Examination of Witnesses (Questions 540-559)
MR DAVID
PICKERING AND
MR PHIL
THOMAS
12 JULY 2004
Q540 Joan Ruddock: You said an average
of four per authority, have you looked at those statistics by
authority? Is it a case that there are some enthusiastic officers
and a few authorities have done lots and lots and lots and most
authorities do not do any at all?
Mr Pickering: I think it varies
by authority. I think it is not as polarised as that. Most authorities
do take their obligations under the Food Safety Act seriously
and most authorities, maybe not in that particular year, will
take action, they will not take prosecutions but will take some
form of action. Again, the Food Standards Agency will be able
to give you figures probably better than we can, but certainly
there has been an increase, I think, in the use of formal Home
Office cautions as an alternative to prosecution. That fits in
with the idea that, if a company will agree to accept it, for
an authority that is a far cheaper and easier route to achieve
compliance than trying to take that company to court. I think
written warnings will happen, but in terms of consistency throughout
the country there is not any. Probably that is because there may
be local issues which will mean one authority will be more active
than another.
Q541 Joan Ruddock: Do they tend to be
proactive as opposed to consumers coming to the authority with
a complaint; it is going out and making observations?
Mr Pickering: There are complaints
we deal with but also each authority will have a food standards
plan in which normally they set out the number of inspections
and sampling projects they are going to carry out. It is not just
a case that authorities sit back and wait for complaints, there
is normally an active inspection regime, plus, coupled with that,
a sampling regime. I do not know what the figures are but there
are formal actions resulting from complaints and the inspections
and sampling which have been carried out.
Q542 Joan Ruddock: Are most local authorities
resourced sufficiently to do that and follow it through with prosecutions,
if that is the only way to deal with a persistent offender, for
example?
Mr Thomas: It depends very much
on the amount of complaints and the depth of detail of the investigation
but on the whole trading standards are equipped to carry out investigations.
We investigate complaints and criminal activity in all the consumer
protection legislation with which we deal. To focus in on one
as opposed to the rest of them, I think a general picture would
be that we are able to cope.
Mr Pickering: I think it would
be fair to say that occasionally authorities do try to go for
the non-formal route rather than the formal. Certainly in the
authority I have worked in it has got to a situation where, because
of the process, we have decided to abandon a prosecution because
we did not feel we were in a position to gain enough evidence
within the time limit which we had.
Q543 Joan Ruddock: That is quite important,
if you are saying you abandoned it not because of lack of resources
but because you could not get the evidence in time. You are saying
that the process is wrong, are you, or inadequate?
Mr Pickering: The process does
not help but in terms of resources there is an issue, because
if you have the resources probably you could throw the resources
at it to get it within the time limit. Given the resources which
we have got, it can be quite difficult when a company which you
are investigating comes up with evidence which you feel you have
got to counter to win the case, but you do not have the resources
to throw at it but the major companies do. It could be a small
unitary authority, a London borough, or whatever, with a small
budget, trying to take a case against one of the major corporates,
and it is difficult.
Q544 Joan Ruddock: It is not so much
the Eddie Grundys—I do not know if you are aware of the
Archers case and his meat—it can be major companies which
are not complying and local authorities are pitted against major
companies?
Mr Thomas: To be fair, yes. As
an enforcement body what we try to do is seek compliance, so we
will try to get compliance first before we prosecute. Although
prosecution is principally the only tool which we have got to
ensure compliance, it is seen very much as a last resort and we
will use a number of different methods which we have got open
to us, advising the trader and using the home authority principle
which we have which works very well. In general terms, the people
who push the boundaries and cause the more complex investigations
tend to be the major manufacturers and retailers because of the
technical abilities they have to push the legislation as far as
they can make it go.
Mr Pickering: I think they accept
that part of that process is the fact that they are trying to
establish a bigger market share than their competitors. They are
the people who will be pushing the legislation to its limits and
normally that is where we end up in court if maybe we cannot agree
on that interpretation.
Q545 Joan Ruddock: It is very interesting.
