Minutes of Enforcement Liaison Group meeting: 8 June 2007

Julie Monk (Chair), Food Standards Agency (FSA)
Phil Dalton, British Retail Consortium (BRC)
Andrew Opie, BRC
Andrew Jamieson, Royal Environmental Health Institute of Scotland (REHIS)
Garth Broughton, Health & Safety Executive (HSE)
Gwyneth Beddoe, Local Authorities Coordinators of Regulatory Services (LACORS)
John McKee, Northern Ireland Eastern Group Environmental Health Committee
Jenny Morris, Chartered Institute of Environmental Health (CIEH)
David Pickering, Trading Standards Institute (TSI)
Alan Richards, Association of Public Analysts (APA)
Mike Eyre, Meat Hygiene Service (MHS)
Susan Knox, Foodaware
Sue Davies, Which
Dr Susan Surman-Lee, Health Protection Agency
Nick Baker, North Norfolk
Stuart Musgrove, Institute of Food Science and Technology (IFST)
Jeanette Longfield, Sustain
Kevin McMunn, North Ayrshire Council
Paula Waldron, FSA
Geoff Deville, FSA
Stephen Humphreys, FSA
Catriona Stewart, FSA
Colin Houston, FSA
Ceri Cooper, FSA
Nathan Philippo, FSA
Troy Sinclair, FSA
Philip Flaherty, FSA
Marion McArthur, FSA Scotland
Rob Wilkins, FSA Wales
Akki Khan (Secretariat), FSA

Julie Monk welcomed members of the Enforcement Liaison Group (ELG) to the meeting. Apologies were received from Wendy Martin (LACORS), Andrea Martinez–Inchausti (BRC), Michael Bassett (Carmarthenshire County Council), Richard Withers (MHS) and Michael Hunt (Food and Drink Federation, FDF).

The minutes of the 22 November 2006 meeting were accepted as an accurate record.

Paula Waldron provided the ELG with a presentation on Prior Approval. At the FSA board meeting on the 15 March 2007 the Board wanted to gather stakeholders views about withdrawing the proposal on Prior Approval, to focus an alternative options. Paula noted that:

• Prior Approval can focus on the structure of an establishment rather than food hygiene activities and there was no evidence to support the idea that it improved consumer protection
• it would direct resources away from the existing risk-based approach to enforcement
• an alternative would be to enhance the existing registration scheme with local authorities
• the nature of regulation is changing, focussing on a policy of risk-based interventions, for example the use of Scores on Doors pilots

Ceri Cooper also presented a paper which was circulated to ELG members at the meeting outlining a model which identified the impact of such a scheme .This identified that:

• there were 25,000 new food businesses in 2005 (Inter-Departmental Business Register) which was equivalent to 36,000–71,000 new establishments
• annual cost of Prior Approval visits to new establishments was estimated at £2.7m–£5.5m for local authorities and £0.7m–£1.4m for industry

It was identified that there was inconclusive evidence of the benefits of Prior Approval. This was then opened up for forum discussion.

Sue Davies felt that Prior Approval was very important and that registration of businesses would help consumers. Scores on the Doors was an important scheme but it is not a substitute for Prior Approval. Nick Baker noted that there were different problems for different areas, and having a new system in place in the first month was not a guarantee for the second month, and therefore he was not in favour of a Prior Approval system. Gwyneth Beddoe was concerned about local authority resources to implement such a scheme and said that the issue of Prior Approval would be inserted in the LACORS Policy Forum paper. Jeanette Longfield was concerned that there was not enough money to enforce the law and that local authorities do not know where new businesses are. Nick Baker responded by saying this was not correct and that within Norfolk they would know, within a short space of time, where a new business is located. John McKee informed the ELG that for Prior Approval to go ahead, more resources would be needed and that the time factor for Prior Approval is very long. Jenny Morris added that it was very important to find out about unregistered businesses quickly. Andrew Opie stated that the burden would fall on businesses that do register and that the impact of Prior Approval on industry would be huge.

Julie Monk thanked Paula Waldron and Ceri Cooper for their presentation and the views of the ELG group.

• Action: Paula Waldron to ensure that ELG views are reflected in the Board paper scheduled for September.

Catriona Stewart introduced this paper on the Agency's proposals for applying the provision in Regulation 882/2004 on expenses arising from additional official controls – Article 28 charges – which were currently subject to public consultation. She highlighted that the issues around this are complex and that the Agency was seeking the views and comments of stakeholders on these before the legal measure and associated guidance that is being developed (with the aim of ensuring consistency in applying charges) are finalised. In particular, the ELG was asked for its views on three key questions:

• In what circumstances can charges be applied?
• Which feed/food business operators will be subject to charges?
• How much can the competent authorities charge?

In the discussion that followed Catriona clarified that: charges may only be made for official control activities and not for enforcement measures; that the authorities have the option to charge the operators responsible for the non-compliance or may charge the operator owning or keeping the goods at the time when the non-compliance is detected; and that businesses will not have a formal right of appeal, but rather it would be for the competent authority to sue a business refusing to pay through the civil courts.

