to precisely what is happening, but I think that the definition of what an outlet is classified as——are you asking me whether that should be the Agency's responsibility? I had always assumed that that was all part of the local authority's responsibility.

  272.  At the moment the local authorities have to inspect premises with regard to the rules that are in the Food Safety Act. Under the new legislation, as I understand it—and perhaps one of the officers can correct me if I am getting this wrong—those same local authority officers will be required to register all retail premises for the purpose of this Act. What I am wanting to know is would it be better to say, instead of just registering them and keeping a list of who they are, that they had to license them so that, in other words, before you could become a food retailer you had to pass certain standards or have implemented certain things and then only once you had your licence could you begin to operate and that licence would be controlled by the Agency?
  (Professor James)  Chairman, I am clearly floundering. Is that something that Geoffrey Podger can help with?
  (Mr Podger)  There is an existing legal requirement for registration under the 1990 Act and so nothing emerges in the current Bill which affects that. Of course, that in no way invalidates the issue as to whether one should not proceed to licensing rather than registration, which I think is a different issue.
  (Professor James)  That different issue I now understand. It seems to me that there needs to be a mechanism whereby food outlets are not allowed to be food outlets unless they comply in an appropriate way and in my view that could be seen as a licensing mechanism.

  273.  Let me come back to the question that Dr Brand was starting to go on to about labelling. Labelling is only part of the equation of ensuring that people have a healthy diet. As previous witnesses have made clear to us, aspects of marketing might also come into this. If we are going to have food outlets that have to comply with certain criteria in order to become food outlets, ought the Agency to have the powers to require that criteria to take account of things like the way that food is marketed so that marketing takes account of what is or is not a healthy diet?
  (Professor James)  I have often been asked that sort of question and I recoil from saying yes they should because you are promptly accused of being a Leninist where you are specifying precisely what should happen and I think that in our climate it would be really very difficult to do that. If you do analyses of public attitudes you find that the public is really quite cynical about a lot of the marketing and I think that what has been missing over the years is a really effective depiction of what, in practice, in Britain would be a healthy diet and how you achieve it. I think we have been amazingly old fashioned when we compare the changes that we see—and I have done detailed analyses, for example, for Scotland compared with Finland and so on—and it is astonishing how the Finns have completely transformed their diet over a 15-year period without grotesque legal processes but whereby there is a coherent involvement of many different sectors and with that has gone a complete transformation in health of the population. That has not actually required that you say X, Y and Z should not be marketed in this way.

  274.  Does this Act as we have it in front of us now give the Agency the powers that at least the Finns have had in order to implement the same sort of change in this country?
  (Professor James)  I think it has, but that might be something that Geoffrey Podger could answer. I have been involved both in government delegations to Finland and had them back here. It is really quite difficult to get a coherent precise answer to some of the legal processes within Finland, but I have been assured by one of the most senior Ministry officials there that most of the changes have occurred without extraordinary new powers and Acts. It has all been part of the coherent involvement of different professional groups and establishing standards that were expected for the quality of this, that and the other and so forth. I stand to be corrected.
  (Mr Podger)  I think, Chairman, the best answer I can give is if we are talking about the Agency having the ability to have and implement with external partners a strategy to the end that Professor James has described in Finland then the Bill will provide that. I could not answer, I doubt anyone can, as to whether it would provide any specific additional labelling powers that the Finns may have, but I would suggest that certainly the Agency has all the powers it needs to draw up such a strategy and to succeed with partners to implement it.
  (Professor James)  It would seem to me, following your line of argument, that a strategy would be developed and of course the whole issue of the relationship between the Agency and local agencies is a critically complex process and the question is what authority would the local authority have to introduce local guidelines, plans, processes? I just do not know enough about local government law on that I am afraid.

Dr Brand

  275.  Can I come back to my original area of responsibility for asking questions which is about the powers of the Agency. The draft Bill sets out a few areas where the Agency has powers. I am not sure whether I am completely clear how they relate to the existing powers of, for instance, local authorities and the national authorities in the four countries of the United Kingdom and indeed with the European aspects and international aspects of regulatory powers that are now around.
  (Professor James)  I think, Chairman, I am the wrong person to ask about those power distinctions. I get extremely confused about what they are.

  276.  I am glad that it is not just me then. One final little question. You mention a whole lot of agencies interacting but I do not see mention of the Medicines Control Agency. There is a lot of controversy about claims made for nutritional supplements and that sort of thing and the Medicines Control Agency is threatening health food shops in all sorts of ways at the moment. Should that be a matter for the FSA or should it retain with the MCA or will it depend on the powers of the Advertising Standards Agency to decide whether claims that are made are valid or not?
  (Professor James)  I think the distinction between what the Medicines Control Agency and what the Food Standards Agency can do is horrendously complicated and getting worse, as you point out, by virtue of functional foods and supplements and so on. I do not think that it would be appropriate to try to devise a recipe for resolving that at the moment. That is not an attempt to fudge, it is simply that it is a huge issue being discussed at the European and international level and different groups have very different approaches. It seems to me that we would be subject to European legislation in this area.