Is it a difficulty for local authorities, we were talking about
resources but just in terms of the number of statutes which you
have to enforce? Where does looking after food labelling and safety
laws sit in relation to all the many duties which trading standards
officers have?
Mr Pickering: It is part of the
core function of most trading standards departments and it is
treated as that. Some authorities will have dedicated food and,
these days, farming teams because of the food chain issue, but
even where they have dedicated teams now it will mean that most
authorities will have officers who can enforce food legislation.
I think that the vast majority of authorities take it as being
a core function of what they do. Certainly I think that, and again,
obviously, the FSA would be able to comment on it, the audit programme
which the FSA have carried out has shown that within trading standards,
within the Service, that is the case.
Mr Thomas: Because we are based
at local government level, you will find that we respond to local
needs. In certain authorities they may have a higher profile of
food manufacture because of their general location, and so it
is right that they would deem food to be a higher profile in those
areas than in one perhaps where there was not any manufacturing
taking place. As a whole, I think it is one of the core functions.
Q546 Joan Ruddock: Are there any other
bodies which can enforce, not just local authorities?
Mr Thomas: The FSA can enforce.
Mr Pickering: We had a think about
this and we could not think of any other organisations which would
enforce food legislation.
Q547 Mr Drew: If we can talk about the
infamous, notorious, whatever you want to call it, case of Tesco
and Asda, can I be clear which trading standards department is
taking action?
Mr Thomas: Shropshire are taking
the case against Tesco and the authority for which I work, Swindon,
are taking action against Asda.
Q548 Mr Drew: You received a complaint,
if you are wearing your Swindon hat, and you are acting on that
complaint?
Mr Thomas: No. The information
was picked up by an officer who was shopping there off duty and
he saw the sign and realised that it offended the regulations.
Q549 Mr Drew: Do you not need this like
a hole in the head? I can think of plenty of actions you might
want to take, like Tesco and Asda, but without prejudging the
legal outcome this is a big case and, in a sense, it is carelessness
on their part rather than deliberately trying to mislead?
Mr Thomas: It is difficult to
comment on the case because it is still going on. Definitely you
are right that if they had been more careful the claim would not
have been made. If we were given the choice between having to
prosecute and not having to prosecute then we would pick not having
to prosecute. Nevertheless, we are forced into a situation where
we have to, to ensure compliance.
Q550 Mr Drew: In a sense, if we get further
along the statutory line, with regard to food labelling, inevitably
this is going to lead to many more prosecutions?
Mr Thomas: Yes, although, interestingly,
with this particular claim, if the new health claims Directive
ever becomes law and pre-approval was required then obviously
that would have negated this particular action because they would
not have been able to make that claim with the pre-approval.
Q551 Chairman: On that general point,
what is your view of the debate which is taking place within Europe
about the additional labelling and health claims? What is your
Institute's position on what should be coming out of Europe?
Mr Thomas: We support fully the
proposals that health claims should be regulated and that there
should be pre-approval for all health claims which are made, even
ones which relate to generic ones. For example, not picking them
for any particular reason but health claims such as the branding
like "too good to be true" or "be good to yourself",
those particular pseudo health claims, which do not actually make
a health claim but give the impression to the consumer that the
food has a health benefit to them.
Q552 Chairman: What implications would
that type of legislation have for enforcement, your ability to
enforce the rules?
Mr Pickering: It depends how the
legislation is worded, of course, but in theory it should make
our lives easier because we will not necessarily have to take
a company to court in relation to a health claim type scenario.
The health claims area probably is the one which is causing a
lot of issues at the moment because of the growth of the types
of foods which are coming onto the market at the moment. At the
moment it seems that every food which comes onto the market has
got some benefit for us, and inevitably this leads to more claims
in terms of people's health and it makes our job quite difficult.
We were going to mention the work of the Joint Health Claims Initiative,
which is helping to a certain extent in terms of verifying claims.
That is the other issue. It is not just whether or not the claim
can be made, if it can be made it is how then can it be verified,
which, as you can imagine, is quite a difficult one to verify
from our point of view, it is a lengthy investigation. Hopefully,
if it can be worded in such a way that will work, it should make
our life a bit easier in that area.
