General Food Safety: Food Safety Act 1990

1              Introduction

The Food Safety Act 1990 predates general food law Regulation (EC) 178/2002 by some 12 years and remains the original source of domestic UK food law.

The 1990 Act has been subject to significant amendment on two occasions:

1. Under the Food Standards Act 1999 which created the Food Standards Agency (FSA). The FSA and the Secretary of State for Health and Social Care share responsibility for food safety, subject to the devolution of functions in Scotland and Wales. Northern Ireland has similar legislation.
2. The Food Safety Act 1990 (Amendment) Regulations 2004[1] and the General Food Regulations 2004[2] made the changes necessary to make the provisions of the 1990 Act consistent with the general food law Regulation (EC) 178/2002.

In particular, regulation 3 of the Food Safety Act 1990 (Amendment) Regulations 2004 amended the definition of ‘food’ under the 1990 Act so that is has the same meaning as in Regulation (EC) 178/2002.

Whilst, at first sight, the arrangements in England, Wales, Scotland and Northern Ireland may appear to differ:

In practice, the food law rules of the various parts of the United Kingdom are unlikely to diverge very much because they are mostly made in implementation of common Community obligations.[3]

While much food law now comprises retained EU law it remains to be seen what divergences emerge both within Great Britain and in Northern Ireland which, for all practical purposes, remains a part of the single market.

The Food Standards Agency summarises[4] the main responsibilities of food businesses under the 1990 Act as being to ensure:

1. You do not include anything in food, remove anything from food or treat food in any way which means it would be damaging to the health of people eating it.
2. The food you serve, or sell is of the nature, substance or quality which consumers would expect.
3. The food is labelled, advertised and presented in a way that is not false or misleading.

 

2             The Definition of ‘Food’

Regulation (EC) 178/2002 established common definitions among EU Member States and widely defined ‘food law’ to include measures that extend beyond food and include, for example, all measures relating to materials and substances in contact with food or which may have a direct or indirect impact on the safety of food. These definitions are now incorporated in domestic law as a part of a body of law known as retained EU law.

The definitions of ‘food’ and ‘feed’ are set out in Article 2 and Article 3 respectively. Article 2 provides:

For the purposes of this Regulation, ‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.

‘Food’ includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC and without prejudice to the requirements of Directives 80/778/EEC and 98/83/EC.

‘Food’ shall not include:

(a) feed;

(b) live animals unless they are prepared for placing on the market for human consumption;

(c) plants prior to harvesting;

(d) medicinal products within the meaning of Council Directives 65/65/EEC and 92/73/EEC;

(e) cosmetics within the meaning of Council Directive 76/768/EEC;

(f) tobacco and tobacco products within the meaning of Council Directive 89/622/EEC;

(g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971;

(h) residues and contaminants.

Oysters and other live shellfish fall within the definition of ‘food’ where, in accordance with paragraph (b) above, they are prepared for placing on the market for human consumption.

Where a product falls within the definition of both a ‘food’ and a ‘medicinal product’ within the meaning of paragraph (d) above, EU law specific to medicinal products alone applies.^[5] It has been held that a garlic capsule is not a medicinal product.^[6]

In the case of ‘feed’, Article 3 provides:

‘(F)eed’ (or ‘feedingstuff’) means any substance or product, including additives, whether processed, partially processed or unprocessed, intended to be used for oral feeding to animals.

 

3             Extended Meaning of ‘Sale’ of Food

Under the law of contract, a sale arises where there is an offer to sell by one party and acceptance by the other party which is accompanied by an intention to create legal relations and valuable consideration which passes between the parties. In the ordinary course of events a customer offers to purchase goods from a trader and the contract is agreed when the trader accepts the offer and the price paid, the valuable consideration, for the goods.[7]

The display of goods on a stall is not an offer for sale but an invitation to treat, it is the customer who makes the offer to buy at the price indicated or by striking a bargain.

