Food Policy

This section sets out the policy relating to the general principles of enforcement of food safety legislation and is drafted in accordance with the overarching Corporate Enforcement Policy. It embraces the principles set out in the 'Regulators' Code’ issued by the Office for Product Safety and Standards.

More specific procedures concerned with statutory notices, emergency action, formal cautions and prosecutions are detailed in enforcement procedures. These procedures take account of all Codes of Practice and ‘The Code for Crown Prosecutors’

Enforcement officers by necessity as professional officers have considerable discretion in decision making and initiating enforcement action. Such action can range from informal advice, information and support through to formal enforcement mechanisms, including the use of statutory notices and prosecution.

This part applies to all dealings, formal and informal, between officers and businesses, all of which contribute to securing compliance with the law. It will provide policy standards, aid professional judgements and decision making and ensure both consistent and effective enforcement.

The core expectation for those we deal with, quite reasonably, is for us to be professional, fair, co-operative and consistent in our approaches. Businesses and the public also expect local authority actions to result in the remedying of potentially risky situations and for those guilty of serious offences to be adequately punished.

We will adopt a positive and proactive approach towards ensuring compliance by:

1. helping and encouraging businesses to understand and meet regulatory requirements more easily without imposing unnecessary additional cost
2. assessing whether other social, environmental and economic outcomes can be achieved by less burdensome measures, and
3. responding proportionately to regulatory breaches

Enforcement should be informed by the principles of proportionality in applying the law and securing compliance; consistency of approach; targeting of enforcement action, openness about how we operate and what businesses may expect and helpfulness in providing advice and assisting with compliance.

Appendix 2 sets out the standards of service businesses should expect to receive.

It will be expected that enforcement officers, when making decisions and communicating with businesses, will follow these principles, together with relevant codes of practice and guidance. The Primary Authority partnership scheme will be used and adhered to where appropriate.

Any departure from this must only occur when the following criteria are complied with:

1. in exceptional circumstances
2. where actions are capable of justification
3. where there has been full consultation with the Team Leader or Environmental Health Manager (Commercial)

Any sanctions or penalties being considered should:

• aim to change the behaviour of the offender
• aim to eliminate any financial gain or benefit from non-compliance
• be responsive and appropriate for the particular offender and regulatory issue
• be proportionate to the nature of the offence and the harm caused
• aim to restore the harm caused by regulatory non-compliance, where appropriate, and
• aim to deter future non-compliance

This policy will be reviewed periodically in response to new legislation and guidance issued by central government departments.

All enforcement actions and advice must be proportional to the risks posed to the public and the seriousness of any breach of legislation.

When considering enforcement action, consideration should be given to the cost of measures required to reduce the risk weighed against the benefit to be gained by reducing the risk. Consideration should be given as to the impact upon small businesses.

In addition, there should be a staged approach to enforcement action with increasing degrees of enforcement as management of businesses fail to respond to previous requests. Officers should provide an opportunity for dialogue in relation to the advice, requirements and decisions.

The only exceptions to the above approach would be where a serious and/or imminent risk to public safety or health exists in which case, immediate action will be taken to rectify the issue in question.

The staged approach to enforcement is further detailed in the enforcement procedures.

Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.

Businesses expect consistency from enforcing authorities in advice given, the use of statutory notices, decisions on prosecution and responses to complaints. It is recognised however, that in practice it is not simply due to the wide range of variables faced. Therefore, it is expected that officers will use their professional judgement and exercise discretion, in conjunction with this policy, when coming to a decision on appropriate action.

Enforcement officers will however have the following arrangements in place in order to promote consistency of approach:

1. Officers will perform validation exercises relating to joint inspections by team leaders
2. Team leaders will accompany all officers on a minimum of one initial inspection per year to assess the consistency of approach between officers
3. Officers openly discuss cases at team meetings and/or with Team Leaders to provide a consensus of opinion
4. Formal action will be ‘signed off’ by the Team leaders and where prosecution is being considered, by the Environmental Health Manager (Commercial) and Head of Environmental Health
5. Correspondence and file records will be checked and monitored on a regular basis
6. Where there is a need for clarification, approaches will be made to other regulators, such as the Berks and Oxon Food Liaison Group
7. Officers will participate in inter-authority consistency exercises and the FSA consistency exercises and change working practices, if necessary, to achieve consistency
8. Buckinghamshire Council will take an active role in the Berks and Oxon Food Liaison Group
9. Reference will be made to appropriate central government guidance
10. Reference will be made to appropriate guidance issued by a Primary Authority
11. Where inconsistencies arise, appropriate training and supervision will be given

Inspections and enforcement action will be targeted primarily at those activities giving rise to the most serious risks or where hazards are least controlled and that action is focussed on those responsible for the risk and who are best placed to control it.

