Big consequences for poor hygiene

The trend for tough sentencing across health, safety and food hygiene law means Scottish food and drink businesses now face losing their livelihoods and even their liberty if they endanger their customers.

James McMillan is an associate in the fraud, investigations & business crime practice at Maclay Murray & Spens LLP.

What new food laws affect retailers?
Under the latest EU Food Information for Consumers regulations, now in force, businesses preparing and selling pre-packaged food and drink must provide details of 14 major allergens present in the food they serve.
The Food Standards Agency (FSA) in England and Wales recently introduced new guidelines on 1 March 2017 addressing the serving of minced meat products, for example rare burgers, making clear that such food products must be thoroughly cooked, except where specific approval has been obtained.

Those serving hot food on their premises should take particular note, especially as Food Standards Scotland appears to have taken an even tougher stance than their English counterparts. Regulators recently forced a restaurant in Glasgow to refrain altogether from selling rare burgers.

The concern of regulators both north and south of the border is that E. coli bacteria, which causes food poisoning, can be present throughout minced meat, rather than just on the surface area. At the moment it appears that a London restaurant could legally serve a Scottish-reared burger rare if it came from an approved supplier, but a pub in Aberdeenshire or a shop offering hot lunches in Edinburgh couldn’t.

Who is responsible for labelling prepared food, the vendor or the supplier?
Although clearly most retailers rely on their suppliers to provide packaging, which complies with all relevant UK and Scottish laws, as the point of contact with the public they also have a responsibility for the consequences should someone become ill as a result of eating a product bought in their store.

All food business operators must avoid supplying food which they know or presume to be non-compliant with the law.

Those serving hot food on their premises should take particular note, especially as Food Standards Scotland appears to have taken a tougher stance than their English counterparts.

A degree of diligence when it comes to vetting products destined for the shelves is, therefore, advisable. Products coming from small local businesses, or from abroad, may warrant checking, especially if the packaging makes no mention of allergens.

It is crucial that managers and business owners are aware of the labelling laws, and familiarise themselves with the 14 allergens specifically present in foods, especially if the food is not pre-packaged.
For those serving food and drink prepared on the premises – or otherwise by the business itself – it is essential that all staff involved with preparation and serving be familiar with the law.

They will need to know what allergens are present in all the dishes on offer at any time, and be prepared to advise customers accordingly, while management will want to have records that potentially harmful ingredients were suitably recorded and communicated down the service chain.

The allergen information should be accurate, consistent and verifiable upon challenge, for example, when asked by a customer or a local authority food safety officer.

What are the potential consequences of breaking these laws?
New sentencing guidelines for health, safety and food hygiene offences in England and Wales were introduced recently, and will be used as a cross check in the Scottish courts too.
When deciding the level of a fine, judges now consider business turnover and the potential harm a breach could have caused or did cause.
The level of fines is potentially crippling for high-turnover, low-margin operations which are common in the retail industry. It is only a matter of time before a similar approach is adopted for food hygiene and labelling offences.

In serious cases, small business owners can be held personally liable and potentially even go to jail.

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