Crack down on food-related crime

There is a variety of food-related practices which are forms of fraud. Chancelle Blakey and Zoe Betts share how to act under the law

The problem

Food law offences can range from individual breaches by small-scale operators to lucrative, organised criminal activity. They cost the UK economy billions of pounds per year, seriously undermine consumer faith, and can have fatal consequences.

Imagine scenarios in which fish and chip shops advertise and charge for ‘cod’, while fishing restrictions mean the products on offer cannot all be cod; or a retailer selling food after the expiry of its ‘use by’ date; or cheap alcohol being substituted for more expensive ingredients in premium branded products.

The law

Food law comprises a mix of retained European law and national legislation. The main pieces of legislation cover food imports and exports, food safety, traceability, labelling, and product withdrawals and recalls. Detailed provisions and food safety and hygiene offences can be found in Regulation (EC) 178/2002, the General Food Law; Regulation 852/2004 on the Hygiene of Foodstuffs; Regulation 1169/2011 on the Provision of Food Information to Consumers; the Food Safety Act 1990 and the Food Safety and Hygiene (England) Regulations 2013.

Food crime is a form of serious fraud.

The Food Standard Agency’s National Food Crime Unit (“NFCU”) works to prevent, detect and investigate food crime falling into these categories:

• Theft – dishonestly obtaining food, drink or feed to profit from their use or sale.
• Illegal processing – slaughtering or preparing meat in unapproved premises or using unauthorised techniques.
• Waste diversion – diverting food, drink or feed meant for disposal back into the supply chain.
• Adulteration – including a foreign substance which is not on the product’s label to lower costs or fake a higher quality.
• Substitution – replacing a food or ingredient with another substance that is similar but inferior.
• Misrepresentation – marketing or labelling a product to wrongly portray its quality, safety, origin or freshness.
• Document fraud – making, using or possessing false documents with the intent to sell or market a fraudulent or substandard product.

Expert advice

The principal defence against prosecution for a breach of food safety regulations is “due diligence”, ie where the business can demonstrate that it has taken all reasonable steps to avoid committing an offence.
To combat food crime, businesses must be well-informed of the risks and implement measures to protect themselves and their customers.

To-do checklist

Food businesses should have an adequately robust food safety system and accurate records, which reflect (among other things):

• The chosen Hazard Analysis and Critical Control Point (HACCP) process
• Cleaning schedules
• Measures to prevent cross-contamination
• Waste disposal
• Pest control
• Labelling procedures
• Staff training
• Supply chain vetting procedures, risk assessments and use of the NFCU’s food fraud resilience self-assessment tool
• Any Counter-Fraud strategy or policy.

Businesses need robust whistleblowing procedures (offered by Safecall) to rapidly report and escalate employee concerns regarding food safety, hygiene or fraud. Key benefits include helping to prevent offences or reduce their seriousness, mitigate financial penalties, contain reputational damage, and provide key insights for senior management to prevent recurrences.

Concerns can also be reported confidentially through the FSA website, via email, or by calling the Food Crime Confidential line on 020 7276 8787.

For potentially serious, wide-ranging or high profile incidents, immediate legal advice should be sought on issues such as privileged internal investigations, product withdrawal or recall, and liaison with the appropriate regulators.

Beware

Penalties for most offences are governed by the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guidelines. Offences covered include food poisoning caused by unsafe food preparation and poor hygiene, misleading labelling and failing to ensure traceability of products. Maximum penalties are unlimited fines (based on turnover, not profit) and up to two years’ imprisonment for convicted individuals.

Chancelle Blakey is business development manager at Safecall, and Zoe Betts is legal director at Pinsent Masons LLP