  277.  Surely someone should take the lead on making a decision as to who is responsible? In the draft Bill I cannot see who takes the lead on that. There are always going to be difficult areas but unless you have got an agency or a department which takes the lead as to who has to sort it out you have a recipe for continued confusion.
  (Professor James)  I agree with that. My interpretation of this draft Bill is that there are about 40 areas of interaction with other Government departments and it would be really quite difficult for this Bill to so specify. I am not sure that it would be wise. Just think about functional food, that has exploded in the last three years. What is going to explode, like the GMOs is all sorts of things in the next 15 years. How is one going to develop an act which, as it were, anticipates some of these great changes? Again, it might well become a major issue for discussion within the first three to five years of this Agency—who is actually going to deal with this issue, the Medical or Food Agency, and of course you will have the traditional tussle between agencies. The Medical Agency on the whole traditionally has tended to try and keep away from all of that. Anything that involves a pseudo medical effect of a food they prefer to have it dealt with elsewhere. It is a constant theme in my response that the Agency has to be proactive if it is going to be effective. That would be another area where you would have to seek a solution rather than just saying "gee whiz, this is too difficult".

Mr Curry

  278.  Professor James, I started off by being rather in favour of this Agency but the more I listen to the discussion the more we seem to be creating some incoherent Orwellian monster which is beginning to frighten me. I think Dr Stoate has helped frighten me by arguing that food safety might become a tiresome inconvenience interrupting the jolly business of telling everybody what to eat. Is it not sensible that nutritional responsibility should be very tightly defined and confined in this legislation otherwise is there not a real danger that given scientific expertise changes in this matter as to what is good and what is bad, that it will very easily become subject to public ridicule if people think that this is there to tell the Scots that they should not drink and eat deep fried pizzas or whatever, or drink Irn-Bru, that eggs might be good and then they are bad, red meat is good in certain amounts and then it is not good? We have seen these changes. The advice about red wine keeps changing, fortunately going up most of the time. Even on the House of Commons' menus we now get these little symbols against things in order to tell us what to avoid. Is there not a real danger that we are going to head into some omnicompetent agency which because it is so widely competent will actually start failing in a number of areas because it is not specific enough, it is not targeted enough, its success is not measurable enough? Should we not start it with a limited agenda clearly defined which indeed was what most people thought was being set up which was to deal with food safety?
  (Professor James)  Thank you. You have presented the classic argument for confining this Agency to a microbiological limited perspective on food safety. That is certainly one line of argument in our inquiry. I have spent 25 years involved in nutrition and I did not spell it out because it seemed to me too obvious. Here in Britain we have a view which you have well described. When we looked at the Australian experience, the Danish, the Swedish, the American, it was very clear that they gave us one message: if you do not put nutrition in there you are in big trouble. You are right to specify that there is a danger that in fact this Agency will be seen to be all over the place. In practice what I am describing is a development since my own proposals which were actually based on the international experience. If anything the range of activities of the Agency has in many ways been limited, so there is SEAC operating in a different dimension, there is pesticides where there are certain controls put in and so forth.

  279.  That is what I am trying to get at because when you made your introduction you said that the proposals compared with your own White Paper, as it were, your own document, were fairly faithful to what you had said and that Government departments were fairly minor. The train of the conversation has tended to be that there is a wide area of health education and nutritional policy—and you yourself repeated the need to be proactive—which would seem to suggest that that is not as accurate as you indicated, that in fact the Government may have drawn it much more tightly than certainly some of my colleagues believe necessary and you yourself believe necessary. What I am trying to do is to get you to quantify where that gap is, how big that gap is, and if Dr Stoate was able to have his way what would need to happen to this legislation to enable it to do the proactive things you want it to do? Let us say we said "okay, let us buy the thesis, we should try and reproduce in England or in Scotland the success they have had in Finland because after all it is in the public interest that we should try and contain the exponential demand for expenditure and diet and nutrition is a good way to go about it". To get from here to there you are the Chairman, you arrive on Monday morning at nine o'clock and your first job is to say to the Government "if you want me to do these things, this is what I must have". What are those things legislatively and in other terms?
  (Professor James)  I am sorry for being so unclear before. I do not think that legislative control is necessarily the answer. If you are going to have a huge drive in nutrition being looked at in many different dimensions, many different societies, by definition you are going to have to involve other Government departments. It is a mistake to think that you have an all powerful group that is going to dictate to all other interests, it does not work that way. When you actually look at the way in which effective change has occurred on a global basis in third, second and first world countries you normally get change effectively by generating a new consensus about what is actually required.


 
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