The prohibitions and restrictions imposed under the 1990 Act are expressed in terms which encompass offering, exposing or possessing for sale. Exposure for sale involves exposure to view in a setting where sales are taking place or are expected.[8] Margarine may be exposed for sale although wrapped in paper and so not visible.[9]  Possession means actual possession, it includes possession by an agent and is not narrowly defined.[10] However, food left for collection at a place agreed in the contract of sale may no longer be in the possession of the seller.[11]

Finally, the general meaning of ‘sale’ is extended by the 1990 Act to include “the supply of food, otherwise than on sale, in the course of a business” and “any other thing which is done with respect to food and is specified in an order made by the Secretary of State”. The 1990 Act also includes food which is offered as a prize or reward or given away in connection with any entertainment.[12]

 

4             Human Consumption

The 1990 Act is concerned with the sale of food for human consumption[13] in relation to which three presumptions are set out in section 3:

(2)            Any food commonly used for human consumption shall, if sold or offered, exposed or kept for sale, be presumed, until the contrary is proved, to have been sold or, as the case may be, to have been or to be intended for sale for human consumption.

 

(3)            The following, namely—

1. any food commonly used for human consumption which is found on premises used for the preparation, storage, or sale of that food; and

2. any article or substance commonly used in the manufacture of food for human consumption which is found on premises used for the preparation, storage or sale of that food;

 shall be presumed, until the contrary is proved, to be intended for sale, or for manufacturing food for sale, for human consumption.

 

(4)           Any article or substance capable of being used in the composition or preparation of any food commonly used for human consumption which is found on premises on which that food is prepared shall, until the contrary is proved, be presumed to be intended for such use.

The effect of these presumptions is that, save for domestic situations, food is treated as being for human consumption unless and until the contrary is proven. There is, therefore, an evidential burden placed on the defendant sufficient to raise the issue, but it remains for the prosecution to prove, beyond a reasonable doubt, that the defence has not been established.

 

5             Food Authorities

The overwhelming majority of food law enforcement is undertaken by local authorities, in England these are principally the London boroughs, the district councils and the non-metropolitan county councils[14] and, in Wales, the county councils and county borough councils.[15]

This gives rise to instances of concurrent responsibility which in some situations is clarified in legislation. The functions relating to emergency prohibition notices and orders under section 12 of the 1990 Act are carried out only by district councils while those concerning falsely describing or presenting food under section 15 are the responsibility of county councils.[16] In other areas the Food Standards Agency provides guidance on inter-authority liaison.[17]

Every food authority is required to enforce the 1990 Act within its area where that duty has not been placed on some other authority.

 

6             Offences

The principal offences under the 1990 Act are to be found in sections 7, 14 and 15 as amended and supplemented by The General Food Regulations 2004[18] and The Food Safety and Hygiene (England) Regulations 2013.[19]

6.1          Rendering Food Injurious to Health

Any person who renders any food injurious to health by adding any article or substance, using any article or substance as an ingredient, abstracting any constituent or subjecting food to any other process or treatment, with intent that it shall be sold for human consumption is guilty of an offence.[20]

Positive steps are required to add, use or abstract something or subject to a process. An offence would not be committed under the provision where food becomes injurious to health by, for example, the process of decomposition.

Generally, reliance is placed on other provisions in bringing proceedings. Offences under the 1990 Act are generally of strict liability whereas section 7 requires proof of intent that food is to be sold for human consumption.

6.2         Failure to Comply with Food Safety Provisions of Article 14

The substance of section 8 of the 1990 Act has been superseded by Article 14 of general food law Regulation (EC) 178/2002. Any person who contravenes or fails to comply with the food safety requirements of Article 14(1) is guilty of an offence.[21]

6.3         Food Not of the Nature, Substance or Quality Demanded

The formulation now found in section 14 of the 1990 Act has been in existence since 1875. It is an offence for a person to sell to the purchaser’s prejudice any food that is not of the nature or substance or quality demanded by the purchaser.

