The Food Standards Agency is quietly proposing the most dramatic shake-up of regulations in almost 20 years. Nick Hughes looks at the details.
You could be forgiven for not having heard of “Regulating Our Future”. The document was pushed out by the Food Standards Agency in the middle of summer to little fanfare or media interest. But its proposals represent arguably the most radical changes to the way UK food businesses are regulated since the FSA itself was created in 2000.
At the core of the proposals is a move towards more “private regulated assurance” whereby businesses will be able to use their own internal audits or private assurance standards, such as those developed by BRC Global Standards, to demonstrate compliance with food safety and standards law. In some cases this could mean businesses are subjected to no local authority inspections whatsoever. The FSA vehemently denies that this constitutes greater self-regulation; critics, however, are adamant that, in effect, this is precisely what the proposals would entail.
With food safety back in the spotlight after a Guardian investigation revealed alleged malpractice at Britain’s largest chicken supplier, debate over the FSA’s proposals is only likely to intensify.
So what’s driving the need for change, how will the FSA’s proposals affect businesses if adopted and can the regulator guarantee that our food will remain safe?
The FSA says the time has come “to create a modern, risk-based, proportionate, robust and resilient regulatory system to keep up with the pace of change in the global food economy”.
Since February 2016 it has been consulting with consumers, food businesses, other parts of local and national government, and food regulators in other countries, to develop a future approach to food regulation in England, Wales and Northern Ireland.
The FSA argues that the existing one-size-fits-all approach to regulating food businesses is no longer suited to the incredibly diverse nature of the industry. It notes the recent entry into the market of new, disruptive players such as online retailers and food delivery services, which have created new risks that the current system does not have the ability to respond to.
In particular, the FSA cites its inability to know in real time how many food businesses actually exist or who is operating them.
It also says the current model is financially unsustainable, with local authorities battling against swingeing budget cuts and taxpayers bearing the cost of food regulation in a way that is incompatible with wider government policy. In future, the FSA wants businesses to meet the cost of regulation which “should be no more than they need to be”, hence the greater reliance on businesses’ own assurance systems and the use of certified regulatory auditors (CRAs) from the private sector.
The proposals are hugely contentious within the law enforcement community. One long time environmental health officer (EHO), who asked to remain anonymous, tells Footprint: “I don’t dispute for a minute that we need to change the operating model, but we can do that quite easily without businesses carrying out their own audits or third-party checks simply by stretching inspection frequencies slightly so that places that truly have a good record can prove it.”
The FSA, however, says that by allowing businesses to prove the ways in which they comply with the rules and regulations that protect the public, it can reduce the amount of duplication in checks and inspections that many businesses face.
Two pilot projects were carried out between September and December 2016 involving Tesco and Mitchells & Butlers (MAB) with the aim of testing the consistency between local authority food hygiene interventions, second-party (external) audits and first-party (internal) audits.
The MAB pilot was carried out by Bristol city council, MAB and the firm’s private auditors, NSF International. It comprised a desktop analysis and comparison of relevant legislation with MAB’s food safety policy; inspections of MAB businesses whereby the company’s internal safety technicians and NSF auditors were shadowed by local authority officers; and comparison of historical inspection data between the council and NSF.
The FSA concluded that the consistency between the council’s and NSF food hygiene rating scheme’s ratings demonstrated that there is potential for second- or third-party audits to provide an alternative inspection regime to those currently carried out by local authorities.
However, the pilot also revealed a shift towards local authority officers having reduced confidence in MAB’s food safety management and audit systems following the exercise. One comment from an EHO who took part in the pilot is indicative of wider concerns within the environmental health sector that business-level assurance standards are not always implemented locally: “I would expect that the FSMS [food safety management systems] for a large company would require standards and practices that comply with legal requirements, but it is the local implementation of that FSMS that will determine whether safe food is delivered.”
Julie Barratt, an environmental health specialist and former director of the Chartered Institute of Environmental Health in Wales, shares these concerns. “The issue is not with the head office that’s producing a lovely guidance document that stores have to follow, it’s the local manager who uses his initiative to do something which then goes wrong.”
Barratt cites the example of Asda, which was recently fined £700,000 for an outbreak of mice in its Wirrall store. “Asda didn’t know about that but the store manager must have known he had mice,” she says.
The FSA claims it will continue to inspect and assure each private assurance scheme to be confident that its standards, independence and trustworthiness meet its expectations. A spokesperson adds that “robust mechanisms will be in place to verify the integrity of data coming from regulated private assurance”.
Critics, however, point to a clear potential conflict of interest where private auditors employed by food companies to carry out audits, and who therefore have a financial incentive to maintain good relations with that business, are also responsible for enforcing the law.
“What if the audit is of a big chain pub and it’s got a mouse infestation?” says the EHO. “Our officer will ring back to the office and two or three of us will go out, secure evidence, take samples and photographs, and caution people. Is the CRA going to ring us up or do we have to wait for their report to come in? Or what if the pub area manager says to them: ‘I agree but you inspect all of our premises which is worth £1m to you, so do you want to think about your decision and come back next Tuesday and we’ll have solved it by then?’”
Barratt believes the use of CRAs could also critically undermine the Food Hygiene Rating Scheme, which rates restaurants, takeaways and food shops according to their hygiene standards. “At the moment ratings inspections are done by EHOs as part of the food hygiene inspection and there’s confidence in the scheme because it’s independent and consistent,” she says. “If we start introducing auditors into this scheme and say that your in-house audit constitutes part of your food hygiene rating, I think the food hygiene rating system crashes and burns.”
The FSA in response says: “The integrity of a new model that includes the use of regulated private assurance will be fundamentally dependent on meeting the standards that we will set.”
There is contention too over how the new system will be paid for. The FSA says it will introduce a new funding model to ensure the sustainability of the system, which will involve a transparent charging regime with businesses that require the most intervention from government bearing the highest costs.
There is concern, however, that small businesses, which cannot afford their own private assurance schemes, will end up bearing a disproportionately large cost. “Small businesses like the idea of a local government official going in unannounced,” says the EHO. “We’re not being paid for our services, we’re totally independent, we are there for the council tax payers, we inspect on their part. Are we going to get to a stage where I can’t answer a simple yes or no question over the telephone, and have to direct the business through a call centre where they have to pay £50?”
Footprint has seen evidence that small businesses are already concerned about the cost implications of the new proposals, which come on top of the recent introduction of the “national living wage” as well as a government requirement for small businesses to provide pension schemes.
When asked how it would ensure that SMEs would not be disproportionately burdened with additional costs, the FSA said: “It will be critical for us to ensure that for all businesses, large and small, the method used is transparent and fair so that no particular sector is disadvantaged.”
The ideal outcome for the FSA is to have a permit-to-trade requirement placed on all food businesses, which would make it aware of new businesses before they start producing, selling or serving food, and potentially allow it to charge for each new permit. However, this would require new legislation, which could take several years to bring forward. In the meantime, the FSA says it plans to do all it can to get close to the benefits of a permit to trade by enhancing the current registration system.
The ultimate aim is for a new regulatory model for food businesses to be fully operational by 2020. The FSA says it welcomes further input from interested parties, although several stakeholders contacted by Footprint have complained that “Regulating our Future” was presented as a fait accompli.
One thing’s for sure: as Britain prepares to leave the EU – for so long the foundation of UK food law – the future of how our food is regulated has rarely seemed more uncertain.