Q553 Joan Ruddock: We have heard a lot
about nutrition requirements being displayed, labelled, on processed
food and food in supermarkets, but it is much more difficult when
it comes to catering outlets and food which is sold loose. Have
you any ideas you can share with us as to how it might be possible
to signal nutrition requirements in these outlets?
Mr Thomas: There is a proposal
to have traffic lights. I am not entirely sure how that system
will work and how the message will be conveyed to the consumer
as to what foods are good to eat and what are not. We appreciate
that it is very difficult for catering establishments, particularly
if they are making the products from raw materials, to work out
what the nutrition content of the food is. We see it as a vital
thing that they do, because obviously so much food is eaten from
catering establishments these days that whilst consumers might
be very particular about the foods they eat which are pre-packed,
where they are given the information, all that good work can be
undone by eating the wrong sorts of foods at catering establishments.
From that perspective, we would see it as an important thing that,
by whatever means, that information is given, particularly in
terms of fat, sugar and salt and also the calorific value, because
obviously they are the four in which consumers are most interested,
in terms of their health and well-being.
Q554 Joan Ruddock: Do you think it would
be possible for your members to police a traffic lights system
which made it easier?
Mr Thomas: It would depend on
how the traffic lights system was to work. I think the hardest
part of a traffic lights system is getting the information to
the consumer so that the consumer understands what is meant by
the traffic lights system. If something is high in sugar but low
in fat, is that a green traffic light, an amber traffic light
or a red traffic light, and how many amber traffic lights foods
can a consumer eat before they do themselves some nutritional
harm?
Q555 Joan Ruddock: Clearly, that would
all have to be worked out and agreed across industry to make it
work at all?
Mr Thomas: Indeed.
Q556 Joan Ruddock: Supposing all that
work had been done then how would you view that, as something
which your officers would have to police?
Mr Thomas: It would be just another
add-on to the work they do within the food area. We take thousands
of samples of food per year. We take them to look at the labelling,
the compositional requirements and against any nutrition claims
which are made. Obviously, that would be another thing that we
would analyse for, to make sure that it conformed to whatever
light there was in the traffic lights system.
Q557 Joan Ruddock: How do you think they
will enforce it? You say they would have to take it on, but spot
checks, or what?
Mr Thomas: Probably we would do
it as part of a sampling programme.
Mr Pickering: I think it would
be just part of the normal work really. I think the key to it
is, as Phil said, if we did try to take action against a product
which seemed to be offending, would the criteria be sufficiently
precise for us to take it? To be honest, if it is another scheme
which comes in which is not well-worded probably it will do more
harm than good. Then, for us as enforcers, effectively it becomes
another claim which manufacturers can use to sell their products
in a way in which perhaps we would think, "Well, really should
that be sold in that way?"
Q558 Joan Ruddock: Another meal for the
lawyers, is that what you mean?
Mr Pickering: You mentioned farm
assurance schemes earlier on. There are sorts of things like the
red tractor logo and again that is something we saw as perhaps
a good idea but there are problems with it.
Chairman: That is a point I think David
wanted to pursue.
Q559 Mr Drew: Yes. This issue of relationships
with central government, I am interested to know what information
you receive from central government on two aspects of this evolving
area. Firstly, are they proactive with you in encouraging you
to take more interest, including prosecutions? Secondly, what
level of information have you got with regard to progress in Europe
as a whole to see if it is possible to get a common system? For
example, do you meet with your colleagues in different countries
to see what sorts of things they are doing and to see if there
is some commonality of approach which may be possible?
Mr Pickering: I think, generally
speaking, the relationship with central government in terms of
individual agencies is quite good and, on the whole, we feel involved
in the process of putting together legislation. Certainly the
FSA does involve us in consultations on a regular basis, so we
do not have any real issues about that in terms of the FSA. I
think perhaps where the issue comes is in terms of interaction
between the different central government bodies, Defra, FSA, the
DTI even.
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