The prioritisation of inspections will be based on guidance issued by the Food Standards Agency, primarily the Code of Practice and the Regulators' Code.

Enforcement officers will help businesses to understand what is expected of them (and what would not be expected) and what they should expect from the enforcing authority.

Confirmation of all work (initial inspections, revisits and complaints) will be given in writing to business managers and as appropriate to head offices. Information will clearly explain what the non-compliant item or activity is, the advice being given, actions required or decisions taken and the reasons for these.

There will be a clear distinction between legal requirements and good practice recommendations (either verbally or written).

Where notices have been served and are on a Public Register, this will be available for viewing free of charge.

If formal requests for information are received from a third party, they will be handled in line with requests for information under the Freedom of Information Act.

Businesses will be made aware of the Corporate Complaints Procedure when appropriate and the appeals procedure to the Environmental Health Manager (Commercial) in the first instance. This is to be included in correspondence to businesses following inspections.

The principle is to actively work with businesses to advise on and assist with compliance wherever possible. To this end, officers will identify themselves by name and provide a contact point and telephone number for further dealings. Businesses will be encouraged to seek advice/information; information will be freely available on the Council’s website with links to those produced by central government. When appropriate and resources permit, training courses/seminars will be provided for businesses on specific issues.

Article 5 of EC Regulation 852/2004 is flexible and requires food businesses to establish procedures that control food safety hazards and integrate these with documentation and record keeping appropriate to the size and nature of the business. Whilst larger, more complex businesses and those with a high level of understanding of food safety management may choose to demonstrate compliance by having a traditional HACCP system, others may do so with simpler approaches that take account of this flexibility as long as the same outcome is achieved; safe food being produced.

Although the Food Standards Agency has produced the Safer Food, Better Business (SFBB) packs to help a variety of businesses within the food industry e.g. catering, retail and childminders, it is recognised that it does have limitations and may not be the most appropriate FSMS to use. Therefore, if inspectors identify that the scope of the food operation exceeds that of the SFBB toolkit, then the food business will be required to produce a fully documented food safety management system in accordance with HACCP principles.

In certain circumstances, in particular in food businesses where there is no preparation, manufacturing or processing of food, it may be the case that the relevant hazards can be controlled through the implementation of prerequisite requirements. For example, where a business is especially low risk, like a sweet shop, greengrocer, or market stall. Presenting only basic hygiene hazards, it may be sufficient that the business uses the industry guide, understands and applies it. In these circumstances, documentation and record keeping may not be necessary.

When the Food Standards Agency introduced the Safer Food, Better Business toolkits, local authorities were funded to deliver coaching to food businesses. Therefore, unless a new business, all established food businesses have been given a great deal of advice and guidance to meet their legal obligations.

This policy will secure compliance with Article 5 of EC Regulation 852/2004 through a staged approach where appropriate but otherwise, where non-compliance is established, appropriate enforcement action will be taken. This will normally take the form of Hygiene Improvement Notices but where significant risks exist, more immediate action will be taken.

Where there is a partly developed system, and controls are in place and there are no significant risks to health, a more informal approach may be more appropriate.

Some of the HACCP principles are on-going, for example monitoring, so notices cannot be served. It is therefore likely that notices may only be served for the implementation or review of a documented FSMS.

From time to time new businesses will be established and existing premises will change ownership. The following options should be considered:

1. New owners should be made aware of their responsibilities in respect of Article 5 (if possible before the premises are open for business)
2. Establish at the initial inspection that the business does not present a significant risk to public health. This inspection should be performed at the earliest opportunity following the local authority being notified
3. Provided that no significant risk to public health exists, agree with the proprietor a programme of compliance with Article 5
4. Where a significant risk to public health exists, action is to be taken in line with the general enforcement policy

If the formal enforcement action being considered is prosecution, we will also consider a number of additional factors in line with the Code for Crown Prosecutors and any other nationally recognised guidance.

These factors may include the following:

• the seriousness of the alleged offence
• the history of the party or business concerned
• the willingness of the business or the individual to prevent a recurrence of the problem and co-operate with officers
• whether it is in the public interest to prosecute
• whether any other action (including other means of formal enforcement action) would be more appropriate or effective

These factors are not exhaustive and are not listed in order of significance. The rating of the various factors will vary with each situation under consideration.

Where a prosecution is not considered to be in the public interest, a simple caution may be administered.