The purchaser may stipulate qualities or characteristics which the food must possess, but this is not usually the case and in the absence of any regulatory standards it is for the court to decide on the evidence what the purchaser had demanded.

6.4         Falsely Describing Food

The general prohibition on the misleading labelling of food is to be found in Article 16 of the general food law Regulation (EC) 178/2002

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.

More specific provisions are to be found in Article 7 on fair information practices of the food information to consumers Regulation (EU) 1169/2011.

Section 15(1) of the Food Safety Act 1990 makes it an offence to give with any food sold, or display with any food offered or exposed for sale, or in possession for sale, a label, whether attached to or printed on the wrapper or container which falsely describes the food or is likely to mislead as to the nature or substance or quality of the food.

Section 15(2) extends these provisions to advertising so that it is an offence to publish, or be a party to the publication of, an advertisement that falsely describes any food or is likely to mislead as to the nature or substance or quality of the food.

Section 15 is in addition to the offences contained in the Food Information Regulations 2014[22] which are the domestic enforcement regulations for Regulation (EU) 1169/2011.

 

7             Defences

The criminal law generally requires mens rea or proof of criminal intent to secure a conviction for an offence. In a number of situations Parliament has decided that some things are so important they must be prohibited absolutely, and food legislation has generally always fallen into this category and created offences of strict liability. In order to lessen their impact on the honest trader, however, a number of statutory defences have been introduced.

7.1          Offences Due to the Fault of another Person

Section 20 of the 1990 Act provides a partial defence where the commission of an offence is due to an act or default of some other person. In these circumstances that other person may be prosecuted and convicted of the offence regardless of whether or not the first is subject to prosecution. So it is not necessarily a complete defence.

7.2          Defence of Due Diligence

Section 21(1) of the 1990 Act provides that it shall be a defence for the person charged with an offence to prove that she or he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by her or himself or by a person under their control.

Specific criteria are laid down in relation to the offences under section 14 and 15, without prejudice to the generality of section 21(1), in the case of persons who neither prepared nor imported the food in issue.[23] Where these criteria are satisfied the defence is established.

If the defence involves an allegation that the commission of the offence was due to the act or default of another person, the defence cannot be relied upon, without leave of the court, unless at least seven clear days before the hearing and within one month of a first appearance before the court in connection with the matter, written notice has been served on the prosecutor giving such information then known identifying or assisting in the identification of that other person.[24]

7.3          Defence of Publication in the Course of Business

Section 22 of the 1990 Act provides a defence for persons who innocently publish adverts. In proceedings for an offence involving the advertisement for sale of any food, it is a defence to prove that she or he is a person whose business it is to publish or arrange for the publication of advertisements and he or she received the advertisement in the ordinary course of business, did not know and had no reason to suspect that its publication would amount to an offence.

 

8             Power to Inspect and Seize Food

Section 9 of the 1990 Act provides authority for an authorised officer of a food authority, at all reasonable times, to inspect any food intended for human consumption which:

1. Has been sold or is offered or exposed for sale.
2. Is in the possession of, or has been deposited with or consigned to, any person for the purpose of sale or of preparation for sale.
3. Is otherwise placed on the market within the meaning of Article 3(8) of Regulation (EC) No 178/2002.

Where, on inspection, it appears to an authorised officer that any food fails to comply with food safety requirements or, otherwise than on inspection, it appears that any food is likely to cause food poisoning or any disease communicable to human beings, the authorised officer may:

1. Give notice to the person in charge of the food that, until the notice is withdrawn, the food or any specified portion of it is not to be used for human consumption; and either is not to be removed or is not to be removed except to some place specified in the notice.
2. Seize the food and remove it in order to have it dealt with by a justice of the peace

Any person who knowingly contravenes a notice commits an offence.

