The general requirements relate to food and feed safety, presentation, labelling and advertising, responsibilities and traceability.
The national law prohibiting unsafe food was replaced by Article 14 of Regulation (EC) 178/2002 which stipulates that “(f)ood shall not be placed on the market if it is unsafe” and that food is unsafe if it is considered to be ‘injurious to health’ or ‘unfit for human consumption’. Article 14(3) provides:
In determining whether any food is unsafe, regard shall be had:
(a) to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and
(b) to the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods.
Article 14(4) deals with ‘injurious to health’:
In determining whether any food is injurious to health, regard shall be had:
(a) not only to the probable immediate and/or short-term and/or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;
(b) to the probable cumulative toxic effects;
(c) to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.
In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.
Article 14 replaced what was section 8 of the Food Safety Act 1990 which used a similar approach and terminology, but there may be differences of interpretation. The Food Standards Agency highlights this in guidance issued in 20071 where it points out the similarity in terms used but also the additional factors to be taken into account set out in Article 14(3) to (5) which were not a part of section 8 and are new to UK food law.
Under both Article 14 and section 8 food ‘unfit for human consumption’ includes food which is contaminated but not in a manner detrimental to health and so is a wider concept than food ‘injurious to health’. Under an earlier incarnation of section 8, ‘food unfit for human consumption’ was held to mean more than unsuitable.2 Article 14(5) now describes unfit food more widely in terms of being unacceptable for human consumption.
Generally Article 14 should prove to be wider in scope than section 83 as originally drafted.
Article 14 sets out a number of presumptions:
Where any food which is unsafe is part of a batch, lot or consignment of food of the same class or description, it shall be presumed that all the food in that batch, lot or consignment is also unsafe, unless following a detailed assessment there is no evidence that the rest of the batch, lot or consignment is unsafe.4
Food that complies with specific EU provisions governing food safety shall be deemed to be safe insofar as the aspects covered by the specific EU provisions are concerned.5
Where there are no specific EU provisions, food shall be deemed to be safe when it conforms to the specific provisions of national food law of the Member State in whose territory the food is marketed.6
Finally, Article 14(8) provides that conformity of a food with specific provisions, either EU food safety provisions or under national law which are applicable to that food, shall not bar the competent authorities from taking appropriate measures to impose restrictions on it being placed on the market or to require its withdrawal from the market where there are reasons to suspect that, despite such conformity, the food is unsafe.
The enforcement of Article 14 is provided for by the General Food Regulations 2004.7
3 Feed Safety Requirements
The general requirements in the case of feed are contained in Article 15 of Regulation (EC) 178/2002 and has the same starting point as food in that ‘(f)eed shall not be placed on the market or fed to any food-producing animal if it is unsafe’ which is then defined as follows:
Feed shall be deemed to be unsafe for its intended use if it is considered to:
— have an adverse effect on human or animal health;
Similar presumptions apply in relation to feed as apply under Article 14 to food:
Where any feed which is unsafe is part of a batch, lot or consignment of feed of the same class or description, it shall be presumed that all the feed in that batch, lot or consignment is also unsafe, unless following a detailed assessment there is no evidence that the rest of the batch, lot or consignment is unsafe.10
Feed that complies with specific EU provisions governing feed safety shall be deemed to be safe insofar as the aspects covered by the specific EU provisions are concerned.11
Where there are no specific EU provisions, feed shall be deemed to be safe when it conforms to the specific provisions of national feed law of the Member State in whose territory the feed is in circulation.12
Finally, Article 15(5) provides, as with food, that conformity of a feed with specific provisions applicable to that feed shall not bar the competent authorities from taking appropriate measures to impose restrictions on it being placed on the market or to require its withdrawal from the market where there are reasons to suspect that, despite such conformity, the feed is unsafe.
The enforcement of Article 15 is provided for by the Feed (Hygiene and Enforcement) (England) Regulations 2005.13
4 Presentation, Labelling and Advertising
The protection of the consumer is further promoted by the provisions of Article 16:
Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.
Article 16 applies to both food and feed and whilst it applies without prejudice to specific provisions of food law it is widely drawn. The Food Standards Agency illustrates this point in its 2007 guidance:
The Article also covers cases where a consumer is misled as to the nature, substance or quality of the food by the setting in which food is displayed. This could apply, for example, if a cake containing synthetic cream was displayed in a chill cabinet in such a way as to give the impression that it contained fresh dairy cream.14
The enforcement of Article 16 is provided for by the General Food Regulations 2004 and the Feed (Hygiene and Enforcement) (England) Regulations 2005.15
The primary responsibility, set out under Article 17(1), rests on food and feed business operators16 to ensure that, at all stages of production, processing and distribution, foods or feeds satisfy the requirements of food law relevant to their activities. Business operators must also verify that such requirements are met. This responsibility applies to every step in the food chain from initial production through to delivery to the consumer.