ELG members raised a number of points. Dr Surnam-Lee asked for clarification of who was the 'responsible person' under the legislation. Andrew Opie asked if the FSA would track down the originator of contamination in a food scare. There was concern about the burden for local authorities in applying and administering charges and on the potential difficulties that may arise in cases where multiple authorities are involved as some authorities might charge whilst others might not and thereby weaken the case of those that do. Gwyneth Beddoe said LACORS doubted that local authorities would take action if there were issues over costs or burden of proof. There was also concern about possible confusion for authorities if Defra and the FSA do not take a consistent approach. It was suggested that the guidance must clarify that costs already recovered under Article 28 could not then be claimed as costs via the courts where prosecutions are taken. From an industry perspective, there was concern that there may be a tendency in cases where it is difficult to trace who is responsible for the non-compliance that large companies selling the end product may be unfairly penalised. Also, it was considered that application of Article 28 may dissuade some businesses from working with local authorities to determine the source of contamination, such as where there is a listeria problem because of the possibility of being charged. Phil Dalton stated that the documentation needed to be clearer about what is an 'exceptional case'.

Julie Monk thanked Catriona Stewart for her presentation.

• Action: The FSA will consider carefully the points raised in the discussion and will reflect these, where appropriate, in the final measures.

David Pickering introduced the issue of sampling and Public Analyst services and sought views on the role of the Public Analysis Service in the future and its decline. Jeanette Longfield’s view was that it was very serious that there was a decline in public analysis service as this was an important part of enforcement. Sue Davis agreed with this. Jenny Morris added that sampling was very important to intelligence led enforcement. Colin Houston informed the ELG that all five points mentioned in the ELG paper ELG 02/002A have been addressed and that there will be a meeting in July. The issue is not about the number of samples but about the quality of sampling. There would be a full consultation in October 2007. All views could be put forward to Colin Houston. Alan Richards said that public analysis were under threat because the demand to replace existing public analysts when they retired was not there. Stuart Musgrove said the real issue was what scientific support was needed for food law enforcement, and also added that there should be more national and regional laboratories. Dr Surman-Lee said that there should be a long term project to train people wishing to become public analysts. John McKee stated that when they recently went out to tender in Northern Ireland to recruit public analysis they were not successful. There must be a profit for public analysis to undertake their role.

Julie Monk thanked David Pickering for his presentation and views from ELG members.

• Action: Colin Houston to take forward the consultation in partnership with stakeholders.

Paula Waldron updated the ELG on the Changes to Local Authority Enforcement (CLAE). A number of points were mentioned:

• CLAE will allow local authorities to focus on high risk establishments
• it will allow local authorities to measure compliance
• CLAE will clarify official controls, such as inspections, verification, audit, information gathering and sampling
• credit will be given to local authorities on 'Education and Advice', such as Safer Food Better Business (SFBB)

A draft revision of the Code of Practice will be issued soon with a 12-week consultation period. The monitoring consultation has closed and the FSA is now working with the software companies to develop the necessary system changes to local authority system to enable them to work with the new Local Authority Enforcement Monitoring System (LAEMS). A brief outline on the proposed changes to the Code of Practice was also given such as including approved premises within the overall risk rating framework, and rewriting the definitions on inspections.

Paula Waldron also mentioned the idea of a second longer term, review of the Code of Practice, which is under discussion internally; she asked the ELG if this should also be an external review, Gwyneth Beddoe mentioned that the LACORS Food Policy Forum would discuss this issue on 18 or 19 July 2007. Nick Baker stated that he would like the Code of Practice to give local authorities more flexibility; Gwyneth Beddoe said that local authorities needed a strategy towards the Code of Practice rather than ad hoc changes.

Julie Monk thanked Paula Waldron for the update on Code of Practice and views from ELG members.

This agenda item was removed from the agenda.

Julie Monk asked ELG members for views about what improvements can be made to the ELG meetings in the future. Jenny Morris stated that it would be good to have a healthy mixture of different groups and to avoid being dominated by regulation issues. Nick Baker wanted other Business groups represented at the ELG meetings and also asked why the Small Business Service (SBS) were not at the meeting today (Secretariat note: SBS were invited to the meeting, but could not attend). Nick Baker suggested that the agenda of the ELG meetings should be set so that it is of interest to both the ELG and also to a wider audience, and to change the term 'Enforcement' to 'Regulation'. Julie Monk asked the ELG what type of items they would like to be discussed at future ELG meetings. Alan Richards would like to see interesting case studies discussed at the ELG, to look at how European Food Safety Authority (EFSA) works. Nick Baker suggested discussing the Ashford Listeria issue and how the FSA will interact with this, Colin Houston stated that there were many issues that could be discussed at an ELG meeting, topics such as Sudan I, Food Fraud Task Force, Traffic Light Labelling Scheme, and EFSA. John McKee suggested discussing the FSA Five-Year Strategic Plan; Jenny Morris suggested discussing the Food Fraud Task Force; a European and UK view. Phil Dalton added that he would like to see Nutrition and Health Claims Regulation discussed with guidance on the subject matter.

Suggested agenda items to be discussed at future ELG meetings:

• How EFSA works
• Ashford Listeria issue and how the FSA will interact with this
• Sudan I
• Traffic Light Labelling Scheme
• FSA Five-Year Strategic Plan
• Food Fraud Task Force – a European and UK view
• Nutrition and Health Claims Regulation with guidance on the subject matter

It was agreed that the next ELG meeting would take place in November 2007 with an earlier start time of 10:30am. The ELG Secretariat would be in touch to assess availability nearer the time.