Guidance on the operation of powers to seize and detain food is given in the Food Standards Agency’s Food Law Code of Practice (England) and associated Food Law Practice Guidance (England). [25]  These are covered in more detail in Food Safety General: Inspection, Detention and Seizure.

 

9             Improvement Notices

Section 10 of the 1990 Act provides that an authorised officer may serve an improvement notice on the proprietor of a food business[26] where he or she has reasonable grounds for believing that the proprietor is failing to comply with any hygiene regulations or regulations controlling the processing or treatment of food.

Any person who fails to comply with an improvement notice commits an offence.

Improvement notices are covered in detail in Food Hygiene: Unhygienic Food Businesses: Improvement Notices.

 

10          Prohibition Orders

Section 11 of the 1990 Act creates two categories of prohibition order. Firstly, if the proprietor of a food business is convicted of an offence under hygiene or processing regulations the court is satisfied that the health risk condition is fulfilled with respect to that business the court shall impose the appropriate prohibition.[27] In this category the court has no discretion and is under a duty to impose a prohibition.

Secondly, if the proprietor or manager of a food business is convicted of an offence under hygiene regulations and the court thinks it proper to do so in all the circumstances of the case, the court may impose a prohibition on the proprietor of a specified class or description.[28]

These administrative sanctions have been adopted in regulation 7 of the Food Safety and Hygiene (England) Regulations 2013[29] regarding hygiene prohibition orders.

Guidance on the operation of prohibition orders is given in the Food Standards Agency’s Food Law Code of Practice (England)[30] and associated Food Law Practice Guidance (England).[31] These are covered in detail in Food Hygiene: Unhygienic Food Businesses: Prohibition Notices, and in Emergency Prohibition Notices and Orders.

 

11           Regulations and Orders

General food law Regulation (EC) 178/2002 developed food controls in ways the secondary legislative powers under the Food Safety Act 1990 have not been adequate to cover.

Regulations and orders made under the 1990 Act are made by statutory instrument subject to annulment by resolution of either House of Parliament.[32] The Secretary of State shall, subject to some exceptions, consult with such organisations as appear to be representative of interests likely to be substantially affected. Consultation undertaken by the Food Standards Agency may be treated as being effective for these purposes.[33]

In practice consultation under Article 9 of Regulation (EC) 178/2002 takes precedence.

 

12           Public Analysts

12.1        Public Analysts

Public analysts were first appointed in the second half of the nineteenth century. Every food authority is required to appoint a public analyst[34] to act as principal scientific adviser and who holds a public office with a degree of independence.

Public analysts are responsible for carrying out the analyses required for the purpose of enforcement proceedings and issue certificates of non-compliance in relation to food under several regulations.

12.2       Food Analysts and Food Examiners

A ‘food analyst’ means a public analyst or other person who possesses the requisite qualifications to carry out analyses for the purposes of the 1990 Act.

A ‘food examiner’ means a person who possesses the requisite qualifications to carry out examinations,[35] meaning a microbiological examination,[36] for the purposes of the 1990 Act.

The qualifications of both are prescribed by The Food Safety (Sampling and Qualifications) (England) Regulations 2013.[37]

12.3       The Government Chemist

The Government Chemist has a statutory function to act as an independent and impartial referee analyst, authorised analyst and analyst by reference to or pursuant to certain legislation, including:

• The Food Safety Act 1990
• Food Safety (Sampling and Qualifications) Regulations 2013[38]
• Materials and Articles in Contact with Food (England) Regulations 2012[39]
• Agriculture Act 1970
• Genetically Modified Animal Feed Regulations 2004[40]
• The Animal Feed (Hygiene, Sampling etc. and Enforcement) (England) Regulations 2015[41]
• Natural Mineral Water, Spring Water and Bottled Drinking Water Regulations 2007[42]
• Human Medicines Regulations 2012[43]

The Government Chemist also has an advisory function to act as a source of advice for HM Government and the wider analytical community concerning the analytical chemistry implications in matters of policy, standards and regulation.