A ‘food business operator’ is the natural or legal person responsible for ensuring the requirements of food law are met within the food business under their control and ‘food business’ is any undertaking, whether for profit or not, public or private, carrying out any activities related to any stage of the production, processing or distribution of food.17
A ‘feed business operator’ and ‘feed business’ is defined in similar terms.
The responsibilities of Member States are set out in Article 17(2):
Member States shall enforce food law, and monitor and verify that the relevant requirements of food law are fulfilled by food and feed business operators at all stages of production, processing and distribution.
Member States are required to maintain an official system of controls and undertake other activities, including public communication on food and feed safety and risk, food and feed safety surveillance and other monitoring activities covering all stages of production, processing and distribution.
Member States must also make provision for rules on measures and penalties applicable to infringements of food and feed law which must be effective, proportionate and dissuasive.
The purpose of traceability is to assist in withdrawals and recalls of unsafe food and was driven by the prominent food scares of the 1990s.
Article 18 covers ‘traceability’ which is defined as “the ability to trace and follow a food, feed, food-producing animal or substance intended to be, or expected to be incorporated into a food or feed, through all stages of production, processing and distribution.”18
The traceability of food, feed, food-producing animals, and any other substance intended to be, or expected to be, incorporated into a food or feed shall be established at all stages of production, processing and distribution.
To this end food and feed business operators must be able to identify any person who has supplied a food and to whom they have supplied a food. There must be a system in place to make this information available on demand.
The Food Standards Agency recommends:
… as a minimum, traceability records should include the address of the customer or supplier, nature and quantity of products, and the date of the transaction and delivery. It is expected that the provision and retention of this type of information is already standard practice in basic accounting. It can also be helpful to record the batch number or durability indication (where applicable).19
The following points are worth noting:
There is no requirement for a dedicated food traceability system to be put in place. Whilst one may be adopted, it is the ability to produce the required information that matters.
There is no general requirement for internal traceability matching inputs to outputs, but there may be more specific traceability requirements in legislation relating to particular foods.
There is no prescribed format to the records which must be kept.
A record of sales to the final consumer is not required because the final consumer is not a food business.
Records should be kept for as long as the food or feed business operator determines, having regard to the nature of the food, its product life, and the circumstances under which they might be required to produce records. It should be borne in mind that a failure to produce the information is an offence.20
Finally, food or feed which is, or is likely to be, placed on the market in the EU must be adequately labelled or identified to facilitate its traceability, through relevant documentation or information in accordance with the relevant requirements of more specific provisions.21
The enforcement of Article 18 is provided for by the General Food Regulations 2004 and the Feed (Hygiene and Enforcement) (England) Regulations 2005.22
1 Food Standards Agency, Guidance Notes for Food Business Operators on Food Safety, Traceability, Product Withdrawal and Recall , July 2007
2 David Greig Ltd v Goldfinch (1961) Sol Jo 367, LGR 304. The defendant’s conviction for the sale of a pork pie which had harmless black mould under the crust was upheld.
3 Now amended and replaced by the General Food Regulations 2004 SI 2004/3279, regulations 4 and 10, as amended by the Official Feed and Food Controls (England) Regulations 2005 SI 2005/2626, regulation 41
5 Ibid., Article 14(7)
6 Ibid., Article 14(9)
8 Op. cit., Article 15(2)
9 Sections 73 and 73A, now repealed by Animal Feed (England) Regulations 2010 SI 2010/2503, regulation 14(7)
10 Regulation 178/2002, Article 15(3)
11 Ibid., Article 15(4)
12 Ibid., Article 15(6)
14 Op. cit., para 25
15 See footnote 7 and 13 above respectively.
17 Ibid., Article 3(2) and (3)
18 Ibid., Article 3(15)
19 Op. cit., para 29
20 In the case of food, see General Food Regulations 2004 SI 2004/3279, regulations 3 to 6, as amended by the Official Feed and Food Controls (England) Regulations 2005 SI 2005/2626
21 Op. cit., Article 18(4)
22 See footnote 7 and 13 above respectively.